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EXHIBIT 99.3
REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
as
of March 9, 2005 by and among (i) Fidelity
National Information Services, Inc.,
a Delaware corporation (the "Company"), and
the Securityholders (as herein
defined). Certain capitalized terms used
herein are defined in Section 1.1.
The
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1
Definitions.
"Affiliate" of any particular Person means any other Person
Controlling,
Controlled by or under common Control with
such particular Person or, in the
case of a natural Person, any other member
of such Person's Family Group.
"Agreement" has the meaning set forth in the preamble.
"BACI
Holder" means Banc of America Capital Investors, L.P.
"Board" or
"Board of Directors" means the Board of Directors of the
Company.
"Closing
Date" has the meaning given such term in the Stock Purchase
Agreement.
"Common
Stock" means the Company's common stock.
"Company"
has the meaning set forth in the preamble.
"Company
Qualified Public Offering" has the meaning set forth in Section
2.1(b).
"Control"
(including, with correlative meaning, all conjugations thereof)
means with respect to any Person, the
ability of another Person to control or
direct the actions or policies of such
first Person, whether by ownership of
voting stock, by contract or otherwise.
"Demand
Registration" has the meaning given to such term in Section
2.1(a).
"Employee"
means each of the other Securityholders that are then employees
of the Company.
"Exchange
Act" means the Securities Exchange Act of 1934, as amended.
"Evercore
Holder" means Evercore METC Capital Partners II L.P.
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"Family
Group" means, with respect to any individual, such individual's
spouse and descendants (whether natural or
adopted) and any trust, partnership,
limited liability company or similar
vehicle established and maintained solely
for the benefit of (or the sole members or
partners of which are) such
individual, such individual's spouse and/or
such individual's descendants.
"FNF"
means Fidelity National Financial, Inc.
"Incidental Registration" has the meaning given such term in
Section
2.2(a).
"Indemnified Party" has the meaning given such term in Section
2.7(a).
"Losses"
has the meaning given such term in Section 2.7(a).
"NASD" has
the meaning given such term in Section 2.5(k).
"NASDAQ"
means the National Association of Securities Dealers Automated
Quotation System.
"Person"
means an individual, a partnership, a joint venture, a
corporation, an association, a joint stock
company, a limited liability company,
a trust, an unincorporated organization or
a government or any department or
agency or political subdivision
thereof.
"Proceeding" has the meaning given such term in Section 2.7(c).
"Public
Offering" means an offering and sale to the public of any
equity
securities of the Company or any of its
subsidiaries pursuant to an effective
registration statement filed with the SEC
pursuant to the Securities Act, as
then in effect, provided that a Public
Offering shall not include an offering
made in connection with a business
acquisition or combination or an employee
benefit plan.
"Qualified
Public Offering" means a Public Offering whereby the offered
shares trade on a national securities
exchange or NASDAQ, and in which, at the
election of the Company, either one of the
following criteria is fulfilled: (A)
(i) the price per share paid by the public
in such offering is at least $15.00
and less than $17.50, and (ii) the gross
proceeds to the Company would at least
equal an amount obtained by multiplying the
per share price in (A)(i) above by
that number of shares (the "1.5 Cap") equal
to 15% of the outstanding shares of
the Company after giving effect to the
offering, or (B) (i) the price per share
paid by the public in such offering is at
least $17.50, and (ii) the gross
proceeds to the Company would at least
equal an amount obtained by multiplying
the per share price in (B)(i) above by that
number of shares (the "1.75 Cap")
equal to 12.5% of the outstanding shares of
the Company after giving effect to
the offering. Any per share price contained
in this definition shall be subject
to adjustment for stock splits,
combinations and similar events.
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"Registrable Shares" means (i) Common Stock, issued or issuable
(upon
conversion of warrants, or otherwise) to
any Securityholder, excluding such
shares that (a) have been sold pursuant to
a Registration Statement, or (b) are
eligible to be sold or distributed in the
United States pursuant to Rule 144
(including, without limitation, Rule
144(k)) in a single transaction by any
Securityholder, and (ii) Common Stock to be
registered and sold pursuant to
Section 2.1(b).
"Registration Expenses" means all amounts payable by the Company
pursuant
to Section 2.5.
"Registration Notice" has the meaning given such term in Section
2.1(c).
"Registration Request" has the meaning given such term in Section
2.1(a).
"Registration Statement" means any registration statement of the
Company
under which any of the Registrable Shares
are included therein pursuant to the
provisions of this Agreement, including the
prospectus, amendments and
supplements to such registration statement,
including post-effective amendments,
all exhibits, and all material incorporated
by reference or deemed to be
incorporated by reference in such
registration statement.
