EXHIBIT 10.5
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (the "Agreement") is made and entered into this
27th day of January 2004, by and between Xxxxxxx Computer Associates, Inc., a
Pennsylvania corporation (the "Company"), Fidelity Information Services, Inc.,
an Arkansas corporation ("FIS") and their respective successors and assigns
(hereinafter collectively referred to as "Company") and Xxxxxxx X. Xxxxxxx, an
individual ("Employee").
R E C I T A L S
WHEREAS, Fidelity National Financial, Inc., a Delaware corporation ("FNF") and
the parent of FIS, and the Company have entered into that certain Merger
Agreement, dated as of January 27, 2004 (the "Merger Agreement"), pursuant to
which FIS will acquire all of the capital stock of the Company;
WHEREAS, a condition to close the transactions contemplated by the Merger
Agreement is the execution of this Agreement by and between the Company and
Employee; and
WHEREAS, the Company is in the business of developing and marketing scalable and
integrated software and services that provide banking, customer integration,
wealth management and outsourcing solutions for the banking industry ("Company's
Business").
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements set forth herein, the receipt and sufficiency of which are hereby
acknowledged, the Company and Employee, intending to be legally bound, hereby
agree as follows.
A G R E E M E N T
1. TERM. The term of this Agreement shall commence on the date the
transaction contemplated by the Merger Agreement is consummated (the
"Commencement Date").
2. COMPENSATION FOR NON-COMPETITION AND NON-SOLICITATION. If
Employee's employment with the Company terminates for any reason after the
Commencement Date, other than death or total and permanent disability, the
Company shall pay Employee payments for Employee's non-competition and
non-solicitation agreement set forth in Section 3, of $1,000,000, payable over
the two-year period following such termination of employment, in substantially
equal installments on a regular basis commencing with the payroll date next
following Employee's termination of employment, in accordance with the Company's
generally applicable payroll procedures and policies, as established from time
to time; provided that, upon 90 days' prior written notice to Employee, the
Company may cease making further installment payments to Employee, but only if
the Company, in accordance with Section 4.2, waives all of Employee's remaining
obligations under the Agreement, effective no later than the date installment
payments cease.
3. NON-COMPETITION AND NON-SOLICITATION. Unless Employee receives
the Company's advance written waiver as described in Section 4.2 below, if
Employee's employment with the Company terminates for any reason other than
death or total and permanent disability after the Commencement Date, for a
period of two (2) years after the termination of Employee's employment with the
Company, Employee shall not, either directly or indirectly through a
third party, either on Employee's own behalf or on behalf of another person,
engage in or assist others in the following activities:
3.1 Soliciting, recruiting or hiring to work, any person
employed by the Company or employed by the Company at any time during the twelve
(12) months immediately prior to Employee's termination of employment with the
Company;
3.2 Soliciting, diverting or appropriating any business
which competes with the Company's Business from any of the Company's Customers
or Prospective Customers with which Employee has had Material Contact during
Employee's employment with the Company. For the purposes of this provision,
"Material Contact" shall mean: (i) contact between Employee and each Customer or
Prospective Customer in an effort to further the Company's Business; or (ii)
supervision/management of contact between subordinate employees and each
Customer or Prospective Customer. For purposes of this provision, "Customers"
shall mean persons either currently doing business with the Company or to which
the Company provided services during the twelve (12) month period prior to
Employee's termination of employment from the Company, and "Prospective
Customers" shall mean specific persons from which the Company has actively
solicited business within the six (6) month period prior to Employee's
termination of employment from the Company.
3.3 Entering into, engaging in, being employed by, or
consulting for, any person which competes with the Company's Business, in a
capacity performing functions similar to those performed by Employee for the
Company in any country where the Company conducts business. This provision shall
not restrict Employee from owning a passive investment interest of less than 5%
of the outstanding equity ownership or shares in an organization represented by
securities publicly traded on a recognized national securities exchange or the
NASDAQ National Market System.
4. REMEDIES FOR BREACH OF RESTRICTIVE COVENANTS.
4.1 The parties to this Agreement recognize that irreparable
harm would result from any breach by Employee of Section 3 of this Agreement and
that monetary damages alone would not provide adequate relief for any such
breach. Accordingly, in addition to any other remedy which may be available to
the Company, if Employee breaches a restrictive covenant in this Agreement, the
parties acknowledge that injunctive relief in favor of the Company is proper.
4.2 A waiver of any of Employee's obligations under this
Agreement shall be ineffective unless it is set forth in writing and signed by
the Chairman of the Board of FIS.
4.3 If a court of competent jurisdiction determines that any
of the restrictions in this Agreement are overbroad, the parties agree that such
term shall be deemed modified to permit enforcement to the maximum extent
allowed by law.
4.4 If Employee breaches a covenant containing a specified
term, the term shall be extended by the period of time between Employee's
termination of employment with the Company and the date a court of competent
jurisdiction enters an injunction restraining further breach of the covenant.
5. SUCCESSORS. The Company's rights and obligations under this
Agreement shall inure to the benefit of and be binding upon the Company's
successors and assigns. Any
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successor or assignee of the Company is authorized to enforce the restrictive
covenants herein as if the name of such successor or assignee replaced the
Company throughout this Agreement. This Agreement shall inure to the benefit of
and be enforceable by Employee's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Employee should die while any amounts are still payable to Employee hereunder,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to Employee's devisee, legatee, or other
designee or, if there be no such designee, to Employee's estate.
6. MISCELLANEOUS.
6.1 GOVERNING LAW. This Agreement is made under and shall
be governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania.
6.2 ENTIRE AGREEMENT. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof and thereof and
supersedes all prior agreements and understandings with respect to such subject
matter (including any prior agreements between Employee and the Company), which
prior agreements are hereby null and void and of no further effect. The parties
hereto have made no agreements, representations or warranties relating to the
subject matter of this Agreement which are not set forth herein. The recitals
set forth herein are true and correct and hereby made a representations under
this Agreement.
6.3 WITHHOLDING TAXES. The Company may withhold from any
salary and benefits payable under this Agreement all federal, state, city or
other taxes or amounts as shall be required to be withheld pursuant to any law
or governmental regulation or ruling.
6.4 AMENDMENTS. No amendment or modification of this
Agreement shall be deemed effective unless made in writing signed by Employee
and by the Chairman of the Board of FIS.
6.5 NO WAIVER. No term or condition of this Agreement shall
be deemed to have been waived nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by
Employee or by the Chairman of the Board of FIS, as applicable. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
6.6 SEVERABILITY. Subject to Section 4.3, to the extent any
provision(s) of this Agreement is found to be invalid or unenforceable, the
remainder of such provision(s) and of this Agreement shall be unaffected and
shall continue in full force and effect.
6.7 COUNTERPART EXECUTION. This Agreement may be executed
by facsimile and in counterparts, each of which shall be deemed an original and
all of which when taken together shall constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year set forth above.
XXXXXXX X. XXXXXXX
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XXXXXXX COMPUTER ASSOCIATES, INC.
By:
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Its:
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FIDELITY INFORMATION SERVICES, INC.
By:
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Its:
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