EXHIBIT 10.47
ELENDER SOLUTIONS
SOFTWARE DEVELOPMENT
AND
PROPERTY ALLOCATION
AGREEMENT
This SOFTWARE DEVELOPMENT AND PROPERTY ALLOCATION AGREEMENT (the "Agreement") is
made and entered into as of March 4, 2005 (the "Effective Date"), by and between
ROCKY MOUNTAIN SUPPORT SERVICES, INC., an Arizona corporation ("RMSS") and LSI
TITLE COMPANY, a California corporation ("LSI").
WITNESSETH:
WHEREAS, pursuant to a Cross Conveyance and Joint Ownership Agreement between
the parties dated as of the Effective Date, RMSS and LSI are equal owners of an
undivided interest in an incomplete software package termed by the parties
'eLender Solutions' (the "Software");
WHEREAS, the parties agree that, subject to the terms herein, LSI shall pursue
completion of Release 1.0 of the Software and deliver to RMSS that version of
the Software which will perform in accordance with the specifications described
in Schedule A to this Agreement (the "Specifications"), and the related
documentation describing the Software and those Specifications ("Release 1.0 of
the Software");
WHEREAS, LSI is willing to undertake such development on the terms herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements and
covenants set forth herein, the parties agree as follows:
1. DEVELOPMENT & DELIVERY UNDERTAKING OF RELEASE 1.0 OF THE SOFTWARE
1.1 LSI shall continue to expend at least that level of effort and
resources used prior to the Effective Date, which shall at least
represent a reasonable level of effort and resources that are
necessary to enable LSI to perform and complete its obligations under
this Agreement, in development hereunder of Release 1.0 of the
Software with the goal of producing, no later than August 31, 2005,
Release 1.0 of the Software satisfying the Specifications in all
material respects together with basic documentation ("Documentation").
LSI reserves the right to propose changes to the specifications of
Release 1.0 of the Software to conform it to LSI's ongoing business
requirements. Upon RMSS' written approval, which approval shall not be
unreasonably withheld or delayed, the new specifications shall become
Specifications for purposes of this Agreement.
1.2 Designated representatives of LSI and RMSS shall meet monthly or as
otherwise agreed during the term hereof to discuss the status of the
Software development. LSI shall provide to RMSS, in a format mutually
agreed upon by the parties and
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within one (1) day of the monthly meeting, a written status report
describing Release 1.0 of the Software and Documentation development
progress.
1.3 Upon delivery of the proposed Release 1.0 of the Software and
Documentation to RMSS by LSI, RMSS shall have a period of forty-five
(45) days to confirm that the Software performs in accordance with its
Specifications and that the Documentation is reasonably complete as to
the major functions of the Software and substantially accurate. If
RMSS reasonably believes that the Software does not perform in
accordance with the Specifications, RMSS shall so inform LSI in a
detailed writing of the areas of nonconformance. LSI shall use
reasonable efforts to revise the Software to make it conform to the
Specifications, and RMSS shall cooperate with such efforts as
reasonably requested by LSI. Both parties will cooperate in good faith
to apply any agreed testing criteria for Release 1.0 of the Software.
Upon RMSS' confirmation that the Software has successfully performed
in accordance with the Specifications with no severity one and two
errors, which confirmation will not be unreasonably withheld or
delayed, the Software will be deemed "Accepted." Notwithstanding RMSS'
acceptance testing rights, LSI may use the Software in production to
support LSI's own business at any time.
1.4 LSI shall deliver to RMSS a copy of the current relevant work product,
including source code (in a format reasonably requested by RMSS), and
a copy of Documentation theretofore developed by LSI within seven
business days following completion of each release, which is presently
scheduled in each even calendar month. If LSI does not make such
delivery in an even calendar month, then RMSS may request such a
delivery upon written request to LSI. Regardless of the specific
calendar month involved or RMSS' request, the same duty of delivery
shall be due as of, and within seven business days following, the
close of business on August 31, 2005 and on the close of business on
the last day of the Term hereunder. The parties agree that the failure
of LSI to comply with this Section 1.7 will result in irreparable harm
to RMSS, which harm is not capable of full compensation by the payment
of monetary damages, and therefore, RMSS shall be entitled to seek the
granting of injunctive relief, including, but not limited to a
preliminary injunction, without the requirement of RMSS' posting of
bond to address any such failure by LSI.
