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EXHIBIT 10.36.1
STOCK PURCHASE AGREEMENT
By this Agreement made and entered into as of this 9 the day of June,
1995, Fidelity National Title Insurance Company, an Arizona corporation
("Fidelity"), and WTC Financial, a California corporation ("Shareholder") and
World Tax Service, a California corporation (the "Company"), state, confirm and
agree as follows:
I. Recitals
1. .1. World Tax Service.. Shareholder is the record and beneficial
owner of One Hundred percent(100%) of the issued and outstanding capital stock
of the Company, more specifically described in Section 4.1.5 below (the
"Stock").
1..2. Purchase. Fidelity desires to acquire the Stock from Shareholder.
1..3. Sale. Shareholder desires to sell to Fidelity the Stock on and
subject to the terms and conditions set forth below.
II. Purchase and Sale
2..1. Sale. At the Closing, as defined below, Shareholder shall sell,
transfer, assign, and deliver to Fidelity, in reliance upon the epresentations
and warranties set forth below, the Stock on and subject to the terms, covenants
and conditions set forth below and Fidelity shall purchase the Stock for the
consideration set forth in Section 2.2 below.
2..2. Purchase Price. In full consideration of the sale, transfer,
assignment and delivery of the Stock by Shareholder, and in reliance upon the
representations and warranties set forth below, Fidelity shall, in full payment
therefor, pay One Million Six Hundred Thousand and No/100 Dollars
($1,600,000.00).
2..3. Payment of Purchase Price. Fidelity shall pay the purchase price
by making payment of One Million Six Hundred Thousand and No/100 Dollars
($1,600,000.00) to Imperial Bank in satisfaction of Shareholder's obligation
owed to Imperial Bank evidenced by the Note attached hereto as Exhibit "A" (the
"Imperial Note").
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2..4. Intercompany Obligations. Shareholder will contribute all
intercompany amounts due to Shareholder from the Company as additional
contributed capital as of the Closing.
2..5. Other Agreements. Shareholder shall obtain written
representations, satisfactory to Fidelity, from Imperial Bank that upon payment
of the Purchase Price in the manner set forth in paragraph 2..3 above, that
Shareholder's obligations under the Imperial Note will be satisfied and that all
security or other interests Imperial Bank may have in the Stock and/or the
assets of the Company shall be released.
III. Closing
3..1. Closing. Completion of the transaction contemplated by Article II
above (the "Closing"), shall take place at the offices of Shareholder at 1:30
P.M. local time on June 9, 1995 or at such other time and place as the parties
hereto may mutually agree in advance of such date and time (the "Closing Date").
Not withstanding the execution of this Agreement and the Closing hereof, this
Agreement shall be of no effect and shall not bind either party unless and until
the TRANSFER AND ASSIGNMENT AGREEMENT, known as the {'Book of Business"
agreement, contemplated by American Title Insurance Company, a Florida
corporation and World Title Company, a California corporation is given
appropriate approval by the California Department of Insurance and is fully
executed and enforceable .
3..2. Shareholder Closing Documents. Provided that all of the
conditions to the Closing set forth in Sections 5.1 and 5.2 below have been
satisfied or waived by the party benefiting therefrom, at the Closing,
Shareholder shall execute and deliver or cause to be delivered to Fidelity the
following documents:
3..2.1. Certificates evidencing the Stock with stock powers
attached evidencing the assignment of the Stock to Fidelity.
3..2.2. The Company's original minute books, such minute books
to contain (i) original Articles of Incorporation and all amendments
thereto, or copies thereof if the originals are unavailable, (ii) the
Company's By-Laws presently in effect, (iii) the Company's stock
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transfer records together with all available canceled stock
certificates and (iv) all minutes of meetings or consents in lieu of
such meetings of the Company's Board of Directors and shareholders.
3..2.3. Release, in a form satisfactory to Fidelity, of Imperial
Bank's security interest in the Stock.
3..2.4. Such other documents and agreements as may be either
reasonable or necessary to carry out the purpose and intention of this
Agreement.
3..3. Fidelity's Closing Documents. Provided that all of the
conditions to the Closing set forth in Sections 5.1 and 5.2 below have
been satisfied or waived by the party benefiting therefrom, at the
Closing, Fidelity shall execute and deliver or cause to be delivered to
Shareholder, the following documents:
3..3.1. A cashier's or bank check payable to Imperial Bank or
written verification of completion of a wire transfer to Imperial Bank
in the amount shown in Section 2.2.
3..3.2. Such other documents and agreements as may be either
reasonable or necessary to carry out the purpose and intention of this
Agreement.
IV. Representations and Warranties
4..1. Shareholder's Representations and Warranties. Shareholder and the
Company jointly and severally represent and warrant to Fidelity that the
statements contained in this Article IV are correct and complete as of the date
hereof and as of the Closing Date except as set forth in the disclosure schedule
accompanying this Agreement (the "Disclosure Schedule") . The Disclosure
Schedule will be arranged in paragraphs corresponding to the lettered and
numbered paragraphs contained in this Article IV. It is understood between the
parties to this Agreement that absent fraudulent representations or omissions on
the part of officers or directors of Shareholder or the Company, such officers
and directors shall not be subject to liability for any untrue or incomplete
statement contained in this Article IV.
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4. .1 .1. This Agreement, and the documents to be delivered at
the Closing, have been duly executed and delivered by Shareholder and
are the lawful, valid and legally binding obligation of Shareholder,
enforceable in accordance with their respective terms. Shareholder has
obtained all shareholder and Board of Directors approvals with respect
to the transactions contemplated by this Agreement and any other
transactions contemplated hereby. The execution and delivery of this
Agreement, and the consummation of the transactions contemplated
hereby, will not result in the creation of any lien, charge or
encumbrance or the acceleration of any indebtedness or other obligation
of the Company, and are not prohibited by, do not materially conflict
with, nor violate any provision of (i) any contract or agreement to
which Shareholder or the Company is a party or to which its assets or
property are bound, (ii) any rule, regulation, order, decree or
judgment of any court or governmental agency, or (iii) any law
applicable to the Company.
4. . 1.2. Shareholder owns the Stock free and clear of any
liens, claims, and encumbrances whatsoever and that upon the completion
of the transactions contemplated herein, title to the Stock will be
vested in Fidelity free and clear of any liens, claims or encumbrances
whatsoever.
4. . 1.3. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
California, has full power and authority to own its properties and to
carry on business in the manner in which it is currently conducted and
has complied in all material respects with all federal, state and local
laws with respect to the operation and conduct of its business. Copies
of the Articles of Incorporation and all amendments thereto, bylaws as
amended and currently in force, stock records and corporate minutes and
records of the Company heretofore made available to Fidelity are true,
complete and correct. The Company is qualified to do business and is in
good standing in those states where the failure to so qualify would
have a material adverse effect on the business, financial condition or
the results of operations of the Company.
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4. . 1.4. The Company does not own any stock or have any other
equity or profit sharing interest in, and does not control, directly or
indirectly, any corporation, association, partnership, joint venture or
other entity.
The Company has authorized capital stock consisting of One Million
(1,000,000) shares of common stock, of which 1,000 shares are issued and
outstanding. All of the issued and outstanding shares of the Stock are duly
authorized and validly issued, fully-paid and nonassessable, were offered,
issued and sold in accordance with applicable federal and state securities laws,
and there are no preemptive rights in respect thereof. There are no other
classes of stock of the Company, other than the common stock set forth above.
4. . 1.6. There are no outstanding options, warrants, rights,
calls, commitments, conversion rights, plans or other agreements or
instruments of any character providing for the purchase or other
acquisition by the holders thereof or issuance of any securities of the
Company of any description. There are no outstanding or authorized
stock appreciation, phantom stock, profit participation or similar
rights with respect to the Company. Shareholder is the record and
beneficial owner of the Stock.
4. . 1.7. As of the Closing Date, all necessary filings will
have been made with and all necessary approvals will have been obtained
from federal and state securities and other regulatory authorities with
respect to the transfers of the Stock contemplated herein. There are no
stock transfer or similar fees or taxes payable with respect to the
transactions contemplated by this Agreement.
4..1.8. Section4.1.8. of the Disclosure Schedule contains true
and correct copies of the audited consolidated balance sheets of
shareholder and its consolidated subsidiaries as of October 31, 1993
and 1994, and the related consolidated Statements of Income, Retained
Earnings and Cash Flows for the years then ended. Also attached are
unaudited consolidated balance sheets and statements of income for
Shareholder and its consolidated subsidiaries for the six
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month period ended April 30th, 1995 (collectively, the "Financial
Statements"). The Financial Statements have been prepared in accordance
with Generally Accepted Accounting Principles ("GAAP"), applied on a
consistent basis as of and at the dates indicated above.
4..1.9. All federal, state and local tax and information returns
relating to the Company required to have been filed prior to the date
hereof have been duly and timely filed (including any extensions) and
each such return correctly reflects the income, franchise, and other
tax liability and all other information regarding the Company required
to be reported thereon. All taxes, penalties, interest and related
charges and fees related to income of the Company have been paid, to
the extent such payments are required (including extensions) prior to
and as of the date hereof, and the Company does not have any deficiency
with respect to any tax period or any liability with respect to taxes
or penalties and interest thereon, or related charges and fees, whether
or not assessed, which are not adequately provided for in the tax
accrual reserves in Financial Statements. The Company has not extended
the statute of limitations with respect to review or examination of any
of its federal, state or local tax returns. The Company has filed all
required sales, ad valorem and other similar tax returns and has paid
all of such taxes required to be paid by it prior to the date hereof.
4. .1 .10. The Company does not expect any authority to assess
any additional taxes for any period for which Tax Returns have been
filed. There is no dispute or claim concerning any tax liability of the
Company either claimed or raised by any authority in writing or as to
which the Company's or Shareholder's directors, officers or employees
have personal knowledge based on contact with any agent of such
authority.
4..1.11. Section 4.1.11 of the Disclosure Schedule lists all
federal, state, local, and foreign income Tax Returns filed with
respect to the Company for taxable periods ended on or after October
31, 1990, indicates those Tax Returns which have been audited, and
indicates those Tax Returns that are currently subject to audit.
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4..1.12. Section 4.1.12 of the Disclosure Schedule contains
correct and complete copies of all federal income Tax Returns,
examination reports, and statements of deficiencies assessed against or
agreed to by Shareholder or the Company.
4. .1 .13. The Company has not; (i) filed a consent under Code
Sec. 341(f) concerning collapsible corporations; (ii) made any
payments, is obligated to make any payments, or is a party to any
agreement that under certain circumstances could obligate it to make
any payments that will not be deductible under Code Sec. 280G; (iii)
been a United States real property holding corporation within the
meaning of Code Sec. 897(c)(2) during the specific period specified in
Code Sec. 897(c)(1)(A)(ii); (iv) failed to disclose on its federal
income tax returns all positions taken therein that could give rise to
a substantial understatement of federal income tax within the meaning
of Code Sec. 6662; (v) a party to any tax allocation or sharing
agreement; (vi) a member of an affiliated group filing a consolidated
federal income tax return (other than a group the common parent of
which is Shareholder) or has any liability for the taxes of any person
or entity as a transferee or successor, by contract, or otherwise.
