EXHIBIT 99.4
NON-COMPETITION AGREEMENT
NON-COMPETITION AGREEMENT, dated as of [ ], 2003 (the
"Agreement"), by and between ALLTEL CORPORATION, a Delaware corporation
("Seller"), and FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation
("Buyer").
RECITALS
WHEREAS, simultaneous with the execution of this Agreement,
and pursuant to the Stock Purchase Agreement, dated as of January 28, 2003, by
and between Seller and Buyer (the "Stock Purchase Agreement"), Buyer is, among
other things, purchasing from Seller, and Seller is selling to Buyer, on the
Closing Date, all of the stock of ALLTEL Information Services, Inc., an Arkansas
corporation (the "Company"); and
WHEREAS, as conditions to the closing of the Stock Purchase
Agreement, Seller and Buyer agreed to execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties agree as follows:
Section 1. Capitalized Term. Capitalized terms not otherwise defined
herein shall have the meaning ascribed to them in the Stock Purchase Agreement.
Section 2. Non-Competition. From the Closing Date until the expiration
of the "Restricted Period", as defined at the end of this Section 2, Seller
shall not on its own, and shall cause each of its Affiliates (each, a
"Restricted Party") not to, directly or indirectly, engage in the business of
providing to banks and other financial institutions that own or service (a) the
primary data base of record for residential mortgage, retail, consumer and
commercial loans, and deposits, (b) the primary system of record for accessing
such database, and (c) data processing services or software necessary to use
such data base and such system (the "Restricted Business"), provided, however,
that nothing in this Agreement or in the definition of Restricted Business
shall:
(i) prohibit or in any way restrict a Restricted Party from
acquiring any person, firm or corporation that engages in, or
has an Affiliate, subsidiary, segment or division engaged in,
the Restricted Business,
so long as the revenues of such person, firm or corporation
(including such Affiliate, subsidiary, segment or division, if
any) derived from the Restricted Business does not exceed
twenty percent 20% of such person's, firm's or corporation's
total revenues on a consolidated basis (including such
Affiliate, subsidiary, segment or division, if any, but
excluding any interest in a mutual fund or other ownership as
a passive investor) during the twelve month period ending on
the last day of the month immediately preceding such
acquisition; and
(ii) prohibit or otherwise limit any Restricted Party's ability to:
(A) engage in any business conducted by a Restricted Party on
or prior to the Closing Date that was not transferred to Buyer
under the Stock Purchase Agreement, even if such business
involves the primary data base of record for telecom accounts,
the primary system of record for accessing such database, and
data processing services or software necessary to use such
data base and such system; (B) otherwise engage in any
business involving telecom, wireline, wireless, long distance,
paging, output processing, and/or internet activities even if
such business involves the primary data base of record for
telecom accounts, the primary system of record for accessing
such database, and data processing services or software
necessary to use such data base and such system; (C) engage in
any business involving any of the Excluded Assets; (D) engage
in the Restricted Business to the extent necessary to perform
its duties under the Ancillary Agreements; (E) engage in the
Restricted Business in the event there shall occur (1) the
voluntary or involuntary liquidation, insolvency, bankruptcy,
dissolution or winding up of Buyer, the Company or any
Affiliate of Buyer then conducting the Restricted Business, or
(2) the acquisition by any person or group, directly or
indirectly, in one or a series of related transactions, of
fifty percent 50% or more of the voting securities of Seller
or of Buyer, the Company, or any Affiliate of Buyer then
conducting the Restricted Business, including, without
limitation, an acquisition involving the sale of voting
securities, a merger, a tender offer or exchange offer, a
reorganization, or any other business combination; or (F)
engage in any business engaged in by a "Division", as defined
in the last sentence of Section 11.2 of the Stock Purchase
Agreement, following its "Disposition", as defined in Section
11.2 of the Stock Purchase Agreement..
"Restricted Period" means the period beginning on the Closing Date and
ending on the earlier of (y) the two-year anniversary of the Closing
Date or (z) the occurrence of any event or transaction described in
subsection
(ii)(E)(1), (2), or (3) above.