2. DEVELOPMENT OF SOFTWARE BEYOND RELEASE 1.0 OF THE SOFTWARE
2.1 During the Term but after Acceptance of Release 1.0, LSI agrees to
continue to further develop and enhance the Software in a manner and
timeframe consistent with LSI's business objectives. Prior to August
31, 2005 and from time to time thereafter, the parties shall promptly
commence meeting, on a schedule to be agreed at that time, to discuss
the features, functions, and timing of any such new development. RMSS
shall have the right to provide input with respect to such new
development direction, but ultimately LSI shall have the final
decision on the scope and timing of any future development of the
Software. After LSI establishes the future development direction of
the Software, it shall provide
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RMSS with the applicable development specifications, at which time,
and unless otherwise agreed to by the parties, the terms and
conditions of Section 1 with respect to the Release 1.0 of the
Software will apply to this new development for the remainder of the
Term, as extended by mutual agreement of the parties.
2.2 In the event that the parties do not agree to continue their joint
development arrangement beyond the Term, LSI, for a two year period
thereafter and when requested by RMSS, agrees to offer and provide
access to RMSS to subsequent releases of LSI internally developed
Software on commercially reasonable financial and other terms.
3. TERM
3.1 Unless earlier terminated as contemplated herein or extended by the
mutual agreement of the parties, this Agreement shall continue until
March 31, 2006 (the "Term"). Neither termination nor expiration shall
terminate any obligations accrued hereunder prior to such time.
4. COMPENSATION
4.1 Through March 31, 2006, RMSS agrees to pay LSI five hundred thousand
($500,000) per month for LSI's development services. RMSS shall pay
LSI within thirty (30) days of receipt of invoice. The parties have
specified August 31, 2005 as a "Target Completion Date" for Release
1.0 of the Software.
4.2 Following Acceptance and for the duration of the Term, LSI shall offer
maintenance for the Software, as described in Schedule B hereto, for
no incremental fee. Any related professional services for custom
development, conversion, integration, hosting or training assistance
shall be performed pursuant to further agreement between the parties.
The parties intend that RMSS will utilize Release 1.0 of the Software
from within the LSI environment. If RMSS elects to maintain and use
Release 1.0 of the Software in an RMSS environment, RMSS shall bear
the costs of any third party hardware and software necessary to
establish and run the Software in RMSS' environment.
5. PRODUCTION BACK OFFICE
5.1 In the event that RMSS elects to utilize the rules engine component of
Release 1.0 of the Software in production, then RMSS agrees that it
will only utilize LSI services, and not the data and services of any
other third party, with respect to the use of such rules engine.
Similarly, if in connection with providing such services to RMSS, LSI
needs to obtain any "Starters" and "L&Vs" from Fidelity National
Financial, Inc. under that certain FNF Starters Repository Access
Agreement dated as of the Effective Date between Fidelity National
Financial, Inc. and Fidelity National Information Services, Inc. (the
"Starters Agreement"), then either RMSS agrees to reimburse LSI for
the fees paid to Fidelity National Financial, Inc. for access to the
Starters and L&V under the Starters Agreement,
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or to cause Fidelity National Financial, Inc. not to charge FNIS for
the fees to access the Starters and L&Vs under the Starters Agreement.
5.2 If RMSS desires to purchase production back office processing services
with respect to its use of the Software during the Term, it shall so
inform LSI and Provide LSI with the opportunity to make a commercial
proposal to provide such services.
6. TITLE IN DEVELOPMENTS
6.1 Each Party shall own an undivided half interest in the Software
(including Release 1.0 of the Software and any subsequent development
of the Software during the Term), and related Documentation (without a
duty of accounting) as it is further developed and enhanced hereunder
and as it exists upon termination of this Agreement, maintaining the
allocation of title established by the above-referenced Cross
Conveyance and Joint Ownership Agreement. During the Term, LSI hereby
makes a continuing assignment of an undivided one half interest in its
Software (including Release 1.0 of the Software and subsequent
development of the Software during the Term) and Documentation work
product hereunder including without limitation related know-how,
concepts, inventions, copyrights, source and object code. The
foregoing continuing assignment shall cease upon termination hereof
but the allocation of property subject to the assignment to such date
shall be unaffected thereby.