"Requesting Holders" has the meaning given such term in Section
2.1(a).
"Rule 144"
means Rule 144 adopted under the Securities Act (or any
successor rule or regulation).
"SEC"
means the Securities and Exchange Commission.
"Securityholder(s)" means (i) the stockholders listed on Annex A
hereto
and their respective successors, assignees
and transferees who execute a
counterpart to this Agreement, and (ii)
those Persons who acquire Registrable
Shares in the future and become a party
hereto.
"Securities Act" means the Securities Act of 1933, as amended from
time to
time.
"Selling
Securityholder" means a Securityholder selling its shares
pursuant to the terms of this
Agreement.
"Shelf
Registration" has the meaning given such term in Section
2.1(a).
"Sponsor
Group" has the meaning given such term in Section 2.1(b)
"Sponsors"
means collectively, the THL Holders, the TPG Holders, the
Evercore Holder and the BACI Holder.
"Stockholders Agreement" means that certain Stockholders' Agreement
dated
as of the date hereof among the Company and
the other parties thereto.
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"Stock
Purchase Agreement" means that certain Stock Purchase Agreement
dated as of December 23, 2004, as amended,
among the Company and the other
parties thereto.
"Subsidiary" means any corporation with respect to which another
specified
corporation has the power to vote or direct
the voting of sufficient securities
to elect directors having a majority of the
voting power of the board of
directors of such corporation.
"THL
Holders" means collectively, Thomas H. Lee Equity Fund V, L.P.,
a
Delaware limited partnership, Thomas H. Lee
Parallel Fund V, L.P., Thomas H. Lee
Cayman Fund V, L.P., Thomas H. Lee
Investors Limited Partnership, Putnam
Investment Holdings, LLC, Putnam
Investments Employees' Securities Company I
LLC, and Putnam Investments Employees'
Securities Company II, LLC.
"TPG
Holders" means collectively, TPG Partners III, L.P., TPG
Parallel
III, L.P., TPG Investors III, L.P., FOF
Partners III, L.P., FOF Partners III-B,
L.P., TPG Dutch Parallel III, C.V., and TPG
Partners IV, L.P.
"Transfer"
means (in either the noun or the verb form, including with
respect to the verb form, all conjugations
thereof within their correlative
meanings) with respect to any security, the
gift, sale, assignment, transfer,
pledge, hypothecation or other disposition
(whether for or without
consideration, whether directly or
indirectly, and whether voluntary,
involuntary or by operation of law) of such
security or any interest therein.
ARTICLE 2
REGISTRATION RIGHTS
2.1 Demand
Registrations.
(a) Requests for Registration of Registrable Shares Owned by
the
Sponsors. Subject to the provisions of this
Article 2, each of (i) FNF and (ii)
subject to the provisions of 2.1(f), each
of (A) the THL Holders and (B) the TPG
Holders shall have the right to request
registration under the Securities Act
(the "Demand Right") of all or any portion
of the Registrable Shares held by
such Securityholders by delivering a
written notice to the principal business
office of the Company, which notice
identifies the Person(s) requesting
registration (the "Requesting Holders") and
specifies the number of Registrable
Shares to be included in such registration
(the "Registration Request");
provided, unless FNF and the Sponsor Group
otherwise consent, if the Company has
not already consummated a Public Offering,
the initial Demand Right must be for
a Qualified Public Offering. Any such
requested registration shall hereinafter
be referred to as a "Demand Registration."
With respect to any Demand
Registration, the Requesting Holders may
request the Company to effect a
registration of the Registrable Shares
under a registration statement pursuant
to Rule 415 under the Securities Act (a
"Shelf Registration").
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(b) Request for Registration of Registrable Shares by the
Company
for its own Account. Subject to the
provisions of this Article 2, each of (i)
FNF, and (ii) the holders of at least 75%
of the Registrable Shares then owned
by the THL Holders and the TPG Holders
(such holders, the "Sponsor Group") shall
have the right to request the issuance and
registration by the Company under the
Securities Act in an initial Qualified
Public Offering of newly issued shares of
Common Stock (a "Company Qualified Public
Offering"), by delivering a
Registration Request; provided, however,
that in no event will a Company
Qualified Public Offering require the
Company to issue a number of shares in
excess of the 1.5 Cap or the 1.75 Cap as
applicable.
(c) Effecting the Registration. Subject to the restrictions set
forth in Section 2.1(f), the Company will
give prompt written notice of any such
Registration Request (the "Registration
Notice") to all other holders of
Registrable Shares and will thereupon use
its reasonable best efforts to effect
the registration under the Securities Act
on any form available to the Company
of:
(i) in the case
of a Company Qualified Public Offering, the
Registrable Shares required to be registered by the Company;
(ii) the Registrable
Shares requested to be registered by the
Requesting Holders; and
(iii) all other Registrable Shares of the same type and class
which
the Company has received a written request to register
pursuant to Section
2.2(a) within 10 days after notice is
given by the Company pursuant to Section 2.2(a) and any
securities of the Company proposed to be included in such
registration by the Company for its own account (provided such
securities shall be of the same class required to be
registered under Section 2.1(a)).
(d) Preservation of Demand Registration. A registration
undertaken
by the Company at the request of the
Requesting Holder under Section 2.1(a) will
not count as a Demand Registration:
(i) if, pursuant
to the Demand Right, the Requesting Holders are
unable to register and sell at least 50% of the Registrable
Shares requested to be included in such registration by them,
unless such failure results from any act of, or failure to act
by, any of the Requesting Holders;
(ii) if the Requesting
Holders withdraw their Registration Request
prior to the time the Registration Statement therefor is
declared effective and promptly reimburse the Company for all
Registration Expenses incurred by the Company in connection
with effecting such registration, such Registration Request
shall not count as a Demand Registration so long as this
provision has not been
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previously utilized by the Sponsor Group within the
immediately preceding 18 months; or
(iii) if the Requesting Holders withdraw a Registration Request
upon
the determination of the board of directors of the Company to
postpone the filing or effectiveness of a Registration
Statement pursuant to Section 2.1(f).
(e) Priority on Demand Registration. If the sole or managing
underwriter of a Demand Registration
advises the Company in writing that in its
reasonable opinion the number of
Registrable Shares and other securities
requested to be included exceeds the number
of Registrable Shares and other
securities which can be sold in such
offering without adversely affecting the
distribution of the securities being
offered, the price that will be paid in
such offering or the marketability thereof,
the Company will include in such
registration the Registrable Shares in the
following priority:
(i) first, in
the event of a Company Qualified Public Offering,
the greatest number of securities of the Company proposed to
be included in such registration by the Company for its own
account, which in the opinion of such underwriters can be so
sold; and
(ii) second, after all
securities that the Company proposes to
register for its own account have been included in the case of
a Company Qualified
Public Offering, the greatest amount of
Registrable Shares requested to be registered by the holders
thereof which in the opinion of such underwriters can be sold
in such offering without adversely affecting the distribution
of the securities being offered, the price that will be paid
in such offering or the marketability thereof, ratably among
the holders of Registrable Shares (whether requested to be
registered pursuant to Section 2.1 or 2.2) based on the
respective amounts of Registrable Shares requested to be
included by each such holder.
(f) Restrictions on Demand Registrations. Except as otherwise
provided in this Section 2.1(f), following
the Company's initial Public
Offering, the Company shall not be
obligated to effect (i) more than two (2)
Demand Registrations pursuant to a Demand
Right exercised by the THL Holders
under Section 2.1(a), and (ii) more than
two (2) Demand Registrations pursuant
to a Demand Right exercised by the TPG
Holders under Section 2.1(a). No
Securityholder may exercise a Demand Right
under this Section 2.1 unless the
reasonably anticipated gross proceeds of
the resulting offering would exceed
$75,000,000. Any Demand Registration
requested must be for a firmly underwritten
public offering of Registrable Shares to be
managed by an underwriter or
underwriters of recognized national
standing selected by the Company and
reasonably acceptable to the Requesting
Holders. The Company may defer the
filing (but not the preparation thereof) of
a Registration Statement to effect a
Demand Registration
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if, after a request is made, the Board of
Directors of the Company has
determined in good faith, after
consultation with independent outside counsel,
that the filing of a Registration Statement
would require disclosure in the
Registration Statement of material,
non-public information in order to make the
statements in the Registration Statement
not misleading which the Company has a
bona fide business purpose for preserving
as confidential, and disclosure of
which would have an adverse effect on the
Company or its business. The Company
may defer the registration under this
paragraph (f) pursuant to the preceding
sentence until the earlier of (A) the date
upon which such material information
is disclosed to the public or disclosure of
which would no longer be material or
materially detrimental or (B) 90 days after
the Company first makes such good
faith determination; provided, however,
that the Company shall not utilize this
right to defer more than once in any
twelve-month period.