Section 3. Confidential Information. During the Restricted Period,
Seller shall not on its own, and shall cause each of its Affiliates not to, use
for its or their benefit, or disclose to any person or entity, any trade secrets
or proprietary or confidential information of the Restricted Business or any
information with respect to customers, suppliers, employees of the Restricted
Business; provided, however, that the provisions of this Section 3 shall not be
applicable to any such information which: (a) is or becomes generally available
to the public other than as a result of the breach of this Agreement by a
Restricted Party; (b) is or becomes available to a Restricted Party on a
non-confidential basis, provided that, to Seller's actual knowledge, the source
of such information was not bound by a written confidentiality agreement or
other written obligation of confidentiality with respect to such information;
(c) is required to be disclosed in connection with the transactions contemplated
by the Ancillary Agreements; (d) was independently developed as a result of the
work carried out by an employee of a Restricted Party to whom no disclosure of
any confidential information has been made; (e) was used in an activity or
business that did not violate the non-competition provisions of Section 2 of
this Agreement; (f) constitutes an idea, concept, know-how or technique in
non-tangible form, which is retained in the memories of Restricted Party's
employees; or (g) is requested or required to be disclosed by applicable law,
subpoena, order, national stock exchange rule or other similar process, provided
that (i) Seller shall provide Buyer with prompt written notice, unless notice is
prohibited by law, subpoena, order, national stock exchange rule or other
similar process of any such request or requirement so that Buyer may seek a
protective order or other appropriate remedy, and (ii) in the event that such
protective order or other remedy is not obtained, Seller shall disclose only
minimum such information as is legally required.
Section 4. Non-Solicitation of Continuing Business Employees. During
the Restricted Period, Seller shall not on its own, and shall cause each of its
Affiliates not to, without the prior written consent of Buyer, directly or
indirectly, solicit any Continuing Business Employee, or induce such person to
terminate his or her employment with Buyer, the Company or the Company's
Subsidiaries; except, that Seller and its Affiliates shall not be prohibited
from conducting generalized solicitations for employees which solicitations are
not specifically targeted at the Continuing Business Employees through the use
of media advertisements, internet, professional search firms, or otherwise, and
shall not be prohibited from soliciting any Continuing Business Employee whose
employment is terminated by Buyer, the Company or the Company's Subsidiaries
subsequent to the Closing Date.
Section 5. Non-Solicitation of Seller's and its Affiliates Employees.
During the Restricted Period, Buyer shall not on its own, and shall cause each
of its
Affiliates not to, without the prior written consent of Seller, directly
or indirectly, solicit any employee or Seller its Affiliates, or induce such
person to terminate his or her employment with Seller or its Affiliates; except,
that Buyer and its Affiliates shall not be prohibited from conducting
generalized solicitations for employees which solicitations are not specifically
targeted at the employees of Seller or its Affiliates through the use of media
advertisements, internet, professional search firms or otherwise and shall not
be prohibited from soliciting any employees of Seller and its Affiliates whose
employment is terminated by Seller or its Affiliates subsequent to the Closing
Date.
Section 6. Specific Performance. Each party acknowledges and agrees
that if it were to breach any provision of this Agreement, any remedy at law
might be inadequate and that the other parties shall be entitled to seek
specific performance, and injunctive and other equitable relief to prevent or
restrain a breach of this Agreement or to enforce the provisions hereof.
Section 7. Severability. Each party intends that the provisions of this
Agreement be enforced under the laws applied in each jurisdiction in which
enforcement is sought. If any provision of this Agreement, or any part hereof,
shall be held by a court of competent jurisdiction to be invalid or
unenforceable, this Agreement shall be amended to revise the scope of such
provision to make it enforceable, if possible, or to delete such provision or
such part.
Section 8. Construction. The headings in this Agreement are for
convenience of reference only and shall not control or affect the meaning or
construction of any provisions hereof. This Agreement and the provisions
contained herein shall not be construed or interpreted for or against any party
because that party drafted or caused its legal representatives to draft any of
its provisions.
Section 9. Governing Law. The internal laws of the State of Delaware
shall govern the interpretation, validity and performance of the terms of this
Agreement.
Section 10. Binding Effect; Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, executors, successors and permitted assigns,
except, that this Agreement shall not be assigned, directly or indirectly, by a
party without the prior written consent of the other parties hereto.
Section 11. Waiver. Either party may waive compliance by the other
party of any of the provisions of this Agreement. Any waiver (express or
implied) of any default or breach of this Agreement shall not constitute a
waiver of any other or subsequent default or breach. Any waiver must be in
writing and must be signed by
the party waiving any provision hereof. In the event that any party fails to
asset a claim within one year after the action or omission giving rise to the
breach occurred, then it shall be deemed to have waived the breach and shall be
forever barred from asserting a claim in the future.
Section 12. No Third Party Beneficiaries. This Agreement is not
intended and shall not be deemed to confer upon or give any person except the
parties hereto and their respective successors and permitted assigns any remedy,
claim, liability, reimbursement, cause of action or other right under or by
reason of this Agreement.
Section 13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
Section 14. Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be made in accordance with
the provisions of Section 12.3 of the Stock Purchase Agreement.
Section 15. Entire Agreement. This Agreement (together with all
documents and instruments referred to herein) constitute the entire agreement
and supersede all other prior agreements and undertakings, both written and
oral, among the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of the parties hereto on the date first above
written.
ALLTEL CORPORATION
By: __________________________
Name:
Title:
FIDELITY NATIONAL FINANCIAL, INC.
By: __________________________
Name:
Title:
