EXHIBIT 99.2
VOTING AGREEMENT
This Voting Agreement, dated January 9, 2003 (this "Agreement"), is
entered into by and among Fidelity National Financial, Inc., a Delaware
corporation ("Fidelity"), and the holders party hereto (each, a "Holder," and
collectively, the "Holders") of the common stock, no par value, of ANFI, Inc., a
California corporation ("ANFI") (each of Fidelity and the Holders are sometimes
hereinafter referred to individually as a "Party" and, collectively, as the
"Parties").
R E C I T A L S:
WHEREAS, simultaneous with the execution and delivery of this Agreement,
Fidelity, ANFI and ANFI Merger Sub, Inc., a California corporation and
wholly-owned subsidiary of Fidelity ("Merger Sub"), have entered into that
certain Agreement and Plan of Merger, dated even date herewith (the "Merger
Agreement"), pursuant to which ANFI will be merged with and into Merger Sub,
with Merger Sub emerging as the surviving corporation, and
WHEREAS, the Holders will receive substantial benefit as a result of
Fidelity, Merger Sub and ANFI entering into the Merger Agreement and
consummating the transactions contemplated thereby, and Fidelity and Merger Sub
would not have entered into the Merger Agreement if the Holders had not executed
this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants contained herein, Fidelity and each Holder hereby agree as follows.
A G R E E M E N T:
ARTICLE 1.
DEFINITIONS
1.1 Definitions
As used herein, the following terms have the indicated meanings.
Capitalized terms not defined herein shall have the meanings set forth in the
Merger Agreement.
(a) "ANFI Share" means any share of the Common Stock, no par value
per share, of ANFI.
(b) "ANFI Shareholders Meeting" means the annual or special meeting
of ANFI's shareholders to consider and vote upon the matters set forth in the
Proxy Statement/Prospectus.
(c) "Holder Shares" means (i) the shares of issued and outstanding
capital stock of ANFI held of record or beneficially owned by a Holder and (ii)
additional shares of capital stock of ANFI acquired of record or beneficially
owned by a Holder subsequent to the date of this Agreement and prior to the time
of the ANFI Shareholders Meeting.
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(d) "Merger Agreement" means that certain Agreement and Plan of
Merger, of even date herewith, entered into by and among Fidelity, Merger Sub
and ANFI, including all exhibits thereto, and any amendments permitted pursuant
to Section 5.1.
(e) "Merger" means the merger described in the Merger Agreement.
(f) "Organizational Documents" of an entity means the articles of
incorporation, certificate of incorporation, charter, articles of organization
or formation, bylaws, operating or partnership agreement or other organizational
documents of such entity.
(g) "Transaction" means each of the transactions contemplated under
the Merger Agreement.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF THE HOLDERS
Each Holder, severally and not jointly, represents and warrants to
Fidelity regarding itself that the statements contained in this Article 2 are
correct and complete as of the date of this Agreement and will be correct and
complete as of the Effective Time as though made then.
2.1 Status of Certain Holders
If the Holder is not an individual, the Holder is an entity duly created,
formed or organized, validly existing, and in good standing under the laws of
the jurisdiction of its creation, formation, or organization.
2.2 Power and Authority; Enforceability
If the Holder is not an individual, the Holder has the power and authority
to execute and deliver this Agreement. If the Holder is an individual, the
Holder is an adult of sound mind and is not executing and delivering this
Agreement under duress, and otherwise has the requisite competence and authority
to so execute and deliver this Agreement. The Holder has taken the action
necessary to authorize the execution and delivery of this Agreement and the
performance of such Holder's obligations hereunder. This Agreement has been duly
authorized, executed and delivered by, and is enforceable against, the Holder.
2.3 No Violation
The execution, delivery, and performance of this Agreement by the Holder
will not (a) breach any law or order to which the Holder is subject and, if the
Holder is not an individual, any provision of the Holder's Organizational
Documents, (b) breach any contract, order or permit to which the Holder is a
party or by which the Holder is bound or to which any of the Holder's assets are
subject or (c) require the consent of any third party.
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2.4 Shares; Holder Information
The Holder holds of record or owns beneficially the number of ANFI Shares
set forth next to such Holder's name on the signature page hereto. The Holder
represents that it is not party to any contract or subject to any law or court
order that requires the Holder to sell, transfer, or otherwise dispose of any
capital stock of ANFI, or prevents the Holder from executing or delivering this
Agreement or performing its obligations hereunder.
2.5 Accuracy of Representations and Warranties
The Holder understands and acknowledges that Fidelity is entering into the
Merger Agreement in reliance upon the Holder's execution and delivery of this
Agreement and performance of the Holder's obligations hereunder.
ARTICLE 3.
AGREEMENT TO VOTE IN FAVOR OF MERGER
Each Holder, severally and not jointly, covenants with Fidelity for itself
as follows.
3.1 Voting of Shares
(a) The Holder will attend the ANFI Shareholders Meeting, and any
adjournment thereof, in person or by proxy.
(b) The Holder agrees to vote (or cause to be voted) all of its
Holder Shares at the ANFI Shareholders Meeting (i) in favor of the Merger, the
Merger Agreement and any actions required in furtherance of the Merger as set
forth in the Merger Agreement, (ii) against any action or agreement that is
reasonably likely to result in breach in any material respect of any covenant,
representation or warranty, or any other obligation of ANFI or the Holder
pursuant to this Agreement and (iii) against any competing Acquisition Proposal
(as such term is defined in the Merger Agreement).
3.2 Transfer; Additional Shares
(a) Except as expressly permitted by this Agreement, or required by
law or court order, the Holder shall not: (i) offer for sale, sell, transfer,
tender, pledge, encumber, assign or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to or
consent to the offer for sale, transfer, tender, pledge, encumbrance, assignment
or other disposition of, any or all of its Holder Shares or any interest
therein, (ii) grant any proxies or powers of attorney or deposit any Holder
Shares into a voting trust or enter into a voting agreement with respect to any
Holder Shares or (iii) take any action that would make any representation or
warranty of the Holder contained herein materially incorrect or have the effect
of preventing or disabling the Holder from performing any of its obligations
under this Agreement; provided, however, if the Holder is an individual, he or
she may transfer Holder Shares (or any securities convertible into, exercisable
for, or exchangeable for Holder Shares) by gift, will, or intestate succession
to his or her immediate family or to a trust the beneficiaries of which are
exclusively the undersigned and/or a member or members of his or her immediate
family (for purposes of this paragraph, "immediate family" shall mean spouse,
domestic partner, lineal descendant, father, mother, brother or sister of the
transferor) so long as the transferee agrees in writing to be bound by the terms
of this Agreement.
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(b) Without limiting the provisions of the Merger Agreement, this
Agreement will apply to the Holder Shares at the time the Holder becomes the
record owner thereof or becomes entitled under applicable law to vote or direct
the voting of such shares, as though they were ANFI Shares as of the date of
this Agreement. While this Agreement is in effect, the Holder will promptly
notify Fidelity of the number of new ANFI Shares as to which the Holder acquires
record title or to which the Holder becomes entitled under applicable law to
vote or direct the voting thereof.
3.3 Revocation of Other Proxies
To the extent inconsistent with the foregoing provisions of this Article 3
or the other provisions of this Agreement, the Holder hereby revokes any and all
previous proxies with respect to its Holder Shares.
3.4 Grant of Proxy
The Holder hereby appoints ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇ and ▇▇▇ ▇. Le, or either
of them, its proxy to vote all of its Holder Shares at the ANFI Shareholders
Meeting (including any adjournments and postponements thereof) in accordance
with Section 3.1(b) and to execute and deliver any written consents to fulfill
the Holder's obligations pursuant to this Agreement; provided, however, that
such appointment shall remain in effect only if this Agreement has not been
terminated pursuant to Section 5. This proxy is coupled with an interest and is
irrevocable until the earlier of the effectiveness of the Merger and the date
the Merger Agreement is terminated according to its terms.
ARTICLE 4.
PRE-CLOSING COVENANTS
Fidelity and each Holder, severally and not jointly, for itself, further
agree as follows with respect to the period between the execution of this
Agreement and the earlier of the Effective Time and the termination of the
Merger Agreement in accordance with its terms:
4.1 General
The Holder will use its commercially reasonable efforts to take all
actions and to do all things necessary to consummate, make effective, and comply
with the terms of this Agreement.
4.2 Publicity
Neither the Holder nor its Affiliates will issue any press release or
other public announcement related to this Agreement or the Merger without
Fidelity's prior written approval.
4.3 Competing Acquisition Proposals
The Holder (a) shall immediately cease any existing discussions or
negotiations, if any, with any Persons with respect to any Acquisition Proposal,
(b) shall not, directly or indirectly, initiate, solicit or knowingly encourage
(including, without limitation, by way of furnishing any information or
assistance), or take any other action to knowingly facilitate, any Acquisition
Proposal and (c) shall promptly notify Fidelity of any written Acquisition
Proposal received by the Holder.
4.4 Notice of Developments
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The Holder will give prompt written notice to Fidelity of any development
occurring after the date of this Agreement that causes, or reasonably could be
expected to cause, a breach by the Holder of any of the representations and
warranties in Article 2. No disclosure by the Holder under this Section 4.4 will
be deemed to amend this Agreement or to prevent or cure any misrepresentation or
breach of representation, warranty, or covenant.
ARTICLE 5.
TERMINATION
5.1 Termination of Agreement
This Agreement will automatically terminate upon the earlier to occur of
(a) the termination of the Merger Agreement in accordance with the terms of the
Merger Agreement and (b) the Effective Time.
5.2 Effect of Termination
Except for the obligations under this Article 5 and Article 6 below, if
this Agreement is terminated under Section 5.1 above, then, except as provided
in this Section 5.2, all further obligations of the Parties under this Agreement
will terminate.
ARTICLE 6.
MISCELLANEOUS
6.1 Entire Agreement
This Agreement, together with the exhibits and any attachments hereto and
the certificates, documents, instruments and writings that are delivered
pursuant hereto, constitutes the entire agreement and understanding of the
Parties hereto and supersedes all prior agreements and understandings with
respect to the subject matter hereof.
6.2 Successors
All of the terms, agreements, covenants, representations, warranties, and
conditions of this Agreement are binding upon, and inure to the benefit of and
are enforceable by, the Parties and their respective successors.
6.3 Specific Performance
Each Party acknowledges and agrees that the other Parties would be damaged
irreparably if any provision of this Agreement is not performed in accordance
with its specific terms or is otherwise breached. Accordingly, each Party agrees
that the other Parties will be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce specifically
this Agreement and its terms and provisions in any action instituted in any
court of the United States or any state thereof having jurisdiction over the
Parties and the matter, subject to Section 6.6.
6.4 Limitation of Liability
The Holder shall be severally but not jointly responsible for its
obligations hereunder. The
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only remedies available to Fidelity in the event that the Holder is determined
by a court of competent jurisdiction to have breached its obligations hereunder
are (a) specific performance pursuant to Section 6.3 or (b) money damages not to
exceed the fair market value of the Holder's ANFI Shares at the time of
execution of this Agreement.
6.5 Counterparts
This Agreement may be executed in two or more counterparts, each of which
will be deemed an original but all of which together will constitute one and the
same instrument.
6.6 Headings
The article and section headings contained in this Agreement are inserted
for convenience only and will not affect in any way the meaning or
interpretation of this Agreement.
6.7 Governing Law
This Agreement and the performance of the obligations of the Parties
hereunder will be governed by and construed in accordance with the laws of the
State of California, without giving effect to any choice of law principles.
6.8 Amendments and Waivers
No amendment, modification, replacement, termination or cancellation of
any provision of this Agreement will be valid with respect to Fidelity or a
Holder unless the same will be in writing and signed by each of Fidelity and
each Holder to be bound by such amendment, modification, replacement,
termination or cancellation. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, may be deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant hereunder or affect in any
way any rights arising because of any prior or subsequent such occurrence.
6.9 Severability
Any provision of this Agreement that is invalid, unenforceable or illegal
in any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such invalidity, unenforceability, or illegality without affecting the
remaining provisions hereof and without affecting the validity, enforceability
or legality of such provision in any other jurisdiction.
6.10 Notices
All notices, requests and other communications to any Party hereunder
shall be in writing (including facsimile or similar writing) and shall be given,
if to Fidelity, to: Fidelity National Financial, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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with a copy to: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: C. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to a Holder, to: the address set forth on the
applicable signature page hereto.
or such other address or facsimile number as such Party may hereafter specify
for the purpose by notice to the other Parties hereto. Each such notice, request
or other communication shall be effective upon receipt.
6.11 Expenses
Except as otherwise expressly provided in this Agreement, each Party will
bear its own costs and expenses incurred in connection with the preparation,
execution and performance of this Agreement and the Transactions. Holders agree
that the Fidelity has not borne nor will bear any costs and expenses (including
any legal fees and expenses of any Holder Party) in connection with this
Agreement or any of the Transactions.
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IN WITNESS WHEREOF, the Parties have executed this Voting Agreement on the
date first above written.
FIDELITY NATIONAL FINANCIAL, INC.
By:
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Print Name:
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Its:
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HOLDER
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Print Name:
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No. of ANFI Shares Held:
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Notice Information:
Address:
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Attention:
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Facsimile:
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with a copy to:
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Attention:
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HOLDER SIGNATURE PAGE TO VOTING AGREEMENT
HOLDER
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Print Name:
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No. of ANFI Shares Held:
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Notice Information:
Address:
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Attention:
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Facsimile:
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with a copy to:
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Attention:
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Facsimile:
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HOLDER SIGNATURE PAGE TO VOTING AGREEMENT
HOLDER
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Print Name:
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No. of ANFI Shares Held:
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Notice Information:
Address:
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Attention:
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Facsimile:
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with a copy to:
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Attention:
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Facsimile:
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HOLDER SIGNATURE PAGE TO VOTING AGREEMENT
HOLDER
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Print Name:
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No. of ANFI Shares Held:
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Notice Information:
Address:
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Attention:
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Facsimile:
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with a copy to:
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Attention:
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Facsimile:
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HOLDER SIGNATURE PAGE TO VOTING AGREEMENT