(g) Stock Splits. In connection with any Demand Registration
pursuant to this Section 2.1, each party to
this Agreement will vote, or cause
to be voted, all securities of the Company
over which it has the power to vote
or direct the voting to effect any stock
split which, in the opinion of the sole
or managing underwriter, is necessary to
facilitate the effectiveness of such
Demand Registration.
(h) Other Registration Rights. Except as provided in this
Agreement,
the Company shall not grant to any Persons
the right to request the Company to
register any equity securities of the
Company or any incidental or "piggy-back"
rights that are superior or pari pasu with
respect to any equity security of the
Company, or any securities convertible or
exchangeable into or exercisable for
such securities, without the prior written
consent of the Sponsor Group.
2.2 Incidental Registration.
(a) Requests for Incidental Registration. At any time the
Company
proposes to register for a Public Offering
any Common Stock under the Securities
Act, including registrations pursuant to
Section 2.1(a) and 2.1(b), whether or
not for sale for its own account, the
Company will give written notice to each
holder of Registrable Shares at least 20
days prior to the initial filing of
such Registration Statement with the SEC of
its intent to file such Registration
Statement (or, if earlier, within 5
business days of receipt of a Registration
Notice) and of such holder's rights under
this Section 2.2. Upon the written
request of any holder of Registrable Shares
made within 10 days after any such
notice is given by the Company (which
request shall specify the Registrable
Shares intended to be disposed of by such
holder), the Company will effect the
registration (an "Incidental Registration")
under the Securities Act of all
Registrable Shares which the Company has
been so requested to register by the
holders thereof; provided, however, that
if, at any time after giving written
notice of its intention to register any
securities and prior to the effective
date of the Registration Statement filed in
connection with such Incidental
Registration (each an "Incidental
Registration Statement"), (i) the Company
shall determine not to register such
securities for its own account (provided
such Company-initiated registration is not
pursuant to Section 2.1(b) hereof) or
to defer the registration of such
securities in accordance with Section 2.1(f),
or
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(ii) the Securityholder exercising a Demand
Right shall determine for any reason
not to register or to delay registration of
such securities, the Company or such
Securityholder, as the case may be, at its
election, may give written notice of
such determination to each holder of
Registrable Shares and, thereupon, (a) in
the case of a determination not to
register, the Company shall be relieved of
its obligation to register any Registrable
Shares under this Section 2.2 or
under Section 2.1 in connection with such
particular registration (but not from
its obligation to pay the expenses incurred
in connection therewith) and (b) in
the case of a determination to delay
registration, the Company shall be
permitted to delay registering any
Registrable Shares under this Section 2.2 or
under Section 2.1 during the period that
the registration of such other
securities is delayed.
(b) Priority on Incidental Registration. If the sole or
managing
underwriter of a registration advises the
Company in writing that in its opinion
the number of Registrable Shares and other
securities requested to be included
exceeds the number of Registrable Shares
and other securities which can be sold
in such offering without adversely
affecting the distribution of the securities
being offered, the price that will be paid
in such offering or the marketability
thereof, the Company will include in such
registration the Registrable Shares
and other securities of the Company in the
following order of priority:
(i) first, in
the event of a Company-initiated registration, the
greatest number of securities of the Company proposed to be
included in such registration by the Company for its own
account, which in the opinion of such underwriters can be so
sold; and
(ii) second, after all
securities that the Company proposes to
register for its own account have been included in the event
of a Company-initiated registration, the greatest amount of
Registrable Shares requested to be registered by the holders
thereof which in the opinion of such underwriters can be sold
in such offering without adversely affecting the distribution
of the securities being offered, the price that will be paid
in such offering or the marketability thereof, ratably among
the holders of Registrable Shares (whether requested to be
registered pursuant to Section 2.1 or 2.2) based on the
respective amounts of Registrable Shares requested to be
included by each such holder.
2.3 Registration on Form S-3
(a) Request for Registration. After twelve (12) months following
the
initial Public Offering of the Company's
securities pursuant to an effective
registration statement filed by the Company
under the Securities Act, if FNF or
any of the Sponsors request that the
Company file a registration statement on
Form S-3 (or any successor form to Form
S-3), or any similar short-form
registration statement, for a Public
Offering of Registrable Shares, the
reasonably anticipated gross proceeds from
the sale of such Registrable Shares
would exceed $25,000,000, and the Company
is a registrant entitled to
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use Form S-3 to register the Registrable
Shares for such an offering, the
Company shall (i) within ten (10) days of
the receipt by the Company of such
notice, give written notice of such
proposed registration to all other
Securityholders and (ii) as soon as
practicable, shall use its commercially
reasonable efforts to cause such
Registrable Shares to be registered on such
form for the offering and to cause such
Registrable Shares to be qualified in
such jurisdictions as the Securityholders
may reasonably request together with
all or such portion of the Registrable
Shares of any Securityholders joining in
such request as are specified in a written
request received by the Company
within twenty (20) days after receipt of
such written notice from the Company.
After the Company's first Public Offering,
the Company will use its best efforts
to qualify for and remain eligible to use
Form S-3 registration or a similar
short-form registration. For the avoidance
of doubt, a registration under this
Section 2.3(a) shall not be considered to
be a Demand Registration for any
purpose.
(b) Deferral of Filing. The Company may defer the filing (but
not
the preparation thereof) of a Registration
Statement required by Section 2.3 if,
after a request is made, the Board of
Directors of the Company has determined in
good faith after consultation with
independent outside counsel, that the filing
of a Registration Statement would require
disclosure in the Registration
Statement of material, non-public
information in order to make the statements in
the Registration Statement not misleading
which the Company has a bona fide
business purpose for preserving as
confidential, and disclosure of which would
have an adverse effect on the Company or
its business. The Company may defer the
registration under this paragraph (b)
pursuant to the preceding sentence until
the earlier of (A) the date upon which such
material information is disclosed to
the public or disclosure would no longer be
material or materially detrimental
or (B) 90 days after the Company first
makes such good faith determination;
provided, however, that the Company shall
not utilize this right to defer more
than once in any twelve-month period.
2.4 Holdback Agreements. Each Securityholder agrees that if
requested in connection with any Public
Offering made pursuant to this Agreement
for which a Securityholder has registration
rights pursuant to this Article 2 by
the managing underwriter or underwriters of
such underwritten offering, such
Securityholder will enter into an agreement
with the underwriters on customary
terms regarding restrictions on the ability
of the Securityholders, without the
prior written consent of the managing
underwriter, to sell their Registrable
Shares during the period commencing on the
date of the final prospectus to such
Public Offering and ending on the date
specified by the Company and the managing
underwriter; provided, that (i) the date so
specified will be no later than (A)
180 days after the date of such final
prospectus in the case of an initial
Public Offering, and (B) 90 days after the
date of such final prospectus for any
subsequent Public Offering, and will be the
same for all Securityholders that
enter into such agreements, and (ii) all
executive officers, beneficial owners
of more than 5% of the Company's capital
stock and directors enter into such
agreements. In order to enforce the
foregoing covenant, the Company may impose
stop-transfer instructions with respect
to
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the Registrable Shares of each
Securityholder (and the shares or securities of
every other person listed in clause (ii)
above) until the end of such period.
2.5
Registration Procedures. In connection with the registration of
any Registrable Shares, the Company shall
effect such registrations to permit
the sale of such Registrable Shares in
accordance with the intended method or
methods of disposition thereof, and
pursuant thereto the Company shall as
expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on a form available
for the sale of the Registrable
Shares by the holders thereof in accordance
with the intended method of
distribution thereof, and cause each such
Registration Statement to become
effective;
(b) (i) Except in the case of a Shelf Registration, prepare and
file
with the SEC such amendments and
post-effective amendments to each Registration
Statement as may be reasonably requested by
any Sponsor (if such Sponsor is
registering securities pursuant to such
Registration Statement) or necessary to
keep such Registration Statement
continuously effective for a period ending on
the earlier of (A) 90 days from the
effective date and (B) such time as all of
such securities have been disposed of in
accordance with the intended method of
disposition thereof; cause the related
prospectus to be supplemented by any
required prospectus supplement, and as so
supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in
force) under the Securities Act; and
comply with the provisions of the
Securities Act, the Exchange Act and the rules
and regulations of the SEC promulgated
thereunder applicable to it with respect
to the disposition of all securities
covered by such Registration Statement as
so amended or in such prospectus as so
supplemented; and (ii) in the case of a
Shelf Registration, prepare and file with
the SEC such amendments and
supplements to such Registration Statement
and the Prospectus used in connection
therewith as may be necessary to keep such
Registration Statements in compliance
with the Securities Act with respect to the
disposition of all Registrable
Shares subject thereto for a period ending
on the earlier of the date on which
all the Registrable Shares subject thereto
have been sold pursuant to such
Registration Statement or two (2) years
after effectiveness of the S-3.
(c) Notify the Selling Securityholders of Registrable Shares
promptly (but in any event within 2
business days), and