4. .1 .14. Section 4.1.14 of the Disclosure Schedule lists all
of the real property owned by the Company, or in which it has an
ownership interest, with a brief description of each such property .
4..1.15. Section 4.1.15 of the Disclosure Schedule lists and
describes briefly all real property leased or subleased to the Company.
The Company has delivered to Fidelity correct and complete copies of
the leases and subleases listed (as amended to date). With respect to
each lease and sublease listed in section 4.1.15 of the Disclosure
Schedule:
4..1.15.1. To the knowledge of Shareholder and the
Company the lease or sublease is legal, valid, binding,
enforceable, and in full force and effect and will continue to
be legal, valid, binding, enforceable, and in full force and
effect on identical terms following the consummation of the
transactions contemplated hereby;
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4..1.15.2. To the knowledge of Shareholder and the
Company no party to the lease or sublease is in breach or
default, and no event has occurred which, with notice or lapse
or time, would constitute a material breach or default or permit
termination, modification, or acceleration thereunder;
4..1.15.3. No party to the lease or sublease has
repudiated any provision thereof;
4..1.15.4. There are no disputes, oral agreements, or
forbearance programs in effect as to the lease or sublease;
4..1.15.5. With respect to each sublease, the
representations and warranties set forth above are true and
correct with respect to the underlying lease;
4..1.15.6. The Company has not assigned, transferred,
conveyed, mortgaged, deeded in trust, or encumbered any interest
in the leasehold or sublease hold;
4. . 1 .15.7. To the knowledge of Shareholder and the
Company all facilities leased or subleased have received all
approvals or governmental authorities (including licenses and
permits) required in connection with the operation thereof and
have been operated and maintained in accordance with applicable
laws, rules, and regulations;
4..1.15.8. All facilities leased or subleased
thereunder are supplied with utilities and other services
necessary for the operation of said facilities; and
4..1.15.9. To the knowledge of Shareholder and the
Company the owner of the facility leased or subleased has good
and marketable title to the parcel of real property, free and
clear of any Security Interest, easement, covenant, or
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other restriction, except for installments of special easements
not yet delinquent and recorded easements, covenants, and other
restrictions which do not impair the current use, occupancy, or
value, or the marketability of title, of the property subject
thereto.
4. .1 .16. Section 4.1.16 of the Disclosure Schedule sets forth
the following information with respect to each insurance policy
(including policies providing property, casualty, liability, and
workers' compensation coverage and bond and surety arrangements) to
which the Company has been a party, a named insured, or otherwise the
beneficiary of coverage at any time within the past S years: (i) The
name, address, telephone number of the agent; (ii) The name of the
insurer, the name of the policyholder, and the name of each covered
insured; (iii) The policy number and the period of coverage; (iv) The
scope (including an indication of whether the coverage was on a claims
made, occurrence, or other basis) and amount (including a description
of how deductibles and ceilings and calculated and operate) of
coverage; and (v) A description of any retroactive premium adjustments
or other loss-sharing arrangements.
4..1.17. To the knowledge of Shareholder or the Company no
executive, key employee, or group of employees has any plans to
terminate employment with the Company . The Company is not a party to
or bound by any collective bargaining agreement, nor has any of them
experienced any strikes, grievances, claims of unfair labor practices,
or other collective bargaining disputes. The Company has not committed
any unfair labor practice. None of the directors and officers (and
employees with responsibility for employment matters) of the Company
has any knowledge of any organizational effort presently being made or
threatened by or on behalf of any labor union with respect to employees
or any of the Company.
4..1.18. Section 4.1.18 of the Disclosure Schedule lists each
Employee Benefit Plan that the Company maintains or to which any of
them contributes. Each such Employee Benefit Plan (and each related
trust, insurance contract or fund) complies in form and in operation in
all respects with the applicable requirements of ERISA, the Code, and
other applicable laws. All required reports and descriptions (including
Form
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5500 Annual Reports, Summary Annual Reports, PBGC-1's, and Summary Plan
Descriptions) have been filed or distributed appropriately with respect
to each such Employee Benefit Plan. The requirements of Part 6 of
Subtitle B of Title I of ERISA and of Code Sec. 4980B have been met
with respect to each such Employee Benefit Plan which is an Employee
Welfare Benefit Plan. All contributions (including all employer
contributions and employee salary reduction contributions) which are
due have been paid to each such Employee Benefit Plan which is an
Employee Pension Benefit Plan and all contributions for any period
ending on or before the Closing Date which are not yet due have been
paid to each such Employee Pension Benefit Plan or accrued in
accordance with the past custom and practice of the Company. All
premiums or other payments for all periods ending on or before the
Closing Date have been paid with respect to each such Employee Benefit
Plan which is an Employee Welfare Benefit Plan. Each such Employee
Benefit Plan which is an Employee Pension Benefit Plan meets the
requirements of a "qualifiedplan" under Code Sec. 401(a) and has
received, within the last two years, a favorable determination letter
from the Internal Revenue Service. The market value of assets under
each such Employee Benefit Plan which is an Employee Pension Benefit
Plan (other than any Multi employer Plan) equals or exceeds the present
value of all bested and nonvested Liabilities thereunder determined in
accordance with PBGC methods, factors, and assumptions applicable to an
Employee Pension Benefit Plan terminating on the date of determination.
The Company has delivered to Fidelity correct and complete copies of
the plan documents and summary plan descriptions, the most recent
determination letter received from the Internal Revenue Service, the
most recent Form 5500 Annual Report, and all related trust agreements,
insurance contracts, and other funding agreements which implement each
such Employee Benefit Plan.
4..1.19. With respect to each Employee Benefit Plan that the
Company maintains or ever has maintained or to which it contributes,
ever has contributed, or ever has been required to contribute; (i) No
such Employee Benefit Plan which is an Employee Pension Benefit Plan
(other than any Multi employer Plan) has been completely or partially
terminated or been the subject of a reportable event as to which
notices would be required to be filed with the PBGC. No proceeding by
the PBGC to terminate any such Employee Pension Benefit Plan (other
than any Multi
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employer Plan) has been instituted or threatened; (ii) There have been
no prohibited transactions with respect to any such Employee Benefit
Plan. No fiduciary has any liability for breach of fiduciary duty or
any other failure to act or comply in connection with the
administration or investment of the assets of any such Employee Benefit
Plan. No action, suit, proceeding, hearing, or investigation with
respect to the administration or the investment of the assets of any
such Employee Benefit Plan (other than routine claims for benefits) is
pending or threatened and neither Shareholder nor the Company have any
knowledge of any basis for any such action, suit, proceeding, hearing,
or investigation.(iii) The Company has not incurred, and has no reason
to expect that it will incur, any liability to the PBGC (other than
PBGC premium payments) or otherwise under Title IV of ERISA (including
any withdrawal Liability) or under the Code with respect to any such
Employee Benefit Plan which is an Employee Pension Benefit Plan.
4..1.20. The Company does not contribute to, ever has
contributed to, or ever has been required to contribute to any Multi
employer Plan or has any liability (including withdrawal liability)
under any Multi employer Plan.
4..1.21. The Company does not maintain or ever has maintained or
contributes, ever has contributed, or ever has been required to
contribute to any Employee Welfare Benefit Plan providing medical,
health, or life insurance or other welfare-type benefits for current or
future retired or terminated employees, their spouses, or their
dependents (other than in accordance with Code Sec. 4980(B).
4..1.22. The Company owns or has the right to use pursuant to
license, sublicense, agreement, or permission all intellectual property
necessary for the operation of their businesses as presently conducted.
Each item of intellectual property owned or used by any of the Company
immediately prior to the Closing hereunder will be owned or available
for use by FNFI on identical terms and conditions immediately
subsequent to the Closing hereunder. The Company has taken all
necessary action to maintain and protect each item of intellectual
property that it owns or uses.
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4. . 1.23. The Company has not interfered with, infringed upon
or misappropriated any intellectual property rights of third parties,
and has never received any charge, complaint, claim, demand, or notice
alleging any such interference, infringement, misappropriation, or
violation. No third party has interfered with, infringed upon or
misappropriated any intellectual property rights of the Company.
4..1.24. The Company, and its respective predecessors and
affiliates has complied with all environmental, health, and safety
laws, and no action, suit, proceeding, hearing, investigation, charge,
complaint, claim, demand, or notice has been filed or commenced against
it alleging any failure so to comply. Without limiting the generality
of the preceding sentence, the Company and its respective predecessors
and affiliates has obtained and been in compliance with all of the
terms and conditions of all permits, licenses, and other authorizations
which are required under, and has complied with all other limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables which are contained in, all
environmental, health, and safety laws.
4..1.25. The Company has no liability for nor has it handled or
disposed of any substance, arranged for the disposal of any substance,
exposed any employee or other individual to any substance or condition,
or owned or operated any property or facility in any manner that could
form the basis for any present or future action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand against the
Company giving rise to any liability for damage to any site, location,
or body of water (surface or subsurface), for any illness of or
personal injury to any employee or other individual, or for any reason
under any environmental, health, and safety law.
4..1.26. To the knowledge of Shareholder and the Company all
properties used in the business of the Company, and its respective
predecessors and affiliates have been free of asbestos, PCB's,
methylene chloride, trichloroethylene, 1,2-trans-dichloroethylene,
dioxins, dibenzofurans, and extremely hazardous substances.
4..1.27. None of the Company's shareholders, or their
affiliates has been involved in any business arrangement or
relationship with the
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Company within the past 12 months, and none of its shareholders or
their affiliates owns any asset, tangible or intangible, which is used
in the business of the Company.
4..1.28. All accounts receivable reflected on the October 31,
1994 and April 30th, 1995 Financial Statements were, and all such
receivables on the date hereof are, valid obligations of the respective
makers thereof and were not, and are not, to the knowledge of
Shareholder, subject to any valid offset or counterclaim, are
collectible in full net of any reserves set forth in the Financial
Statements, and are not subject to any assignment, claim, lien or
security interest.
4. . 1.29. There are no actions, suits, claims, complaints,
charges, hearings, investigations, arbitration (or other dispute
resolution proceedings) or other proceedings pending or, to the
knowledge of Shareholder, threatened against or affecting the Company
in any court or panel or before any arbitrator or governmental agency,
domestic or foreign. The Company has not been charged with, and to the
best of Shareholder's knowledge, is not under investigation with
respect to, any charge concerning any violation of any provision of any
federal, state or other applicable law or regulation with respect to
the business of the Company.
