EXHIBIT 99.2
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
This Non-competition and Non-solicitation Agreement (this "Agreement") is
dated as of ___________, 2005, by and among Fidelity National Financial, Inc., a
Delaware corporation ("Parent"), and Fidelity National Information Services,
Inc., a Delaware corporation (the "Company"). Any terms not otherwise defined
herein shall have the meanings ascribed to them in that certain Stock Purchase
Agreement dated as of December [__], 2004 (the "Purchase Agreement"), by and
among Parent, the Company and the purchasers named therein (the "Purchasers").
WITNESSETH:
WHEREAS, pursuant to the terms of the Purchase Agreement, the
Purchasers are purchasing from the Company, and the Company is selling to the
Purchasers, common stock of the Company initially representing 25% of its
outstanding capital stock;
WHEREAS, following consummation of the transactions contemplated by
the Purchase Agreement, Parent shall own 75% of the Company's outstanding
capital stock, and will receive substantial benefits in connection with the
transactions contemplated by the Purchase Agreement; and
WHEREAS, the execution and delivery of this Agreement is a condition
precedent to the Purchasers' closing the transactions contemplated by the
Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Non-Competition.
(a) For a period (the "Term") commencing on the date hereof and continuing
until the first anniversary of the date (the "Separation Date") Parent ceases to
beneficially own at least a majority of the outstanding capital stock of the
Company, Parent agrees that it shall not, and shall cause its Affiliates (other
than the Company or its Subsidiaries) not to, directly or indirectly, own,
manage, operate, control or participate in the ownership, management, operation
or control, other than their ownership and control of the Company and its
Subsidiaries, any business, whether in corporate, proprietorship or partnership
form or otherwise, engaged in a Competitive Business (defined below).
(b) For purposes hereof, "Competitive Business" shall mean:
(i) providing (A) retail bank core processing systems, (B)
customer channel-solutions (online-retail and commercial, ATM,
branch, teller and call center), (C) consumer lending and
servicing systems,
(D) commercial lending and servicing systems, including
mortgage loan origination and servicing systems, and (E) data
center outsourcing services to credit unions, community banks,
thrifts, data centers, banks and other financial institutions;
and
(ii) providing real estate tax, credit, flood, default and
appraisal services and multiple listing software and services
to financial institutions and loan servicers
(c) Notwithstanding the foregoing, nothing contained in this Agreement
shall prevent Parent from:
(i) Engaging in any of the activities set forth on Schedule 1
hereto ("Permitted Competitive Business Activity");
(ii) Acquiring control of a business which is engaged in a
Competitive Business (an "Acquisition") and continuing to
conduct such Competitive Business if, and only if, Parent
presents the opportunity to make the Investment to the Board
of Directors of the Company (the "Board") and (A) Parent's
designees on the Board have voted in favor of the Company or
one of its Subsidiaries making such Investment, and (B) the
Purchasers' designees on the Board have voted against the
Company or any of its Subsidiaries making such Investment;
provided that, Parent has consummated the Investment on the
same terms presented to the Board. Notwithstanding the
foregoing, nothing contained in this clause (c)(ii) shall
permit Parent to conduct any activities that constitute a
Competitive Business through such acquired entity if such type
of activities were not conducted by the acquired entity at the
time of the Acquisition;
(iii) Acquiring control of a business (A) which earns less than 10%
of its annual revenues from engaging in a Competitive Business
("Minor Competitive Activity"); provided, however that such
Minor Competitive Activity shall comprise less than 10% of the
annual revenues of the acquired business during the entire
Term hereof, or (B) which earns more than 10%, but less than
50% of its annual revenues from engaging in a Competitive
Business ("Divestible Competitive Activity"); provided,
however that such Divestible Competitive Activity shall be
offered to the Company within thirty (30) days after closing
such acquisition at a price equal to that paid by the Parent
or, if such price was not separately determined, at fair
market value as determined by mutual consent of the parties or
a mutually agreed upon appraisal process; or
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(iv) being a passive owner of less than five percent (5%) of the
outstanding stock of a corporation which is publicly traded
and is engaged in a Competitive Business.
2. Severability. Each provision herein shall be treated as a separate and
independent clause, and the unenforceability of any one clause shall in no way
impair the enforceability of any other clauses of the Agreement. If one or more
of the provisions contained herein shall for any reason be held to be
excessively broad in scope, activity, subject or otherwise so as to be
unenforceable at law, such provision(s) shall be construed by the appropriate
judicial body by limiting or reducing it (or them) so as to be enforceable to
the maximum extent under the applicable law.
3. Amendments; Waiver. Any amendment to or modification of this Agreement, or
any waiver of any provision hereof, shall be in writing and signed by the
Company and Parent, and shall be approved by the Purchasers. Any waiver by the
Company of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach of such provision or any other
provision hereof.
4. Assignment; Successors. The Company shall have the right to assign this
Agreement to its successors and assigns. All covenants and agreements hereunder
shall be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns.
5. Equitable Relief. Parent agrees that a breach of this Agreement will result
in irreparable harm to the Company and that money damages would not be a
sufficient remedy for any breach of this Agreement, and that the Company shall
be entitled, in addition to all other remedies available to it, to seek
equitable relief, including injunction and specific performance, without the
necessity of posting a bond or other security as a result of a breach or
threatened breach of this Agreement.
6. Governing Law; Forum Selection Clause. This Agreement and any claims arising
out of this Agreement (or any other claims arising out of the relationship
between the parties) shall be governed by and construed in accordance with the
laws of the State of New York and shall in all respects be interpreted, enforced
and governed under the internal and domestic laws of such state, without giving
effect to the principles of conflicts of laws of such state. Any claims or legal
actions by one party against the other may be commenced and maintained in any
state or federal court located in such state, and the parties hereby submit to
the jurisdiction and venue of any such court.
7. Enforcement. The Purchasers shall have the right to enforce the provisions of
this Agreement on behalf of the Company, including the right to commence legal
proceedings.
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IN WITNESS WHEREOF, the undersigned has executed this Agreement as a sealed
instrument as of the date first above written.
COMPANY:
FIDELITY NATIONAL
INFORMATION SERVICES, INC.
By:_______________________________________
Name:_____________________________________
Title:____________________________________
PARENT:
FIDELITY NATIONAL FINANCIAL, INC.
By:_______________________________________
Name:_____________________________________
Title:____________________________________
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SCHEDULE 1
Title insurance underwriting
Title insurance agency services
Escrow and closing services
Title insurance on foreclosure transactions
Sales of title information
Title plant maintenance
Title and escrow system software development and sales of software
Title recording services
Real estate information sold in connection with providing title and escrow
services
Relocation services
Real estate appraisal services(1)
Property inspection services
Real estate default and foreclosure services(1)
Loan processing and fulfillment services conducted by FNF Canada for banks in
Canada.(1)
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(1) Such activities are Permitted Competitive Business Activities only if and
so long as they do not constitute a material amount of Parent's revenues.
