EXHIBIT 10.46
CROSS CONVEYANCE AND JOINT OWNERSHIP AGREEMENT
This Joint Ownership Agreement (this "Agreement"), dated March 4, 2005 is
entered into between LSI Title Company, a California corporation ("LSI") and
Rocky Mountain Support Services, Inc., an Arizona corporation ("RMSS"). Each of
LSI and RMSS shall hereinafter be referred to as a "Party" and, collectively, as
the "Parties."
WHEREAS, LSI has been developing software known between the Parties as
eLenderSolutions as more particularly described on Exhibit A
("eLenderSolutions");
WHEREAS, RMSS and LSI have each paid for a portion of the development of
eLenderSolutions;
WHEREAS, the Parties believe that it is in their respective interests to
share in ownership of eLenderSolutions;
NOW THEREFORE, in consideration of the mutual covenants and the promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties, intending to be
legally bound hereby, agree as follows:
1. Grant of Ownership.
1.1 Each of LSI and RMSS grants, conveys, assigns and sets over to the
other, and each of LSI and RMSS accepts from the other, any and all
rights that each has in eLenderSolutions, such that both LSI and RMSS
have an undivided interest in and are joint owners of all right, title
and interest, including copyrights, in and to eLenderSolutions and any
related documentation held by either of them heretofore.
1.2 Notwithstanding the undivided half interests of LSI and RMSS in
eLender Solutions, the Parties shall have no duty of accounting to one
another with regard to revenue derived from any license, transfer or
other transaction involving eLender Solutions. Subject to Section 4
herein, either party may license or otherwise exploit eLender
Solutions in any manner it sees fit and need not obtain consent from
the other party to do so, and the parties shall cooperate with one
another in filing for or registering with any relevant governmental
authority any proprietary rights, including without limitation
copyrights, in eLender Solutions, and shall execute reasonably
promptly any documents or consents necessary for such filings or
registrations, provided that any such filings or registrations
indicate joint ownership by the parties of eLender Solutions.
2. Development.
2.1 The Parties agree to conduct good faith negotiations to enter into a
joint development agreement for eLenderSolutions (a "Joint Development
Agreement").
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3. Delivery.
3.1 Each Party must deliver a copy of the version of eLenderSolutions in
their possession as of the date of this Agreement, including all
source code, object code and related documentation, to the other Party
within ten (10) days following a written request by the other Party
for such delivery.
4. Confidentiality.
4.1 eLenderSolutions and any related documentation are the confidential
and proprietary property of both RMSS and LSI and, subject to any
contrary position in a Joint Development Agreement as effective (if at
all), neither Party shall disclose such confidential and proprietary
information to any third party, other than to (a) third party
consultants and developers under written obligations of nondisclosure
comparable to those herein, (b) competent regulators, auditors or
attorneys of the receiving Party after having been given notice of its
confidential nature, or (c) pursuant to enforceable judicial process
or other legal compulsion.
5. Further Assurances.
5.1 Upon request of either Party, the other shall take such actions and
execute and deliver such documents as may be reasonably requested to
record, perfect, register, or otherwise memorialize the allocation of
title in intellectual property contemplated herein, at the expense of
the requesting Party.
6. Notices.
6.1 Except as otherwise provided under this Agreement, all notices,
demands or requests or other communications required or permitted to
be given or delivered under this Agreement shall be in writing and
shall be deemed to have been duly given when received by the
designated recipient. Written notice may be delivered in person or
sent via reputable courier service and addressed as set forth below:
If to RMSS: Rocky Mountain Support Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: President
with a copy to: Rocky Mountain Support Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: General Counsel
If to LSI: LSI Title Company
00000 Xxx Xxxxxx Xxx.
Xxxxxx, XX 00000
Attn: President
with a copy to: Fidelity National Information Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: General Counsel
6.2 The address to which such notices, demands, requests, elections or
other communications are to be given by either Party may be changed by
written notice given by such Party to the other Party pursuant to this
Section.