4..1.30. Other than as disclosed in the Disclosure Schedule
under another section of this Agreement the Company is not a party to,
bound by or the beneficiary of any instrument, commitment, agreement,
arrangement or understanding meeting any of the descriptions set forth
below (the "Material Contracts"):
4..1.30.1. Real estate leases, personal property
leases, insurance policies, licenses of intellectual property,
technical information or software, employment contracts or
Benefit Plans, as one or more of these terms may be described
below or are otherwise understood.
4..1.30.2. Any contract or agreement requiring a
capital expenditure or the purchase of goods or services in
excess of $ 15,000 over the remaining term thereof.
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4. . 1.30.3. Any instrument evidencing indebtedness
(other than routine purchase orders or trade payable), any
liability for borrowed money, any obligation for the deferred
payment for the purchase price for property in excess of $
15,000, or any instrument guaranteeing any indebtedness,
obligation or liability of another.
4..1.30.4. Any deed, xxxx of sale, lease, easement,
agreement or other instrument affecting any right, title or
interest in any real or personal property, other than minor
pieces of office equipment and other immaterial items.
4..1.30.5. Any contract or agreement with any
governmental agency or authority.
4. . 1.30.6. Any license or royalty agreement.
4. . 1.30.7. Any power of attorney, proxy or similar
instrument or agreement.
4..1.30.8. Any warranty or service contract obligating
the Company to provide goods or services to another for any
period of time which is not terminable by the Company upon not
more than 30 days without penalty or claim for damages.
4..1.30.9. Any contract containing covenants not to
compete in any line or business or with any person in any
geography area.
4..1.31. Accurate, correct and complete copies of each Material
Contract have been made available to Fidelity. Each Material Contract
is in full force and effect and is valid, binding and enforceable in
accordance with its terms. The Company, and to Shareholder's knowledge,
each other party has complied in all material respects with all
material commitments and obligations on their part to be performed or
observed under each Material Contract. No event has occurred which is
or,
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after the giving of notice or the passage of time, or both, would
constitute a material breach or default under a Material Contract on
the part of the Company, or to the knowledge of Shareholder, any other
party. The Company has not received any written notice, or to
Shareholder's knowledge, been given other notice of an intention to
cancel or terminate a Material Contract or to exercise or not exercise
options or rights under a Material Contract. The Company has not
received any written, or to Shareholder's knowledge, other notice of a
default, offset or counterclaim under any Material Contract, or any
other written or, to their knowledge, other communication calling upon
the Company to comply with any provision of any Material Contract or
asserting the failure of the Company to comply with any Material
Contract. The consummation of the transactions contemplated hereby,
without notice to or consent or approval of any party, will not
constitute a default under or a breach of any provision of a Material
Contract, and the Company will have and may enjoy and enforce all
rights and benefits under each Material Contract after the Closing.
There is no security interest, lien, encumbrance or claim of any kind
on the Company under any Material Contract.
4..1.32. Section 4.1.32 of the Disclosure Schedule contains a
true and complete list of the names and compensation arrangements of
all employees, officers and directors of the Company and, with respect
to those whose current annual rate of compensation from the Company
equals or exceeds $ 35,000, a list and summary description of all
written and unwritten agreements, arrangements or understanding, with
officers, directors and employees of the Company, regarding services to
be rendered, terms and conditions of employment and compensation (the
"Employment Contracts ").
4..1.33. The Company does not have any "welfare benefit plans"
(as defined in Section 3(1) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")), "employee pension benefit plans"
(as defined in Section 3(2) of ERISA), bonus, profit sharing, deferred
compensation, severance, termination, incentive or other compensation
plans or arrangements, or other employee fringe benefit plans, whether
funded or unfunded, qualified or unqualified, maintained or contributed
to by the Company for the benefit of any
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current or former employees of the Company or any other individual who
currently provides, or formerly provided, services to the Company as an
independent contractor (all of the foregoing are collectively referred
to as "Benefit Plans"). The transactions contemplated by this Agreement
will not result in the right of any employee to terminate his or her
employment relationship with the Company or create any severance or
termination obligation of the Company.
4..1.34. Except to the extent reflected on the Financial
Statement as of April 30, 1995, the Company does not have any material
indebtedness, liability or obligation of any nature, whether absolute
or contingent, related to or arising from the operation of the business
or the ownership, possession or use of any assets.
4..1.35. None of the information furnished by Shareholder or the
Company to Fidelity shall contain any untrue statement of a material
fact or omit to state any fact, the omission of which would be
misleading.
4..1.36. No person has asserted to the Company in writing, or to
Shareholder's knowledge, otherwise, any claim for indemnification under
the Company's Articles of Incorporation or bylaws, or under applicable
state law, or any Agreement, and to the best of Shareholder's
knowledge, no basis for such claim exists.
4..1.37. Since April 30th, 1995, there have not been (i) any
changes in the assets, liabilities, financial condition, or operations
of the Company from that reflected in the Financial Statements, except
changes in the ordinary course of business that have not been, either
individually or in the aggregate, materially adverse; (ii) any loan or
advance except normal travel advances or reasonable expense advances to
any director, officer or employee of the Company; (iii) any forgiveness
or cancellation of any debts or obligations due the Company; (iv) the
waiver of any rights or the discharge or satisfaction of any lien,
charge, or encumbrance or payment of any liability or obligation, other
than the payment of current liabilities in the ordinary course of
business; (v) any cancellation, acceleration, termination, or
modification of any agreement, contract, lease, or license (or series
of
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related agreements, contracts, leases, and licenses) involving more
than $15,000 to which the Company is a party to or bound by; (vi) an
imposition of any liens or encumbrances on or against the assets of the
Company; (vii) any postponement of the payment of accounts payable or
other liabilities outside the ordinary course of business; (viii) any
licenses or sublicenses granted with respect to any intellectual
property of the Company or (ix) any other transaction other than in the
ordinary course of business consistent with past practices.
4..1.38. The Company has materially complied with all statutes,
codes, ordinances, licensing requirements, laws, rules, regulations,
decrees, awards or orders applicable to its business or operations,
including those relating to employment, environmental matters, employee
benefits, the production, marketing and sale of its products and
services, trade regulations, antitrust, warranties and control of
foreign exchange.
4..1.39. Neither the Company, nor to the knowledge of
Shareholder, have any of the Company's officers, directors, agents,
employees, associates or any other person acting on behalf of the
Company (i) made any unlawful domestic or foreign political
contributions, (ii) made any payment or provided any services which
were not legal to make or provide or which the Company or any such
officer, employee or other person should have known were not legal for
the payee or the recipient of such services to receive, (iii) received
any payments, services or gratuities which were not legal to receive or
which the Company or such person should have known were not legal for
the payor or the provider to make or provide, (iv) had any transactions
or payments which were not recorded in the Company's accounting books
and records or disclosed in its financial statements, (v) had any
off-book bank or cash account or "slush fund", (vi) made any payments
to governmental officials in their individual capacities for the
purpose of affecting their action or the action of the government they
represent to obtain special concessions, or (vii) made illegal payments
to obtain or retain business.
4. . 1.40. Neither Shareholder nor the Company has retained any
broker, finder, agent or other intermediary or incurred any liability
or
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obligation for any brokerage fees, commissions or finders fees with
respect to this Agreement or the transactions contemplated by this
Agreement.
4..2. Fidelity's Representations and Warranties. Fidelity hereby
represents and warrants to Shareholder that as of the date hereof and as of the
Closing Date:
4. .2.1. Fidelity is a corporation duly organized, validly
existing and in good standing under the laws of the State of Arizona,
is qualified to do business and in good standing in those states where
the failure to so qualify would have a material adverse affect on the
business, financial condition or the results of its operations, has
full corporate power and authority to own its properties and to carry
on its business in the manner in which it is currently conducted and
has complied in all material respects with all material federal, state,
and local laws with respect to the operation and conduct of its
business.
4..2.2. Fidelity has full power and authority and has taken all
necessary action to execute and deliver this Agreement and to carry out
the transactions contemplated hereby. All corporate and other action
required to be taken to authorize the execution, delivery and
performance of this Agreement and the transactions contemplated hereby
has been duly and properly taken. No consents or approvals of any third
parties are necessary, or will be necessary, in connection with the
execution and delivery of this Agreement or the consummation of the
transactions contemplated herein by Fidelity.
4..2.3. This Agreement, and the documents to be delivered at the
Closing, have been duly executed and delivered and are the lawful,
valid and legally binding obligation of Fidelity, enforceable against
Fidelity in accordance with their respective terms.
4..2.4. Fidelity shall acquire the Stock for its own account,
for investment purposes only and not with a view to the distribution or
resale thereof; provided, however, that the disposition of the Stock
shall at all times remain within the sole control of Fidelity.
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4..2.5. Fidelity has not retained any broker, finder, agent or
other intermediary or incurred any liability or obligation for any
brokerage fees, commissions or finders fees with respect to this
Agreement or to the transactions contemplated by this Agreement.
V. Conditions to Closing
5. .1. Conditions for the Benefit of Fidelity. The obligation of
Fidelity to consummate the transactions contemplated by this Agreement is
subject to the prior or concurrent satisfaction of each of the following
conditions:
5..1.1. Warranties and Covenants. The representations and
warranties of Shareholder contained herein shall be accurate in all
material respects as if made on and as of the Closing Date, as well as
the date of this Agreement. Shareholder shall have performed all of the
obligations and compiled with each and all of the covenants required to
be performed or complied with on or prior to the Closing.
5..1.2. No Pending Actions. No action or proceeding before any
court or governmental body shall be pending or threatened wherein an
unfavorable judgment, decree or order would prevent the carrying out of
this Agreement or any of the transactions contemplated hereby, declare
unlawful the transactions contemplated by this Agreement, cause such
transactions to be rescinded, or which might affect the right of
Fidelity to own or control the Stock.
5. . 1.3. Consents. All consents by third parties that are
required for the transfer of the Stock or that are required for the
consummation of the transactions contemplated hereby, or that are
required in order to prevent a breach of or a default under or a
termination of any agreement to which the Company or Shareholder is a
party or to which any portion of the property of the Company is subject
will be obtained or provided for.
5. . 1.4. Release. Imperial Bank shall have released any and all
interest it has in the Stock or assets of the Company.
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5..1.5. Intercompany Debt. All amounts reflected in the
Financial Statements as amounts owed by the Company to Shareholder
shall either be forgiven or contributed back to the Company by
Shareholder as additional paid in capital.
5..2. Conditions for the Benefit of Shareholder. The obligation of
Shareholder to consummate the transactions contemplated by this Agreement is
subject to the prior or concurrent satisfaction of each of the following
conditions:
5..2.1. Warranties and Covenants. The representations and
warranties of Fidelity contained herein shall be accurate in all
material respects as if made on and as of the Closing Date, as well as
the date of this Agreement. Fidelity shall have performed each and all
of the obligations and complied with each and all of the covenants
specified in this Agreement to be performed or complied with on or
prior to the Closing.
