Investment Agreement (2009)Full Document 

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INVESTMENT AGREEMENT
by and between
FIDELITY NATIONAL INFORMATION SERVICES, INC.
and
INVESTORS
 
DATED AS OF MARCH 31, 2009

 


 

TABLE OF CONTENTS
     
    Page
ARTICLE I ISSUANCE AND SALE OF SECURITIES
  1
 
   
1.1   Issuance and sale of Shares
  1
 
   
1.2   Closing
  2
 
   
1.3   Conditions Precedent to the Investors’ Obligations
  2
 
   
1.4   Conditions Precedent to Georgia’s Obligations
  4
 
   
ARTICLE II REPRESENTATIONS AND WARRANTIES OF GEORGIA
  5
 
   
2.1   Corporate Organization
  6
 
   
2.2   Capitalization
  7
 
   
2.3   Authority; No Violation
  8
 
   
2.4   Consents and Approvals
  9
 
   
2.5   Reports
  10
 
   
2.6   Financial Statements
  10
 
   
2.7   Broker’s Fees
  11
 
   
2.8   Absence of Certain Changes or Events
  11
 
   
2.9   Legal Proceedings
  12
 
   
2.10 Taxes and Tax Returns
  13
 
   
2.11 Employee Benefits
  15
 
   
2.12 Compliance with Law; Permits
  17
 
   
2.13 Certain Contracts
  18
 
   
2.14 Undisclosed Liabilities
  18
 
   
2.15 Environmental Liability
  18
 
   
2.16 Real Property
  19
 
   
2.17 Internal Controls
  20
 
   
2.18 Intellectual Property
  21
 
   
2.19 Insurance
  22
 
   
2.20 Affiliate Transactions
  22
 
   
ARTICLE III REPRESENTATIONS AND WARRANTIES OF INVESTOR
  23
 
   
3.1   Organization and Qualification
  23
 
   
3.2   Power and Authority; No Violation
  23
 
   
3.3   Consents and Approvals
  24
 
   
3.4   Purchase for Investment
  24

 


 

     
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3.5   Litigation and Other Proceedings
  24
 
   
3.6   Broker’s Fees
  24
 
   
3.7   Financial Capability
  25
 
   
ARTICLE IV COVENANTS
  25
 
   
4.1   Conduct of Businesses Prior to the Investment Closing
  25
 
   
4.2   Further Assurances
  26
 
   
4.3   Access to Information
  27
 
   
4.4   NYSE Listing
  27
 
   
4.5   Shareholder Approval
  27
 
   
4.6   Rule 144
  28
 
   
4.7   Legends
  28
 
   
4.8   Confidentiality
  28
 
   
4.9   Transfer Restrictions; Registration Rights
  29
 
   
4.10 Additional Actions
  30
 
   
4.11 Rule 16b-3
  30
 
   
4.12 Notification
  31
 
   
4.13 Reserved
  31
 
   
4.14 Governance Matters
  31
 
   
4.15 Indemnity
  32
 
   
4.16 Tail Expense Reimbursement
  33
 
   
ARTICLE V TERMINATION AND AMENDMENT
  33
 
   
5.1   Termination
  33
 
   
5.2   Effect of Termination
  34
 
   
5.3   Amendment; Waiver
  34
 
   
ARTICLE VI GENERAL PROVISIONS
  34
 
   
6.1   Survival of Representations, Warranties and Covenants
  34
 
   
6.2   Expenses
  35
 
   
6.3   Notices
  35
 
   
6.4   Interpretation
  37
 
   
6.5   Counterparts
  37
 
   
6.6   Entire Agreement
  37
 
   
6.7   Governing Law; Jurisdiction
  37
 
   
6.8   Publicity
  38

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    Page
6.9   Assignment; Third Party Beneficiaries
  38
 