7. Miscellaneous.
7.1 This Agreement shall be governed by, and construed in accordance with,
the laws of California. The Parties hereby submit to the personal
jurisdiction of the state and federal courts in the State of
California for the purpose of adjudication of all matters arising
hereunder or relating hereto which may be the subject of litigation
between the Parties.
7.2 This Agreement constitutes the entire agreement between the Parties
pertaining to the subject matter hereof and supersedes and integrates
all prior and contemporaneous agreements, representations and
understandings of the Parties, oral and written, pertaining to the
subject matter hereof. No supplement, modification or amendment of
this Agreement shall be binding unless in a writing executed by both
Parties. Notwithstanding the foregoing, at any time prior to the Sale
of FMS or any offering and sale to the public of any shares or equity
securities of FNIS or any of its Subsidiaries pursuant to a
registration statement in the United States, this Agreement may not be
amended without the prior written consent of Xxxxxx X. Xxx Equity Fund
V, L.P. ("THL") and TPG Partners III, L.P. ("TPG") if such amendment
would affect any of Section 1, Section 2, Section 3 or Section 5, in
any manner materially adverse to the consolidated business activities
of the FNIS Group (defined below), taken as a whole, or FNIS Group's
costs of doing business, viewed on a consolidated basis, provided that
in no event shall any change to the schedules hereto require such
prior written consent unless such change would materially and
adversely affect in any manner FNIS Group's consolidated business
activities, taken as a whole, or FNIS Group's costs of doing business,
viewed on a consolidated basis, and provided, further, that in no
event shall the amendment provisions set forth in this Section 7.2 be
amended or modified without the consent of THL and TPG. THL and TPG
are intended third party beneficiaries of this Agreement solely with
respect to this Section 7.2. "FNIS Group" means FNIS, Subsidiaries of
FNIS, and each Person that FNIS directly or indirectly controls
(within the meaning of the Securities Act) immediately after the
Effective Date, and each other individual, a partnership, corporation,
limited liability company, association, joint stock company, trust,
joint venture, unincorporated organization, governmental entity or
department, agency, or political subdivision thereof that becomes an
Affiliate of FNIS after the Effective Date. "Sale of FNIS" means an
acquisition by any Person (within the meaning of Section 3(a)(9) of
the Securities and Exchange Act of 1934, as amended (the "Exchange
Act") and used in Sections 13(d) and 14(d) thereof ("Person")) of
Beneficial Ownership (within the meaning of Rule 13d-3 under the
Exchange Act) of 50% or more of either the then outstanding shares of
FNIS common stock or the combined voting power of the then outstanding
voting securities of FNIS entitled to vote generally in the election
of directors; excluding, however, the following:
(i) any acquisition directly from FNIS, other than an acquisition by
virtue of the exercise of a conversion privilege unless the security
being so converted was itself acquired directly from FNIS or (ii) any
acquisition by any employee benefit plan (or related trust) sponsored
or maintained by FNIS or a member of the FNIS Group.
7.3 Headings used herein are for the convenience of the Parties and shall
not be deemed part of the Agreement or used in its construction.
7.4 This Agreement may not be assigned by either of the Parties without
the prior written consent of the other Party. This Agreement is
binding on the successors and assigns of each Party.
7.5 Nothing herein is intended to create, and shall not be asserted or
construed to create, a joint venture, partnership or agency of any
nature between the Parties. Except as specifically set forth herein,
each Party assumes sole and full responsibility for its acts and the
acts of its directors, officers, employees, agents and affiliates.
Neither Party has any authority to make commitments or enter into
contracts on behalf of, bind, or otherwise obligate the other Party in
any manner whatsoever except as specifically set forth herein.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as
of the date first written above.
ROCKY MOUNTAIN SUPPORT SERVICES, INC. LSI TITLE COMPANY
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------- ------------------------------------
Print: Xxxxx X. Xxxxxxxx Print: Xxxxxxx X. Xxxxxxxx
Title: Vice President Title: Senior Vice President
Date: March 4, 2005 Date: March 4, 2005