5. .2.2. No Pending Actions. No action or proceeding before any
court or governmental body shall be pending or threatened wherein an
unfavorable judgment, decree or order would prevent the carrying out of
this Agreement or any of the transactions contemplated hereby, declare
unlawful the transactions contemplated by this Agreement, or cause such
transactions to be rescinded.
5..2.3. Consents. All consents by third parties that are
required for the consummation of the transactions contemplated hereby,
or that are required in order to prevent a breach of or a default under
or a termination of any agreement to which Fidelity is a party or to
which any portion of its assets are subject, will be obtained or
provided for.
VI. Survival of Representation and Warranties; Indemnification
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6..1. Survival of Representations and Warranties. The representations
and warranties of the Company, Shareholder and Fidelity shall survive the
Closing and shall continue until the expiration of the applicable statutory
period of limitations on the commencement of a cause of action for the breach of
contract, except for the provisions of Sections 4.1.9 thru and including 4.1.13.
relative to taxes, which shall survive until the expiration of the applicable
statute of limitations, including any waivers or extensions thereof.
6..2. Indemnification of Fidelity. Subject to the provisions of Section
6.5.2, the Company and Shareholder jointly and severally agree to indemnify,
defend and hold harmless Fidelity from and against any and all losses, damages,
claims, suits, proceedings, liabilities and expenses (including without
limitation, reasonable attorney's fees) ("Losses" or "Claims" as the context
requires) which may be imposed on, sustained, incurred, suffered by or asserted
against Fidelity, directly or indirectly, as a result of, relating to or arising
out of (a) the breach of any representation or warranty or covenant or agreement
of the Company or Shareholder contained in this Agreement or (b) any Claims
arising from the actions of the Company or Shareholder prior to the Closing
Date.
6..3. Indemnification of the Shareholder. Fidelity agrees to indemnify,
defend and hold harmless Shareholder from and against any and all losses,
damages, claims, suits, proceedings, liabilities and expenses (including without
limitation, reasonable attorney's fees) ("Losses" or "Claims" as the context
requires) which may be imposed on, sustained, incurred, suffered by or asserted
against Shareholder, directly or indirectly, as a result of, relating to or
arising out of (a) the breach of any representation or warranty or covenant or
agreement of Fidelity contained in this Agreement or (b) any Claims arising from
the actions of Fidelity and its Affiliates, including the Company, after the
Closing Date relating to the conduct of the Business, and which is not subject
to the indemnification of Fidelity under section 6.2.
6..4. Procedures for Indemnification.
6..4.1. If a party to this Agreement entitled to assert a Claim
under this Agreement shall receive notice of the assertion by a person
who is not a party to this Agreement of any claim or the commencement
by any such person of any action or proceeding ( a "Third Party Claim")
with respect to which Fidelity or the Company and Share-
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holder are obligated to provide indemnification, the indemnified party
(the Indemnitee") shall give the indemnifying party (the "Indemnitor")
prompt notice thereof. Such notice shall describe the Third Party Claim
in reasonable detail.
6..4.2. The Indemnitor may elect to compromise or defend, at
such Indemnitor's own expense and by Indemnitor's own counsel, which
shall be reasonably acceptable to the indemnified party, any Third
Party Claim. If an Indemnitor elects to defend a Third Party Claim, it
shall, within 30 days of receipt of the notice referred to in Section
6.4.1 above (or sooner, if the nature of such Third Party Claim so
requires), notify the related Indemnitee of its intent to do so, and
such Indemnitee shall reasonably cooperate in the compromise of, or
defense against, such Third Party Claim. The Indemnitor shall pay such
Indemnitee actual out-of-pocket expenses incurred in connection with
such cooperation. If an Indemnitor elects not to defend against a Third
Party Claim, or fails to notify an Indemnitee of its election as
provided in Section 6.4.1 above, Indemnitee may without advance written
notice to the Indemnitor, pay, compromise or defend such Third Party
Claim reasonably and in good faith on behalf of and for the account of
the Indemnitor. No Indemnitor shall consent to entry of any judgment or
enter into any settlement against or with respect to any Indemnitee
without the written consent of such Indemnitee, unless such judgment or
settlement (i) provides solely for money damages or other payments for
which such Indemnitee is entitled to indemnification hereunder and (ii)
includes as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnitee of a release from all liability in respect
to such Third Party Claim.
6..4.3. With respect to any Claim hereunder which does not
result from a Third Party Claim, the Indemnitor shall have a period of
thirty (30) days from receipt of notice from the Indemnitee within
which to respond thereto. If such Indemnitor does not respond within
such 30-day period or rejects such Claim in whole or in part, such
Indemnitee shall be free to pursue such remedies as may be available to
such Indemnitee under applicable law.
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6..4.4. If the amount of any Claim or Loss shall, at any time
subsequent to payment pursuant to this Agreement, be reduced by
recovery, settlement or otherwise, the amount of such reduction, less
any expenses incurred in connection therewith, shall promptly be repaid
by the Indemnitee to the related Indemnitor.
6..5. Remedies.
6..5.1. No action for indemnification under this Article VI may
be brought with respect to a breach of any representations and
warranties after the date indicated in Section 6.1 above unless, prior
to the date such representations and warranties expire, the party
seeking indemnification has notified in reasonable detail the party
from whom indemnification is sought of a claim for indemnity hereunder.
6..5.2. Fidelity, the Company or Shareholder, as the case may
be, shall have no liability to defend, indemnify or hold harmless the
other party to this Agreement unless and until the aggregate amount
payable by the former party as a result of all such breaches exceeds
$25,000, whereupon the former party shall be liable only for the amount
in excess of such $25,000 provided, however, that such limitation shall
not apply to any claim for taxes pursuant to the provisions of sections
4.1.9 thru and including 4.1.13.
VII. General Provisions
7..1. Amendment and Waiver. No amendment or waiver of any of the
provisions of this Agreement shall be effective unless the same shall be in
writing and signed by the parties hereto. Furthermore, any such written waiver
or amendment shall be effective only for the specific instance and for the
specific purpose for which it was given.
7..2. Costs and Expenses. Each party to this Agreement shall bear their
own costs and expenses incurred in connection with the preparation of this
Agreement and the consummation of the transactions contemplated hereunder. Not
withstanding the foregoing, the Company shall not incur nor be responsible for
any costs or
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expenses, including attorneys fees, in connection with this Agreement or the
transactions contemplated herein.
7..3. Notices. All notices, requests, demand and other communications
hereunder, whether or not required, shall be in writing and shall be sent by
registered or certified mail, or any recognized national delivery service,
postage prepaid, return receipt required, as follows:
If to Fidelity: Xxxxxx X. Xxxxxx
Executive Vice President and
General Counsel
Fidelity National Title Insurance Company
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
If to Shareholder:WTC Financial
00000 Xxx Xxxxxx Xxxxxx, xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
With a copy to: Xxxxxx X. Xxxx, Esq.
PALMIERI, TYLER, XXXXXX,
XXXXXXX & XXXXXXX
0000 Xxxx Xxxxxx, Xxxxxx000
Xxxxxx, Xxxxxxxxxx 00000
If to the Company:World Tax Service
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Legal Department
or to such other addresses as either party may from time to time provide to the
other by notice hereunder. All such notices shall be effective when deposited
with the designated carrier addressed as set forth above.
7..4. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, all of which however,
shall constitute one and the same agreement.
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7. .5. Affiliates. For purposes of this Agreement "Affiliates" of a
person shall mean a person who directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such person; the term "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise.
7..6. Parties in Interest. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns. However, except as set forth in the
preceding sentence, this agreement is intended solely for the benefit of the
parties hereto and no third party shall be a beneficiary or have the right to
enforce this Agreement or any of the terms and provisions hereof.
7..7. Entire Transaction. This Agreement and the documents and
transactions referred to herein and the Addendum Agreement of even date
herewith, constitute the full and complete understanding of the parties hereto
with respect to these transactions and supersede all other agreements and
understandings of the parties hereto. There have been no representations or
statements made concerning this transaction except asset forth in this Agreement
and neither party is relying upon any representation or statement except those
set forth in this Agreement in determining to enter into this Agreement.
7. .8. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, including the
choice of law provisions thereof. The parties hereto consent to the jurisdiction
of the Courts of California and to the venue of the County of Orange with
respect to all matters relating to this Agreement. Should any provision of this
Agreement be found to be invalid, unenforceable, or void for any reason, the
remaining provisions of this Agreement shall remain in full force and effect as
though the invalid, unenforceable or void provision were not a part of hereof.
7..9. Headings. The section and other headings contained in this
Agreement are for the convenience of the parties, are for reference purposes
only, and shall not affect in any way the meaning or interpretation of this
Agreement.
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7..10. Expenses. Except as otherwise expressly provided herein to the
contrary, each party to this Agreement shall pay their respective costs and
expenses in connection with the transactions referred to herein.
7. .1 1. Joint Cooperation. The Parties shall cooperate fully with each
other and their respective counsel and accountants and to execute and deliver
any further documents that may be reasonably necessary in connection with any
steps required to be taken as part of their respective obligations under this
Agreement.
7..12. Joint Preparation. All parties to this Agreement have been
represented by competent counsel. This Agreement has been jointly prepared by
the Parties, and any uncertainties or ambiguity existing in it shall not be
interpreted against any of the parties under the presumptions of California
Civil Code Section 1654, but rather shall be interpreted according to the rules
generally governing the interpretation of contracts.
7. .13. Injunctive Relief. The parties hereto agree that money damages
would be an insufficient remedy for any breach of this Agreement by Shareholder
and that Fidelity shall be entitled to an injunction and specific performance as
a remedy for any such breach, without proof of actual damages and without the
necessity of posting a bond or other security, such proof and security being
waived by Shareholder. Such remedy shall not be deemed to be the exclusive
remedy for any such breach but shall be in addition to all other remedies
available to Fidelity at law or in equity.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by their duly authorized representatives, as of the
date first above written.
FIDELITY NATIONAL TITLE
INSURANCE COMPANY, an Arizona
corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
Its:
General Counsel
WTC FINANCIAL, a California
corporation
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
Its:
President
WORLD TAX SERVICE, a
California
corporation
By:
Its:
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STOCK PURCHASE AGREEMENT
By this Agreement made and entered into as of this 9th day of June,
1995, Fidelity National Financial, Inc., a Delaware corporation ("FNFI"); WTC
Financial, a California corporation ("Shareholder"), and Spatial Data, Inc., a
California corporation (the "Company") state, confirm and agree as follows:
I. Recitals
1..1. Spatial Data Inc. Shareholder is the record and beneficial owner
of One Hundred and Fifty Six Thousand (156,000) shares of capital stock of
Spatial Data Inc., a California corporation ("the Company"), which represents
approximately sixty two percent (62.4%) of the issued and outstanding stock of
the Company (the "Stock").
1..2. Notes Receivable. Shareholder is the holder and beneficial owner
of certain notes receivable and other intercompany receivables (the
"Intercompany Obligations") under which the Company is indebted to Shareholder
in the aggregate amount of Four Hundred and Eight Thousand dollars($408,000).
1..3. Purchase. FNFI desires to acquire the Stock and Intercompany
Obligations from Shareholder.
1..4. Sale. Shareholder desires to sell to FNFI the Stock and the
Intercompany Obligations on and subject to the terms and conditions set forth
below.
II. Purchase and Sale
2..1. Sale. At the Closing, as defined below, Shareholder shall sell,
transfer, assign, and deliver to FNFI, in reliance upon the representations and
warranties set forth below, the Stock and the Intercompany Obligations on and
subject to the terms, covenants and conditions set forth below and FNFI shall
purchase the Stock and Intercompany Obligations for the consideration set forth
in Section 2.2 below.
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2..2. Purchase Price. In full consideration of the sale, transfer,
assignment and delivery of the Stock and Intercompany Obligations by
Shareholder, and in reliance upon the representations and warranties set forth
below, FNFI shall, in full payment therefor, pay Two Hundred Thousand and No/100
Dollars ($200,000.00). Fifty Thousand and No/100 Dollars ($50,000.00) of the
Purchase Price shall be consideration for the Stock and One Hundred and Fifty
Thousand and No Dollars ($150,000.00) shall be consideration for the
Intercompany Obligations.
2..3. Payment of Purchase Price. FNFI shall pay the purchase price by
making payment of Two Hundred Thousand and No/100 Dollars ($200,000.00) to
Imperial Bank in partial satisfaction of Shareholder's obligation owed to
Imperial Bank evidenced by the Note attached hereto as Exhibit "A" (the
"Imperial Note").
2..4. Intercompany Obligations. The Intercompany Obligations and all
appropriate and necessary assignment documents are attached hereto as Exhibit
"B".
2..5. Other Agreements. Shareholder shall obtain written
representations, satisfactory to FNFI, from Imperial Bank that upon payment of
the Purchase Price in the manner set forth in paragraph 2..3 above, that
Shareholder's obligations under the Imperial Note will be satisfied and that all
security or other interests Imperial Bank may have in the Stock, the
Intercompany Obligations and/or the assets of the Company shall be released.
III. Closing
3..1. Closing. Completion of the transaction contemplated by Article II
above (the "Closing"), shall take place at the offices of Shareholder at 1:30
P.M. local time on June 9, 1995 or at such other time and place as the parties
hereto may mutually agree in advance of such date and time (the "Closing Date").
Not withstanding the execution of this Agreement and the Closing hereof, this
Agreement shall be of no effect and shall not bind either party unless and
until; (i) the TRANSFER AND ASSIGNMENT AGREEMENT, known as the "Book of
Business" agreement, contemplated by American Title Insurance Company, a Florida
corporation and World Title Company, a California corporation is given
appropriate approval by the California Department of Insurance, is fully
executed
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and enforcable or (ii) Shareholder obtains all necessary releases, waivers, or
approvals regarding that certain Shareholder Agreement between the shareholders
of the Company dated August 13th, 1993.
3..2. Shareholder Closing Documents. Provided that all of the
conditions to the Closing set forth in Sections 5.1 and 5.2 below have been
satisfied or waived by the party benefiting therefrom, at the Closing,
Shareholder shall execute and deliver or cause to be delivered to FNFI the
following documents:
3..2.1. Certificates evidencing the Stock with stock powers
attached evidencing the assignment of the Stock to FNFI.
3..2.2. Certified copies of the Company's original minute books,
such minute books to contain (i) original Articles of Incorpora tion
and all amendments thereto, or copies thereof if the originals are
unavailable, (ii) the Company's By-Laws presently in effect, (iii) the
Company's stock transfer records together with all available canceled
stock certificates and (iv) all minutes of meetings or consents in lieu
of such meetings of the Company's Board of Directors and shareholders.
3..2.3. Release, in a form satisfactory to FNFI, of Imperial
Bank's security interest in the Stock and or assets of the Company..
3..2.4. Such other documents and agreements as may be either
reasonable or necessary to carry out the purpose and intention of this
Agreement.
3..3. FNFI's Closing Documents. Provided that all of the conditions to
the Closing set forth in Section 5.1 and 5.2 below have been satisfied or waived
by the party benefiting therefrom, at the Closing, FNFI shall execute and
deliver or cause to be delivered to Shareholder, the following documents:
3..3.1. A cashier's or bank check payable to Imperial Bank or
written verification of completion of a wire transfer to Imperial Bank
in the amount shown in Section 2.2.
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3..3.2. Such other documents and agreements as may be either
reasonable or necessary to carry out the purpose and intention of this
Agreement.
IV. Representations and Warranties
4..1. Shareholder's Representations and Warranties. Shareholder and the
Company jointly and severally represent and warrant to FNFI that the statements
contained in this Article IV are correct and complete as of the date hereof and
as of the Closing Date except as set forth in the disclosure schedule
accompanying this Agreement (the "Disclosure Schedule") . The Disclosure
Schedule will be arranged in paragraphs corresponding to the lettered and
numbered paragraphs contained in this Article IV. It is understood between the
parties to this Agreement that absent fraudulent representations or omissions on
the part of officers or directors of Shareholder or the Company, such officers
and directors shall not be subject to liability for any untrue or incomplete
statement contained in this Article IV.
4..1.1. This Agreement, and the documents to be delivered at the
Closing, have been duly executed and delivered by Shareholder and are
the lawful, valid and legally binding obligation of Shareholder, en
forceable in accordance with their respective terms. Shareholder has
obtained all shareholder and Board of Directors approvals with respect
to the transactions contemplated by this Agreement and any other
transactions contemplated hereby. The execution and delivery of this
Agreement, and the consummation of the transactions contemplated
hereby, will not result in the creation of any lien, charge or encum
brance or the acceleration of any indebtedness or other obligation of
the Company, and are not prohibited by, do not materially conflict
with, nor violate any provision of (i) any contract or agreement to
which Shareholder or the Company is a party or to which its assets or
property are bound, (ii) any rule, regulation, order, decree or
judgment of any court or governmental agency, or (iii) any law
applicable to the Company.
4..1.2. Shareholder owns the Stock free and clear of any liens,
claims, and encumbrances whatsoever and that upon the completion of
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the transactions contemplated herein, title to the Stock will be vested
in FNFI free and clear of any liens, claims or encumbrances whatsoever.
4..1.3. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
California, has full power and authority to own its properties and to
carry on business in the manner in which it is currently conducted and
has complied in all material respects with all federal, state and local
laws with respect to the operation and conduct of its business. Copies
of the Articles of Incorporation and all amendments thereto, bylaws as
amended and currently in force, stock records and corporate minutes and
records of the Company heretofore made available to FNFI are true,
complete and correct. The Company is qualified to do business and is in
good standing in those states where the failure to so qualify would
have a material adverse effect on the business, financial condition or
the results of operations of the Company.
4..1.4. The Company does not own any stock or have any other
equity or profit sharing interest in, and does not control, directly or
indirectly, any corporation, association, partnership, joint venture or
other entity.
4..1.5. The Company has authorized capital stock consisting of
One Million (1,000,000) shares of common stock, of which 250,000 shares
are issued and outstanding. All of the issued and outstanding shares of
the Stock are duly authorized and validly issued, fully-paid and
nonassessable, were offered, issued and sold in accordance with
applicable federal and state securities laws, and there are no
preemptive rights in respect thereof. There are no other classes of
stock of the Company, other than the common stock set forth above.
4..1.6. There are no outstanding options, warrants, rights,
calls, commitments, conversion rights, plans or other agreements or
instruments of any character providing for the purchase or other acqui
sition by the holders thereof or issuance of any securities of the
Company of any description. There are no outstanding or authorized
stock appreciation, phantom stock, profit participation or similar
rights
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with respect to the Company. Shareholder is the record and beneficial
owner of the Stock.
4..1.7. As of the Closing Date, all necessary filings will have
been made with and all necessary approvals will have been obtained from
federal and state securities and other regulatory authorities with
respect to the transfers of the Stock contemplated herein. There are no
stock transfer or similar fees or taxes payable with respect to the
transactions contemplated by this Agreement.
4..1.8. Section 4.1.8. of the Disclosure Schedule contains true
and correct copies of the audited consolidated balance sheets of
Shareholder and its consolidated subsidiaries as of October 31, 1993
and 1994, and the related consolidated Statements of Income, Retained
Earnings and Cash Flows for the years then ended. Also attached are
unaudited consolidated balance sheets and statements of income for
Shareholder and its consolidated subsidiaries for the six month period
ended April 30th, 1995 (collectively, the "Financial Statements"). The
Financial Statements have been prepared in accordance with Generally
Accepted Accounting Principles ("GAAP"), applied on a consistent basis
as of and at the dates indicated above.
4..1.9. All federal, state and local tax and information returns
relating to the Company required to have been filed prior to the date
hereof have been duly and timely filed (including any extensions) and
each such return correctly reflects the income, franchise, and other
tax liability and all other information regarding the Company required
to be reported thereon. All taxes, penalties, interest and related
charges and fees related to income of the Company have been paid, to
the extent such payments are required (including extensions) prior to
and as of the date hereof, and the Company does not have any deficiency
with respect to any tax period or any liability with respect to taxes
or penalties and interest thereon, or related charges and fees, whether
or not assessed, which are not adequately provided for in the tax
accrual reserves in Financial Statements. The Company has not extended
the statute of limitations with respect to review or examination of any
of its federal, state or local tax returns. The Company has filed all
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required sales, ad valorem and other similar tax returns and has paid
all of such taxes required to be paid by it prior to the date hereof.
4..1.10. The Company does not expect any authority to assess any
additional taxes for any period for which Tax Returns have been filed.
There is no dispute or claim concerning any tax liability of the
Company either claimed or raised by any authority in writing or as to
which the Company's or Shareholder's directors, officers or employees
have personal knowledge based on contact with any agent of such
authority.
4..1.11. Section 4.1.11 of the Disclosure Schedule lists all
federal, state, local, and foreign income Tax Returns filed with
respect to the Company for taxable periods ended on or after October
31, 1990, indicates those Tax Returns which have been audited, and
indicates those Tax Returns that are currently subject to audit.
4..1.12. Section 4.1.12 of the Disclosure Schedule contains
correct and complete copies of all federal income Tax Returns,
examination reports, and statements of deficiencies assessed against or
agreed to by Shareholder or the Company.
4..1.13. The Company has not; (i) filed a consent under Code Sec.
341(f) concerning collapsible corporations; (ii) made any payments, is
obligated to make any payments, or is a party to any agreement that
under certain circumstances could obligate it to make any payments that
will not be deductible under Code Sec. 280G; (iii) been a United States
real property holding corporation within the meaning of Code Sec.
897(c)(2) during the specific period specified in Code Sec.
897(c)(1)(A)(ii); (iv) failed to disclose on its federal income tax
returns all positions taken therein that could give rise to a substan
tial understatement of federal income tax within the meaning of Code
Sec. 6662; (v) a party to any tax allocation or sharing agreement; (vi)
a member of an affiliated group filing a consolidated federal income
tax return (other than a group the common parent of which is
Shareholder) or has any liability for the taxes of any person or entity
as a transferee or successor, by contract, or otherwise.
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4..1.14. Section 4.1.14 of the Disclosure Schedule lists all of
the real property owned by the Company, or in which it has an ownership
interest, with a brief description of each such property .
4..1.15. Section 4.1.15 of the Disclosure Schedule lists and
describes briefly all real property leased or subleased to the Company.
The Company has delivered to FNFI correct and complete copies of the
leases and subleases listed (as amended to date). With respect to each
lease and sublease listed in section 4.1.15 of the Disclosure Schedule:
4..1.15.1. To the knowledge of Shareholder and the
Company the lease or sublease is legal, valid, binding,
enforceable, and in full force and effect and will continue to be
legal, valid, binding, enforceable, and in full force and effect
on identical terms following the consummation of the transactions
contemplated hereby;
4..1.15.2. To the knowledge of Shareholder and the
Company no party to the lease or sublease is in breach or
default, and no event has occurred which, with notice or lapse or
time, would constitute a material breach or default or permit
termination, modification, or accelera tion thereunder;
4..1.15.3. No party to the lease or sublease has
repudiated any provision thereof;
4..1.15.4. There are no disputes, oral agreements, or
forbearance programs in effect as to the lease or sublease;
4..1.15.5. With respect to each sublease, the
representations and warranties set forth above are true and
correct with respect to the underlying lease;
4..1.15.6. The Company has not assigned, trans ferred,
conveyed, mortgaged, deeded in trust, or encum bered any interest
in the leasehold or sublease hold;
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4..1.15.7. To the knowledge of Shareholder and the
Company all facilities leased or subleased thereunder have
received all approvals or governmental authorities (including
licenses and permits) required in connection with the operation
thereof and have been operated and maintained in accordance with
applicable laws, rules, and regulations;
4..1.15.8. All facilities leased or subleased thereun
der are supplied with utilities and other services necessary for
the operation of said facilities; and
4..1.15.9. To the knowledge of Shareholder and the
Company the owner of the facility leased or subleased has good
and marketable title to the parcel of real property, free and
clear of any Security Interest, easement, covenant, or other
restriction, except for installments of special ease ments not
yet delinquent and recorded easements, cove nants, and other
restrictions which do not impair the current use, occupancy, or
value, or the marketability of title, of the property subject
thereto.
4..1.16. Section 4.1.16 of the Disclosure Schedule sets forth the
following information with respect to each insurance policy (including
policies providing property, casualty, liability, and workers'
compensation coverage and bond and surety arrangements) to which the
Company has been a party, a named insured, or otherwise the beneficiary
of coverage at any time within the past 5 years: (i) The name, address,
telephone number of the agent; (ii) The name of the insurer, the name
of the policyholder, and the name of each covered insured; (iii) The
policy number and the period of coverage; (iv) The scope (including an
indication of whether the coverage was on a claims made, occurrence, or
other basis) and amount (including a description of how deductibles and
ceilings and calculated and operate) of coverage; and (v) A description
of any retroactive premium adjustments or other loss-sharing
arrangements.
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4..1.17. To the knowledge of Shareholder no executive, key
employee, or group of employees has any plans to terminate employment
with the Company. The Company is not a party to or bound by any
collective bargaining agreement, nor has any of them experienced any
strikes, grievances, claims of unfair labor practices, or other
collective bargaining disputes. The Company has not committed any
unfair labor practice. None of the directors and officers (and
employees with responsibility for employment matters) of the Company
has any knowl edge of any organizational effort presently being made or
threatened by or on behalf of any labor union with respect to employees
or any of the Company.
4..1.18. Section 4.1.18 of the Disclosure Schedule lists each
Employee Benefit Plan that the Company maintains or to which any of
them contributes. Each such Employee Benefit Plan (and each related
trust, insurance contract or fund) complies in form and in operation in
all respects with the applicable requirements of ERISA, the Code, and
other applicable laws. All required reports and descriptions (including
Form 5500 Annual Reports, Summary Annual Reports, PBGC-1's, and Summary
Plan Descriptions) have been filed or distributed appropriately with
respect to each such Employee Benefit Plan. The requirements of Part 6
of Subtitle B of Title I of ERISA and of Code Sec. 4980B have been met
with respect to each such Employee Benefit Plan which is an Employee
Welfare Benefit Plan. All contributions (including all employer
contributions and employee salary reduction contributions) which are
due have been paid to each such Employee Benefit Plan which is an
Employee Pension Benefit Plan and all contributions for any period
ending on or before the Closing Date which are not yet due have been
paid to each such Employee Pension Benefit Plan or accrued in
accordance with the past custom and practice of the Company. All
premiums or other payments for all periods ending on or before the
Closing Date have been paid with respect to each such Employee Benefit
Plan which is an Employee Welfare Benefit Plan. Each such Employee
Benefit Plan which is an Employee Pension Benefit Plan meets the
requirements of a "qualified plan" under Code Sec. 401(a) and has
received, within the last two years, a favorable determination letter
from the Internal Revenue Service. The market value of assets under
each such Employee Benefit Plan which is an Employee Pension Benefit
Plan (other than any Multi employer Plan) equals or exceeds the present
value of all bested and
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nonvested Liabilities thereunder determined in accordance with PBGC
methods, factors, and assumptions applicable to an Employee Pension
Benefit Plan terminating on the date of determination. The Company has
delivered to FNFI correct and complete copies of the plan documents and
summary plan descriptions, the most recent determination letter
received from the Internal Revenue Service, the most recent Form 5500
Annual Report, and all related trust agreements, insurance contracts,
and other funding agreements which implement each such Employee Benefit
Plan.
4..1.19. With respect to each Employee Benefit Plan that the
Company maintains or ever has maintained or to which it contributes,
ever has contributed, or ever has been required to contribute; (i) No
such Employee Benefit Plan which is an Employee Pension Benefit Plan
(other than any Multi employer Plan) has been completely or partially
terminated or been the subject of a reportable event as to which
notices would be required to be filed with the PBGC. No proceeding by
the PBGC to terminate any such Employee Pension Benefit Plan (other
than any Multi employer Plan) has been instituted or threatened; (ii)
There have been no prohibited transactions with respect to any such
Employee Benefit Plan. No fiduciary has any liability for breach of
fiduciary duty or any other failure to act or comply in connection with
the administration or invest ment of the assets of any such Employee
Benefit Plan. No action, suit, proceeding, hearing, or investigation
with respect to the administration or the investment of the assets of
any such Employee Benefit Plan (other than routine claims for benefits)
is pending or threatened and neither Shareholder nor the Company have
no knowledge of any basis for any such action, suit, proceeding,
hearing, or investigation; (iii) The Company has not incurred, and
Shareholder and the Company have no reason to expect that the Company
will incur, any liability to the PBGC (other than PBGC premium
payments) or otherwise under Title IV of ERISA (including any
withdrawal Liability) or under the Code with respect to any such
Employee Benefit Plan which is an Employee Pension Benefit Plan.
4..1.20. The Company does not contribute to, ever has contributed
to, or ever has been required to contribute to any Multi employer Plan
or has any liability (including withdrawal Liability) under any Multi
employer Plan.
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4..1.21. The Company does not maintain or ever has maintained or
contributes, ever has contributed, or ever has been required to
contribute to any Employee Welfare Benefit Plan providing medical,
health, or life insurance or other welfare-type benefits for current or
future retired or terminated employees, their spouses, or their
dependents (other than in accordance with Code Sec. 4980(B).
4..1.22. The Company owns or has the right to use pursuant to
license, sublicense, agreement, or permission all intellectual property
necessary for the operation of their businesses as presently conducted.
Each item of intellectual property owned or used by any of the Company
immediately prior to the Closing hereunder will be owned or available
for use by FNFI on identical terms and conditions immediately
subsequent to the Closing hereunder. The Company has taken all
necessary action to maintain and protect each item of intellectual
property that it owns or uses.
4..1.23. The Company has not interfered with, infringed upon or
misappropriated any intellectual property rights of third parties, and
has never received any charge, complaint, claim, demand, or notice
alleging any such interference, infringement, misappropriation, or
violation. No third party has interfered with, infringed upon or
misappropriated any intellectual property rights of the Company.
4..1.24. The Company, and its respective predecessors and
affiliates has complied with all Environmental, Health, and Safety
Laws, and no action, suit, proceeding, hearing, investigation, charge,
complaint, claim, demand, or notice has been filed or commenced against
it alleging any failure so to comply. Without limiting the generality
of the preceding sentence, the Company and its respective predecessors
and affiliates has obtained and been in compliance with all of the
terms and conditions of all permits, licenses, and other authorizations
which are required under, and has complied with all other limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables which are contained in, all
Environmental, Health, and Safety Laws.
4..1.25. The Company has no Liability has not handled or disposed
of any substance, arranged for the disposal of any substance,
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exposed any employee or other individual to any substance or condition,
or owned or operated any property or facility in any manner that could
form the basis for any present or future action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand against the
Company giving rise to any liability for damage to any site, location,
or body of water (surface or subsurface), for any illness of or
personal injury to any employee or other individual, or for any reason
under any Environmental, Health, and Safety Law.
4..1.26. To the knowledge of Shareholder and the Company all
properties used in the business of the Company, and its respective
predecessors and affiliates have been free of asbestos, PCB's,
methylene chloride, trichloroethylene, 1,2-trans-dichloroethylene,
dioxins, dibenzofurans, and extremely hazardous substances.
4..1.27. None of the Company's shareholders, or their affiliates
has been involved in any business arrangement or relationship with the
Company within the past 12 months, and none of its shareholders or
their affiliates owns any asset, tangible or intangible, which is used
in the business of the Company.
4..1.28. All accounts receivable reflected on the October 31,
1994 and April 30th, 1995 Financial Statements were, and all such
receivables on the date hereof are, valid obligations of the respective
makers thereof and were not, and are not, to the knowledge of
Shareholder, subject to any valid offset or counterclaim, are
collectible in full net of any reserves set forth in the Financial
Statements, and are not subject to any assignment, claim, lien or
security interest.
4..1.29. There are no actions, suits, claims, complaints,
charges, hearings, investigations, arbitration (or other dispute reso
lution proceedings) or other proceedings pending or, to the knowledge
of Shareholder, threatened against or affecting the Company in any
court or panel or before any arbitrator or governmental agency,
domestic or foreign. The Company has not been charged with, and to the
best of Shareholder's knowledge, is not under investigation with
respect to, any charge concerning any violation of any provision of any
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41
federal, state or other applicable law or regulation with respect to
the business of the Company.