6.2 Subject to Section 7 herein, each party may use the work product
arising hereunder and owned by it in any manner it may choose,
including without limitation development of derivative works. Neither
party shall have to account to the other for any profits it may make
from exploitation of such work product within the terms of permitted
use hereunder.
6.3 From time to time, upon request of either party, at the expense of the
requesting party, the other party shall take such actions and execute
and deliver such documents, as the requesting party may reasonably
specify for purposes of recording, perfecting or otherwise
memorializing the foregoing allocation of property interest. This
provision shall survive the term of this Agreement.
7. LSI COVENANTS, REPRESENTATIONS AND WARRANTIES
7.1 LSI covenants, represents and warrants as follows:
7.1.1 the service to be provided to RMSS hereunder shall be performed
in a professional and workmanlike manner;
7.1.2 the Software development shall reflect solely the original work
product of LSI unless the inclusion of third-party source code
materials is embedded in the Software and is otherwise disclosed
in writing in advance to RMSS;
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7.1.3 If the services of a consultant or contractor are used by LSI in
connection with development of the Software, LSI shall secure all
necessary agreements to assure that (i) the title to its work
product vests in LSI and, pursuant hereto, in RMSS, and that (ii)
consultant or contractor is bound to the duties of
confidentiality reasonably similar to those described in this
Agreement;
7.1.4 the Software developed hereunder shall not infringe or
misappropriate any intellectual property rights, including
without limitation, copyrights, trademarks, trade secrets or
patents, or contractual rights of any third party;
7.1.5 (a) it has the power and corporate authority to enter into and
perform this Agreement, (b) its performance of this Agreement
does not and will not violate any governmental law, regulation,
rule or order, contract, charter or by-law; (c) it has received
no written notice of any third party claim or threat of a claim
alleging that any part of the Software infringes the rights of
any third party in any of the United States, and (d) each item of
Software developed hereunder shall be delivered free of
undisclosed trapdoors, Trojan horses, time bombs, time outs,
spyware, viruses or other code which, with the passage of time,
in the absence of action or upon a trigger, would interfere with
the normal use of, or access to, any file, datum or system.
7.2 THE EXPRESS WARRANTIES SET FORTH IN THIS PARAGRAPH ARE THE ONLY
WARRANTIES HEREUNDER; THERE ARE NO OTHER WARRANTIES, EXPRESS OR
IMPLIED, AND SPECIFICALLY THERE ARE NO IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THESE WARRANTIES
SURVIVE THE TERM OF THIS AGREEMENT.
8. CONFIDENTIALITY.
8.1 Proprietary Information (i) shall be deemed the confidential property
of the disclosing party (or the party for whom such data was collected
or processed, if any), (ii) shall be used solely for the purposes of
administering and otherwise implementing the terms of this Agreement
and any ancillary agreements, and (iii) shall be protected by the
receiving party in accordance with the terms of this Section 7. This
Section 7 shall survive the term.
8.2 Except as set forth in this Section, neither party shall disclose the
Proprietary Information of the other party in whole or in part,
including derivations, to any third party except as contemplated
herein. In no event shall source code for the Software or derivative
works be shared with any third party except under a perpetual duty of
nondisclosure. If the parties agree to a specific nondisclosure period
for a specific document, the disclosing party shall xxxx the document
with that nondisclosure period. In the absence of a specific period,
the duty of
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confidentiality for (a) object code versions of the Software and
related Documentation shall extend until the Software has been
Accepted or until termination of this Agreement and (b) with respect
to any other Proprietary Information shall extend for a period of (5)
five years from disclosure. Proprietary Information shall be held in
confidence by the receiving party and its employees, and shall be
disclosed to only those of the receiving party's employees and
professional advisors who have a need for it in connection with the
administration and implementation of this Agreement. Each party shall
use the same degree of care and afford the same protections to the
Proprietary Information of the other party as it uses and affords to
its own Proprietary Information.