   
6.10 Specific Performance
  38
 
   
6.11 Severability
  39
 
   
6.12 No Recourse
  39
 
   
EXHIBITS AND SCHEDULES
   
Exhibit A - Definitions
   
Exhibit B - Reserved
   
Exhibit C-1 - THL Fee Letter
   
Exhibit C-2 - FNF Fee Letter
   
Exhibit D - Registration Procedures
   
Exhibit E - Knowledge of Georgia
   
Exhibit F - Knowledge of Wisconsin
   
Exhibit G - Form of Management Rights Letter
   
Schedule 1 - Investors
   

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INVESTMENT AGREEMENT
          INVESTMENT AGREEMENT, dated as of March 31, 2009 (this “Agreement”), by and between FIDELITY NATIONAL INFORMATION SERVICES, INC., a Georgia corporation (“Georgia”) and the INVESTORS listed on Schedule 1 hereto (each an “Investor”, and, collectively, the “Investors”). The Affiliates of Thomas H. Lee Partners, L.P. shall be referred to herein, and designated on Schedule 1 as, the “THL Investors”. Fidelity National Financial, Inc. shall be referred to herein, and designated on Schedule 1, as the “FNF Investor”. The investment in Georgia to be made by the THL Investors shall be referred to herein as the “THL Investment”. The investment in Georgia to be made by the FNF Investors shall be referred to herein as the “FNF Investment”. The THL Investment and the FNF Investment, collectively, shall be referred to herein as the “Investments”. All capitalized terms used but not defined herein shall have the meanings given on Exhibit A hereto.
W I T N E S S E T H:
          WHEREAS, Georgia, Wisconsin LLC, a Delaware limited liability company (“Merger Sub”), and Metavante Technologies, Inc., a Wisconsin corporation (“Wisconsin”), are parties to an Agreement and Plan of Merger, dated as of the date hereof (as in effect on the date hereof, the “Merger Agreement”) providing, subject to the terms and conditions thereof, for the Merger; and
          WHEREAS, in connection with, and contingent upon the completion of, the Merger, the Investors desire to make the Investments subject to the terms and conditions hereof consisting of the purchase by the Investor as provided herein of shares of common stock, par value $0.01 per share, of Georgia (the “Common Stock”).
          NOW THEREFORE, in consideration of the premises and of the respective representations, warranties, covenants and conditions contained herein, the parties hereto agree as follows:
ARTICLE I
ISSUANCE AND SALE OF SECURITIES
          1.1 Issuance and sale of Shares. Subject to the terms and conditions of this Agreement, on the Investment Closing Date, Georgia shall issue, sell and deliver to (i) the THL Investors, and the THL Investors shall purchase from Georgia, 12,861,736 shares (the “THL Fixed Number”) of Common Stock (the “THL Shares”), free and clear of all Liens, for an aggregate purchase price of $199,999,994.80 in cash to be paid in full by the THL Investors to Georgia (the “THL Purchase Price”) and (ii) the FNF Investor, and the FNF Investor shall purchase from Georgia, 3,215,434 shares (the “FNF Fixed Number”) of Common Stock (the “FNF Shares” and together with the THL Shares, the “Shares”), free and clear of all Liens, for an aggregate purchase price of $49,999,998.70 in cash to be paid in full by the FNF Investor to Georgia (the “FNF Purchase Price”). The number of Shares to be purchased by each THL Investor and the THL Purchase Price thereof is as set forth on Schedule 1.

 


 

          1.2 Closing. The consummation of the transactions contemplated hereby (the “Investment Closing”) shall take place, subject to the satisfaction or waiver of all conditions to the Investment Closing set forth in Sections 1.3 and 1.4 hereof, as applicable, at the offices of Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York City, on the first date on which all conditions set forth in Section 1.3 and 1.4 hereof have been satisfied or waived (other than those conditions that by their nature are to be satisfied by actions taken at the Investment Closing, which must be satisfied or waived at the Investment Closing). The date on which the Investment Closing occurs is the “Investment Closing Date” and the time at which the Investment Closing occurs is the “Investment Closing Time”.
          1.3 Conditions Precedent to the Investors’ Obligations. The obligation of the Investors to consummate the transactions contemplated hereby on the Investment Closing Date is subject to the satisfaction or waiver by the Investors of each of the following conditions:
          (a) No Injunction or Restraints; Illegality. No judgment, order, decree, statute, law, ordinance, rule or regulation, or other legal restraint or prohibition, entered, enacted, promulgated, enforced or issued by any court or other Governmental Entity of competent jurisdiction shall be in effect that makes illegal or prohibits the consummation of the Investments.
          (b) HSR Act. Any waiting period applicable to the Investments under the HSR Act shall have expired or been earlier terminated.
          (c) Shareholder Approval. (i) the Georgia Shareholder THL Investment Approval shall have been obtained; and (ii) the Georgia Shareholder FNF Investment Approval shall have been obtained.

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