4..1.30. Other than as disclosed in the Disclosure Schedule under
another section of this Agreement the Company is not a party to, bound
by or the beneficiary of any instrument, commitment, agree ment,
arrangement or understanding meeting any of the descriptions set forth
below (the "Material Contracts"):
4..1.30.1. Real estate leases, personal property leases,
insurance policies, licenses of Intellectual Prop erty, technical
information or software, Employment Contracts or Benefit Plans,
as one or more of these terms may be described below or are
otherwise understood.
4..1.30.2. Any contract or agreement requiring a capital
expenditure or the purchase of goods or services in excess of $
15,000 over the remaining term thereof.
4..1.30.3. Any instrument evidencing indebtedness (other
than routine purchase orders or trade payable), any liability for
borrowed money, any obligation for the deferred payment for the
purchase price for property in excess of $ 15,000, or any
instrument guaranteeing any indebtedness, obligation or liability
of another.
4..1.30.4. Any deed, xxxx of sale, lease, easement,
agreement or other instrument affecting any right, title or
interest in any real or personal property, other than minor
pieces of office equipment and other immaterial items.
4..1.30.5. Any contract or agreement with any
governmental agency or authority.
4..1.30.6. Any license or royalty agreement.
4..1.30.7. Any power of attorney, proxy or similar
instrument or agreement.
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4..1.30.8. Any warranty or service contract obligating
the Company to provide goods or services to another for any
period of time which is not terminable by the Company upon not
more than 30 days without penalty or claim for damages.
4..1.30.9. Any contract containing covenants not to
compete in any line or business or with any person in any
geography area.
4..1.31. Accurate, correct and complete copies of each Material
Contract have been made available to FNFI. Each Material Contract is in
full force and effect and is valid, binding and enforceable in accor
dance with its terms. The Company, and to Shareholder's knowledge, each
other party has complied in all material respects with all material
commitments and obligations on their part to be performed or observed
under each Material Contract. No event has occurred which is or, after
the giving of notice or the passage of time, or both, would constitute
a material breach or default under a Material Contract on the part of
the Company, or to the knowledge of Shareholder, any other party. The
Company has not received any written notice, or to Shareholder's
knowledge, been given other notice of an intention to cancel or
terminate a Material Contract or to exercise or not exercise options or
rights under a Material Contract. The Company has not received any
written, or to Shareholder's knowledge, other notice of a default,
offset or counterclaim under any Material Contract, or any other
written or, to their knowledge, other communication calling upon the
Company to comply with any provision of any Material Contract or
asserting the failure of the Company to comply with any Material
Contract. The consummation of the transactions contemplated hereby,
without notice to or consent or approval of any party, will not
constitute a default under or a breach of any provision of a Material
Contract, and the Company will have and may enjoy and enforce all
rights and benefits under each Material Contract after the Closing.
There is no security interest, lien, encumbrance or claim of any kind
on the Company under any Material Contract.
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4..1.32. Section 4.1.32 of the Disclosure Schedule contains a
true and complete list of the names and compensation arrangements of
all employees, officers and directors of the Company and, with respect
to those whose current annual rate of compensation from the Company
equals or exceeds $ 35,000, a list and summary description of all
written and unwritten agreements, arrangements or understanding, with
officers, directors and employees of the Company, regarding services to
be rendered, terms and conditions of employment and compensation (the
"Employment Contracts").
4..1.33. The Company does not have any "welfare benefit plans"
(as defined in Section 3(1) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")), "employee pension benefit plans"
(as defined in Section 3(2) of ERISA), bonus, profit sharing, deferred
compensation, severance, termination, incentive or other compensation
plans or arrangements, or other employee fringe benefit plans, whether
funded or unfunded, qualified or unqualified, maintained or contributed
to by the Company for the benefit of any current or former employees of
the Company or any other individual who currently provides, or formerly
provided, services to the Company as an independent contractor (all of
the foregoing are collectively referred to as "Benefit Plans"). The
transactions contemplated by this Agreement will not result in the
right of any employee to terminate his or her employment relationship
with the Company or create any severance or termination obligation of
the Company.
4..1.34. Except to the extent reflected on the Financial State
ment as of April 30, 1995, the Company does not have any material
indebtedness, liability or obligation of any nature, whether absolute
or contingent, related to or arising from the operation of the business
or the ownership, possession or use of any assets.
4..1.35. None of the information furnished by Shareholder or the
Company to FNFI shall contain any untrue statement of a material fact
or omit to state any fact, the omission of which would be misleading.
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44
4..1.36. No person has asserted to the Company in writing, or to
Shareholder's knowledge, otherwise, any claim for indemnification under
the Company's Articles of Incorporation or bylaws, or under applicable
state law, or any Agreement, and to the best of Sharehold er's
knowledge, no basis for such claim exists.
4..1.37. Since April 30th, 1995, there have not been (i) any
changes in the assets, liabilities, financial condition, or operations
of the Company from that reflected in the Financial Statements, except
changes in the ordinary course of business that have not been, either
individually or in the aggregate, materially adverse; (ii) any loan or
advance except normal travel advances or reasonable expense advances to
any director, officer or employee of the Company; (iii) any forgiveness
or cancellation of any debts or obligations due the Company; (iv) the
waiver of any rights or the discharge or satisfaction of any lien,
charge, or encumbrance or payment of any liability or obligation, other
than the payment of current liabilities in the ordinary course of
business; (v) any cancellation, acceleration, termination, or
modification of any agreement, contract, lease, or license (or series
of related agreements, contracts, leases, and licenses) involving more
than $15,000 to which the Company is a party to or bound by; (vi) an
imposition of any liens or encumbrances on or against the assets of the
Company; (vii) any postponement of the payment of accounts payable or
other liabilities outside the ordinary course of business; (viii) any
licenses or sublicenses granted with respect to any intellectual
property of the Company or (ix) any other transaction other than in the
ordinary course of business consistent with past practices.
4..1.38. The Company has materially complied with all statutes,
codes, ordinances, licensing requirements, laws, rules, regulations, xx
xxxxx, awards or orders applicable to its business or operations,
including those relating to employment, environmental matters, employee
benefits, the production, marketing and sale of its products and
services, trade regulations, antitrust, warranties and control of
foreign exchange.
4..1.39. Neither the Company, nor to the knowledge of
Shareholder, have any of the Company's officers, directors, agents,
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45
employees, associates or any other person acting on behalf of the Com
pany (i) made any unlawful domestic or foreign political contributions,
(ii) made any payment or provided any services which were not legal to
make or provide or which the Company or any such officer, employee or
other person should have known were not legal for the payee or the
recipient of such services to receive, (iii) received any payments,
services or gratuities which were not legal to receive or which the
Company or such person should have known were not legal for the payor
or the provider to make or provide, (iv) had any transactions or
payments which were not recorded in the Company's accounting books and
records or disclosed in its financial statements, (v) had any off-book
bank or cash account or "slush fund", (vi) made any payments to
governmental officials in their individual capacities for the purpose
of affecting their action or the action of the government they
represent to obtain special concessions, or (vii) made illegal payments
to obtain or retain business.
4..1.40. Neither Shareholder nor the Company has retained any
broker, finder, agent or other intermediary or incurred any liability
or obligation for any brokerage fees, commissions or finders fees with
respect to this Agreement or the transactions contemplated by this
Agreement.
4..2. FNFI's Representations and Warranties. FNFI hereby represents and
warrants to Shareholder that as of the date hereof and as of the Closing Date:
4..2.1. FNFI is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, is
qualified to do business and in good standing in those states where the
failure to so qualify would have a material adverse affect on the
business, financial condition or the results of its operations, has
full corporate power and authority to own its properties and to carry
on its business in the manner in which it is currently conducted and
has complied in all material respects with all material federal, state,
and local laws with respect to the operation and conduct of its
business.
4..2.2. FNFI has full power and authority and has taken all
necessary action to execute and deliver this Agreement and to carry out
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46
the transactions contemplated hereby. All corporate and other action
required to be taken to authorize the execution, delivery and perfor
xxxxx of this Agreement and the transactions contemplated hereby has
been duly and properly taken. No consents or approvals of any third
parties are necessary, or will be necessary, in connection with the
execution and delivery of this Agreement or the consummation of the
transactions contemplated herein by FNFI.
4..2.3. This Agreement, and the documents to be delivered at the
Closing, have been duly executed and delivered and are the lawful,
valid and legally binding obligation of FNFI, enforceable against FNFI
in accordance with their respective terms.
4..2.4. FNFI shall acquire the Stock for its own account, for
investment purposes only and not with a view to the distribution or
resale thereof; provided, however, that the disposition of the Stock
shall at all times remain within the sole control of FNFI.
4..2.5. FNFI has not retained any broker, finder, agent or other
intermediary or incurred any liability or obligation for any brokerage
fees, commissions or finders fees with respect to this Agreement or to
the transactions contemplated by this Agreement.
V. Conditions to Closing
5..1. Conditions for the Benefit of FNFI. The obligation of FNFI to
consummate the transactions contemplated by this Agreement is subject to the
prior or concurrent satisfaction of each of the following conditions:
5..1.1. Warranties and Covenants. The representations and
warranties of Shareholder contained herein shall be accurate in all
material respects as if made on and as of the Closing Date, as well as
the date of this Agreement. Shareholder shall have performed all of the
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47
obligations and compiled with each and all of the covenants required to
be performed or complied with on or prior to the Closing.
5..1.2. No Pending Actions. No action or proceeding before any
court or governmental body shall be pending or threatened wherein an
unfavorable judgement, decree or order would prevent the carrying out
of this Agreement or any of the transactions contemplated hereby,
declare unlawful the transactions contemplated by this Agreement, cause
such transactions to be rescinded, or which might affect the right of
FNFI to own or control the Stock.
5..1.3. Consents. All consents by third parties that are required
for the transfer of the Stock or that are required for the consummation
of the transactions contemplated hereby, or that are required in order
to prevent a breach of or a default under or a termination of any
agreement to which the Company or Shareholder is a party or to which
any portion of the property of the Company is subject will be obtained
or provided for.
5..1.4. Release. Imperial Bank shall have released any and all
interest it has in the Stock, the Intercompany Obligations, and or
assets of the Company.
5..2. Conditions for the Benefit of Shareholder. The obligation of
Shareholder to consummate the transactions contemplated by this Agreement is
subject to the prior or concurrent satisfaction of each of the following
conditions:
5..2.1. Warranties and Covenants. The representations and
warranties of FNFI contained herein shall be accurate in all material
respects as if made on and as of the Closing Date, as well as the date
of this Agreement. FNFI shall have performed each and all of the
obligations and complied with each and all of the covenants specified
in this Agreement to be performed or complied with on or prior to the
Closing.
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5..2.2. No Pending Actions. No action or proceeding before any
court or governmental body shall be pending or threatened wherein an
unfavorable judgement, decree or order would prevent the carrying out
of this Agreement or any of the transactions contemplated hereby,
declare unlawful the transactions contemplated by this Agreement, or
cause such transactions to be rescinded.