8.3 Proprietary Information shall not be deemed proprietary and, subject
to the carve-out below, the receiving party shall have no obligation
of nondisclosure with respect to any such information which:
8.3.1 is or becomes publicly known through no wrongful act, fault or
negligence of the receiving party;
8.3.2 was disclosed to the receiving party by a third party that was
free of obligations of confidentiality to the party providing the
information;
8.3.3 is approved for release by written authorization of the
disclosing party;
8.3.4 was known to the receiving party prior to receipt of the
information; or
8.3.5 is publicly disclosed pursuant to a requirement or request of a
governmental agency, or disclosure is required by operation of
law.
8.4 The parties acknowledge that this Agreement contains confidential
information that may be considered proprietary by one or both of the
parties, and agree to limit distribution of this Agreement to those
employees of the parties with a need to know the contents of this
Agreement or as required by law or national stock exchange rule. In no
event may this Agreement be reproduced or copies shown to any third
parties (except counsel, auditors and professional advisors) without
the prior written consent of the other party, except as may be
necessary by reason of legal, accounting, tax or regulatory
requirements, in which event the respective parties agree to exercise
reasonable diligence in limiting such disclosure to the minimum
necessary under the particular circumstances.
8.4.1 In addition, each party shall give notice to the other party of
any demands to disclose or provide Proprietary Information of the
other party under or pursuant to lawful process prior to
disclosing or furnishing such Proprietary Information, and shall
cooperate in seeking reasonable protective arrangements.
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9. GOVERNING LAW; DISPUTE RESOLUTION
9.1 This Agreement shall be governed by, and construed in accordance with,
the laws of Florida. The parties hereby submit to the personal
jurisdiction of the state and federal courts in the State of Florida
for the purpose of adjudication of all matters arising hereunder or
relating hereto which may be the subject of litigation between the
parties.
9.2 If, prior to the termination of this Agreement, a dispute arises
between RMSS and LSI with respect to the terms and conditions of this
Agreement, or any subject matter governed by this Agreement, such
dispute shall be settled as set forth in Sections 8.3-8.7 of this
Section 8.
9.3 The parties shall escalate and negotiate, in good faith, any claim or
dispute that has not been satisfactorily resolved between the parties
at the level where the issue is discovered and has immediate impact.
Escalation shall be by written notice to the other party and to the
movant's president. Such president (or his or her designee) shall
attempt to resolve such a dispute within twenty (20) days of the
initial communication between them on the topic of the dispute (which
may be by notice). The location, format, frequency, duration and
termination of these discussions shall be left to the discretion of
the representatives involved. If such parties do not resolve the
underlying dispute within such twenty (20) day period, then either
party may notify the other in writing that the dispute is to be
elevated to binding arbitration.
9.4 All discussions and correspondence among the representatives for
purposes of these negotiations shall be treated as Confidential
Information developed for purposes of settlement, exempt from
discovery and production, which shall not be admissible in any
subsequent proceedings between the parties. Documents identified in or
provided with such communications, which are not prepared for purposes
of the negotiations, are not so exempted and may, if otherwise
admissible, be admitted in evidence in such subsequent proceeding.
9.5 Either party may request arbitration by giving the other party written
notice to such effect, which notice shall describe, in reasonable
detail, the nature of the dispute, controversy or claim. Such
arbitration shall be governed by the then current version of the
Commercial Arbitration Rules and Mediation Procedures of the American
Arbitration Association. The Arbitration will be conducted in
Jacksonville, Florida in front of one mutually agreed upon arbitrator.
9.6 Each party shall bear its own fees, costs and expenses of the
arbitration and its own legal expenses, attorneys' fees and costs of
all experts and witnesses. Unless the award provides otherwise, the
fees and expenses of the arbitration procedures, including the fees of
the arbitrator or arbitrators, will be shared equally by the parties.
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9.7 Any award rendered pursuant to such arbitration shall be final,
conclusive and binding upon the parties, and any judgment thereon may
be entered and enforced in any court of competent jurisdiction.
10. INDEMNIFICATION
10.1 Each party (in this context, the "Indemnitor") shall defend,
indemnify, and hold harmless the other, its officers, directors,
agents, and employees (collectively, "Indemnitees") against all costs,
expenses, and losses (including reasonable attorney fees and costs)
incurred by reason of claims of third parties against any of the
Indemnitees based on any Indemnitor use of, or related Indemnitor
representations or assurances with respect to, the Software to such
third party (or any derivative work developed by or for the
Indemnitor).
10.2 LSI shall defend, indemnify, and hold harmless RMSS against all costs,
expenses and losses (including reasonable attorneys' fees and costs)
incurred by reason of claims of third parties arising from the breach
of Section 6.1.2, 6.1.3, or 6.1.4 hereof.
11. INFRINGEMENTS BY THIRD PARTIES
11.1 The parties shall cooperate reasonably in the prosecution of
infringers of the Software. If the parties cannot agree to pursue a
purported infringer, a party wishing to pursue such infringer on its
own may do so at its own expense (and to its own benefit), and the
other party shall, to the extent necessary, assign its right to pursue
such a claim to the former party.
11.2 Notwithstanding the foregoing, if a party unilaterally pursuing a
purported infringer is the subject of a judgment invalidating or
derogating in any material way from the value of the Software to the
party having elected not to pursue such enforcement, the latter party
may initiate binding arbitration, pursuant to Section 8 hereof, to
determine the diminution in value to it of the Software in light of
the aforementioned judgment, and to recover from the party having
elected to pursue a claim, an equal amount.
12. TERMINATION AND LIMITATION OF LIABILITY
12.1 The parties may terminate this Agreement upon mutual agreement by
written consent.
12.2 If either party fails to perform any of its material obligations under
this Agreement and does not cure such failure within thirty (30) days
of receipt (or, if a cure could not reasonably be completed in thirty
days, but the other party is diligently pursuing a cure, then within
sixty (60) days) of notice of default, then the other party may
terminate this Agreement effective on the last day of the cure period.
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12.3 EACH PARTY SHALL BE LIABLE TO THE OTHER FOR ALL DIRECT DAMAGES ARISING
OUT OF OR RELATED TO ANY CLAIMS, ACTIONS, LOSSES, COSTS, DAMAGES AND
EXPENSES RELATED TO, IN CONNECTION WITH OR ARISING OUT OF THIS
AGREEMENT. SUBJECT TO SECTION 11.4 BUT NOTWITHSTANDING ANYTHING ELSE
IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL THE AGGREGATE
LIABILITY OF EITHER PARTY TO THE OTHER FOR DAMAGES, WHETHER ARISING IN
CONTRACT, TORT, EQUITY, NEGLIGENCE OR OTHERWISE EXCEED THE AMOUNT OF
FEES PAID BY RMSS TO LSI PURSUANT TO THIS AGREEMENT OVER THE TWELVE
MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH
LIABILITY.
12.4 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL,
PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER.
13. NOTICES
13.1 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: Fidelity National Financial, 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
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13.2 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.
14. MISCELLANEOUS
14.1 Waiver. No waiver by either party of any default shall be deemed as a
waiver of prior or subsequent default of the same of other provisions
of this agreement.
14.2 Severable Agreement. If any term, clause or provision hereof is held
invalid or unenforceable by a court of competent jurisdiction, such
invalidity shall not affect the validity or operation of any other
term, clause or provision and such invalid term, clause or provision
shall be deemed to be severed from this agreement.
14.3 Integrated Agreement. 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.
14.4 Headings. Headings used herein are for the convenience of the parties
and shall not be deemed part of the agreement or used in its
construction.
14.5 Assignment. This agreement may not be assigned by either of the
parties without the prior written consent of the other party; any
purported assignment in breach of the foregoing shall be without legal
effect to assign this agreement. This agreement is binding on the
successors and permitted assigns of each party.
14.6 Relationship of Parties. 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.
14.7 Amendment. Notwithstanding the foregoing, at any time prior to the
Sale of Fidelity National Information Services, Inc. ("FNIS"), (as
defined below) 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 Sections 1, 2, 3, 4, 5, 6, 9, 10 or 11 in any manner
materially adverse to FNIS Group's consolidated business activities,
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
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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 14.7 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 14.7. "Sale of Fidelity National Information Services,
Inc." 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. "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.
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
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