5..2.3. Consents. All consents by third parties that are required
for the consummation of the transactions contemplated hereby, or that
are required in order to prevent a breach of or a default under or a
termination of any agreement to which FNFI is a party or to which any
portion of its assets are subject, will be obtained or provided for.
VI. Survival of Representation and Warranties; Indemnification
6..1. Survival of Representations and Warranties. The representations
and warranties of the Company, Shareholder and FNFI shall survive the Closing
and shall continue until the expiration of the applicable statutory period of
limitations on the commencement of a cause of action for the breach of contract,
except for the provisions of Sections 4.1.9 thru and including 4.1.13. relative
to taxes, which shall survive until the expiration of the applicable statute of
limitations, including any waivers or extensions thereof.
6..2. Indemnification of FNFI. Subject to the provisions of Section
6.5.2, the Company and Shareholder jointly and severally agree to indemnify,
defend and hold harmless FNFI from and against any and all losses, damages,
claims, suits, proceedings, liabilities and expenses (including without
limitation, reasonable attorney's fees) ("Losses" or "Claims" as the context
requires) which may be imposed on, sustained, incurred, suffered by or asserted
against FNFI, directly or indirectly, as a result of, relating to or arising out
of (a) the breach of any representation or warranty or covenant or agreement of
the Company or Shareholder contained in this Agreement or (b) any Claims arising
from the actions of the Company or Shareholder prior to the Closing Date.
6..3. Indemnification of the Shareholder. FNFI agrees to indemnify,
defend and hold harmless Shareholder from and against any and all losses,
damages,
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claims, suits, proceedings, liabilities and expenses (including without
limitation, reasonable attorney's fees) ("Losses" or "Claims" as the context
requires) which may be imposed on, sustained, incurred, suffered by or asserted
against Share holder, directly or indirectly, as a result of, relating to or
arising out of the breach of any representation or warranty or covenant or
agreement of FNFI contained in this Agreement.
6..4. Procedures for Indemnification.
6..4.1. If a party to this Agreement entitled to assert a Claim
under this Agreement shall receive notice of the assertion by a person
who is not a party to this Agreement of any claim or the commence ment
by any such person of any action or proceeding ( a "Third Party Claim")
with respect to which FNFI or the Company and Shareholder are obligated
to provide indemnification, the indemnified party (the Indemnitee")
shall give the indemnifying party (the "Indemnitor") prompt notice
thereof. Such notice shall describe the Third Party Claim in reasonable
detail.
6..4.2. The Indemnitor may elect to compromise or defend, at such
Indemnitor's own expense and by Indemnitor's own counsel, which shall
be reasonably acceptable to the indemnified party, any Third Party
Claim. If an Indemnitor elects to defend a Third Party Claim, it shall,
within 30 days of receipt of the notice referred to in Section 6.4.1
above (or sooner, if the nature of such Third Party Claim so requires),
notify the related Indemnitee of its intent to do so, and such
Indemnitee shall reasonably cooperate in the compromise of, or defense
against, such Third Party Claim. The Indemnitor shall pay such
Indemnitee actual out-of-pocket expenses incurred in connection with
such cooperation. If an Indemnitor elects not to defend against a Third
Party Claim, or fails to notify an Indemnitee of its election as
provided in Section 6.4.1 above, Indemnitee may without advance written
notice to the Indemnitor, pay, compromise or defend such Third Party
Claim reasonably and in good faith on behalf of and for the account of
the Indemnitor. No Indemnitor shall consent to entry of any judgment or
enter into any settlement against or with respect to any Indemnitee
without the written consent of such Indemnitee, unless such judgment or
settlement (i) provides solely for money damages or other
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payments for which such Indemnitee is entitled to indemnification
hereunder and (ii) includes as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnitee of a release from all
liability in respect to such Third Party Claim.
6..4.3. With respect to any Claim hereunder which does not result
from a Third Party Claim, the Indemnitor shall have a period of thirty
(30) days from receipt of notice from the Indemnitee within which to
respond thereto. If such Indemnitor does not respond within such 30-day
period or rejects such Claim in whole or in part, such Indemnitee shall
be free to pursue such remedies as may be available to such Indemnitee
under applicable law.
6..4.4. If the amount of any Claim or Loss shall, at any time
subsequent to payment pursuant to this Agreement, be reduced by
recovery, settlement or otherwise, the amount of such reduction, less
any expenses incurred in connection therewith, shall promptly be repaid
by the Indemnitee to the related Indemnitor.
6..5. Remedies. No action for indemnification under this Article VI may
be brought with respect to a breach of any representations and warranties after
the date indicated in Section 6.1 above unless, prior to the date such
representations and warranties expire, the party seeking indemnification has
notified in reasonable detail the party from whom indemnification is sought of a
claim for indemnity hereunder.
VII. General Provisions
7..1. Amendment and Waiver. No amendment or waiver of any of the
provisions of this Agreement shall be effective unless the same shall be in
writing and signed by the parties hereto. Furthermore, any such written waiver
or amendment shall be effective only for the specific instance and for the
specific purpose for which it was given.
7..2. Costs and Expenses. Each party to this Agreement shall bear their
own costs and expenses incurred in connection with the preparation of this
Agreement and the consummation of the transactions contemplated hereunder. Not
withstanding
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the foregoing, the Company shall not incur nor be responsible for any costs or
expenses, including attorneys fees, in connection with this Agreement or the
transactions contemplated herein.
7..3. Notices. All notices, requests, demand and other communications
hereunder, whether or not required, shall be in writing and shall be sent by
registered or certified mail, or any recognized national delivery service,
postage prepaid, return receipt required, as follows:
If to FNFI: Xxxxxx X. Xxxxxx
Executive Vice President and
General Counsel
Fidelity National Financial, Inc.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
If to Shareholder: WTC Financial
00000 Xxx Xxxxxx Xxxxxx, xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: President
With a copy to: Xxxxxx X. Xxxx, Esq.
PALMIERI, TYLER, WIENER,WILHELM&
XXXXXXX
0000 Xxxx Xxxxxx, Xxxxx0000
Xxxxxx, Xxxxxxxxxx 00000
If to The Company: Spatial Data, Inc.
000 Xxxxxxx Xxxxxxx Xx.
Xxxxx 000
Xxxxxxxx Xx. 00000
Attn: President
or to such other addresses as either party may from time to time provide to the
other by notice hereunder. All such notices shall be effective when deposited
with the designated carrier addressed as set forth above.
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7..4. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, all of which however,
shall constitute one and the same agreement.
7..5. Affiliates. For purposes of this Agreement "Affiliates" of a
person shall mean a person who directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such person; the term "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise.
7..6. Parties in Interest. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns. However, except as set forth in the
preceding sentence, this agreement is intended solely for the benefit of the
parties hereto and no third party shall be a beneficiary or have the right to
enforce this Agreement or any of the terms and provisions hereof.
7..7. Entire Transaction. This Agreement and the documents and trans
actions referred to herein and the Addendum Agreement of even date herewith,
constitute the full and complete understanding of the parties hereto with
respect to these transactions and supersede all other agreements and
understandings of the parties hereto. There have been no representations or
statements made concerning this transaction except asset forth in this Agreement
and neither party is relying upon any representation or statement except those
set forth in this Agreement in determining to enter into this Agreement.
7..8. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California, including the choice of
law provisions thereof. The parties hereto consent to the jurisdiction of the
Courts of California and to the venue of the County of Orange with respect to
all matters relating to this Agreement. Should any provision of this Agreement
be found to be invalid, unenforceable, or void for any reason, the remaining
provisions of this Agreement shall remain in full force and effect as though the
invalid, unenforceable or void provision were not a part of hereof.
7..9. Headings. The section and other headings contained in this
Agreement are for the convenience of the parties, are for reference purposes
only, and shall not affect in any way the meaning or interpretation of this
Agreement.
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7..10. Expenses. Except as otherwise expressly provided herein to the
contrary, each party to this Agreement shall pay their respective costs and
expenses in connection with the transactions referred to herein.
7..11. Joint Cooperation. The Parties shall cooperate fully with each
other and their respective counsel and accountants and to execute and deliver
any further documents that may be reasonably necessary in connection with any
steps required to be taken as part of their respective obligations under this
Agreement.
7..12. Joint Preparation. All parties to this Agreement have been
represented by competent counsel. This Agreement has been jointly prepared by
the Parties, and any uncertainties or ambiguity existing in it shall not be
interpreted against any of the parties under the presumptions of California
Civil Code Section 1654, but rather shall be interpreted according to the rules
generally governing the interpretation of contracts.
7..13. Injunctive Relief. The parties hereto agree that money damages
would be an insufficient remedy for any breach of this Agreement by Shareholder
and that FNFI shall be entitled to an injunction and specific performance as a
remedy for any such breach, without proof of actual damages and without the
necessity of posting a bond or other security, such proof and security being
waived by Shareholder. Such remedy shall not be deemed to be the exclusive
remedy for any such breach but shall be in addition to all other remedies
available to FNFI at law or in equity.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by their duly authorized representatives, as of the
date first above written.
FIDELITY NATIONAL FINANCIAL,
INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxxx X. Xxxxxx
Its: General Counsel
WTC FINANCIAL, a California
corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxx
Its: President
SPATIAL DATA, INC., a California
corporation
By:/s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Its:Chairman
----------------------------
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STOCK PURCHASE AGREEMENT
By this Agreement made and entered into as of this ____ day of June,
1995, Fidelity National Financial, Inc., a Delaware corporation ("FNFI"); WTC
Financial, a California corporation ("Shareholder"), and Spatial Data, Inc., a
California corporation (the "Company") state, confirm and agree as follows:
I. Recitals
1..1. Spatial Data Inc. Shareholder is the record and beneficial owner
of One Hundred and Fifty Six Thousand (156,000) shares of capital stock of
Spatial Data Inc., a California corporation ("the Company"), which represents
approximately sixty two percent (62.4%) of the issued and outstanding stock of
the Company (the "Stock").
1..2. Notes Receivable. Shareholder is the holder and beneficial owner
of certain notes receivable and other intercompany receivables (the
"Intercompany Obligations") under which the Company is indebted to Shareholder
in the aggregate amount of Four Hundred and Eight Thousand dollars($408,000).
1..3. Purchase. FNFI desires to acquire the Stock and Intercompany
Obligations from Shareholder.
1..4. Sale. Shareholder desires to sell to FNFI the Stock and the
Intercompany Obligations on and subject to the terms and conditions set forth
below.
II. Purchase and Sale
2..1. Sale. At the Closing, as defined below, Shareholder shall sell,
transfer, assign, and deliver to FNFI, in reliance upon the representations and
warranties set forth below, the Stock and the Intercompany Obligations on and
subject to the terms, covenants and conditions set forth below and FNFI shall
purchase the Stock and Intercompany Obligations for the consideration set forth
in Section 2.2 below.
1
