EXHIBIT 4
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (this "Agreement") is made and entered into this
8th day of September 2004, by and between InterCept, Inc., a Georgia corporation
("InterCept"), Fidelity Information Services, Inc., an Arkansas corporation
("FIS"), Fidelity National Financial, Inc., a Delaware corporation ("FNF"), and
their respective successors and assigns (InterCept, FIS, FNF and such successors
and assigns are hereinafter individually each a "Company" and collectively the
"Companies") and Xxxx Xxxxxxx, an individual ("Shareholder").
R E C I T A L S
WHEREAS, FNF and InterCept and certain subsidiaries of FNF propose to enter into
that certain Agreement and Plan of Merger, dated as of September 8, 2004 (the
"Merger Agreement"), pursuant to which a wholly-owned subsidiary of FNF will
merge with and into InterCept;
WHEREAS, Shareholder will receive a significant economic benefit from the
transactions contemplated by the Merger Agreement;
WHEREAS, without Shareholder's agreement to enter into and be bound by this
Agreement, FNF would not be willing to enter into the Merger Agreement;
WHEREAS, InterCept is in the business of developing and marketing the following
products and services: core data processing, check processing and imaging,
electronic funds transfer, debit card processing and data communications for the
banking industry (the "Company's Business"); and
WHEREAS, FNF and Shareholder recognize that the application of Shareholder's
experience, knowledge and abilities to the business of a competitor would cause
irreparable damage to the Companies and to the value sought to be obtained in
the Merger.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements set forth herein, the receipt and sufficiency of which
are hereby acknowledged, the Companies and Shareholder, 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
merger contemplated by the Merger Agreement is consummated (the "Commencement
Date") and end three years thereafter.
2. COMPENSATION. Shareholder has agreed to forego substantial business
opportunities under this Agreement. In order to compensate Shareholder for the
restrictions herein, Shareholder shall receive from FNF the sum of $2,100,000.00
payable as of the Commencement Date.
3. NON-COMPETITION AND NON-SOLICITATION. Unless Shareholder receives an
advance written waiver as described in Section 4.2 below, for a period ending
three years after the Commencement Date, Shareholder shall not, either directly
or indirectly through a third
party, either on Shareholder's own behalf or on behalf of another person or
entity, engage in or assist others in the following activities:
3.1 Soliciting, recruiting or hiring to work any person who is
employed at the time of such solicitation, recruitment or hiring by a Company or
any of its subsidiaries, or who was employed by a Company or any of its
subsidiaries at any time during the preceding 12 months, except (i) any person
whose employment has been terminated may be solicited after the date that is 90
days after the date of such termination to work in any business that does not
constitute the Company's Business and (ii) Xx. Xxxxxxx' assistant Xxxxx Xxxxxxx;
3.2 Soliciting, diverting or appropriating any business of any of
the types constituting the Company's Business from any of the Customers or
Prospective Customers with which Shareholder has had Material Contact during
Shareholder's employment with InterCept or any of its subsidiaries. For the
purposes of this provision, "Material Contact" shall mean: (i) contact between
Shareholder and such Customer or Prospective Customer in an effort to further
the Company's Business; or (ii) supervision/management of contact between
subordinate employees and such Customer or Prospective Customer. For purposes of
this provision, "Customers" shall mean persons or entities that are either
currently doing business with InterCept or any of its subsidiaries as of the
Commencement Date or to which InterCept or any of its subsidiaries provided
services during the 12 month period prior to the Commencement Date, and
"Prospective Customers" shall mean persons or entities from which InterCept or
any of its subsidiaries actively solicited business within the six month period
preceding the Commencement Date; and
3.3 Entering into or engaging in any activity which competes with
the Company's Business, in any country where a Company or any of its
subsidiaries conducts the Company's Business except as set forth on Exhibit "A"
hereto. In addition to the matters set forth on Exhibit "A," this provision
shall not restrict Shareholder 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 Shareholder 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 a
Company, if Shareholder breaches a restrictive covenant in this Agreement, the
parties acknowledge that injunctive relief in favor of the Companies is proper.
4.2 A waiver of any of Shareholder's obligations under this
Agreement shall be ineffective unless it is set forth in writing and signed by
the Chairman of the Board of FNF.
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 Shareholder breaches any of Shareholder's covenants in
Section 3 of this Agreement, the period following the Commencement Date during
which such covenant is in
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effect shall be extended by the period of time between Shareholder's breach and
the date a court of competent jurisdiction enters an injunction restraining
further breach of the covenant.
5. NO GROSS-UP PAYMENTS. The Companies and Shareholder acknowledge and
agree that they believe the payment made pursuant to this Agreement to be
reasonable compensation to Shareholder for complying with the restrictive
covenants contained herein after the Commencement Date and, even if it is
finally determined that any portion of the payment hereunder is a "parachute
payment" (as such term is defined in Section 280G of the Internal Revenue Code
of 1986, as amended (the "Code")), shall not be considered a "parachute payment"
for purposes of this Agreement or any other contract, agreement, arrangement or
plan of or with any of the Companies or any entity affiliated with any of the
companies, including but not limited to the Employment Agreement dated the 30th
day of January 1998 by and between the Shareholder and InterCept as such may be
amended or extended (the "Employment Agreement"). The payments hereunder shall
not be considered for purposes of determining the amount of the Gross-Up Payment
(as defined in the Employment Agreement), if any, under Section 4g of the
Employment Agreement (or any similar provision of any other contract, agreement,
arrangement or plan). For instance, should the total amount of payments and
benefits under the Employment Agreement or otherwise not result in a payment
pursuant to Section 4g thereof without the inclusion of the payments hereunder,
no Gross-Up Payment shall be due pursuant to such Section 4g. The Shareholder
acknowledges and agrees that this provision modifies Section 4g of the
Employment Agreement and such modification complies with the provisions of
Section 11 of the Employment Agreement.
6. SUCCESSORS. Each Company's rights and obligations under this
Agreement shall inure to the benefit of and be binding upon such Company's
successors and assigns. Any successor or assignee of a Company is authorized to
enforce the restrictive covenants herein as if the name of such successor or
assignee replaced such Company throughout this Agreement.
7. MISCELLANEOUS.
7.1 GOVERNING LAW. This Agreement is made under and shall be
governed by and construed in accordance with the laws of the State of Florida,
without giving effect to the conflicts of laws principles thereof.
7.2 ENTIRE AGREEMENT. This Agreement, together with any employment
agreements, change of control agreements or other agreements containing any
nonsolicitation or noncompetition covenants, entered into by the Shareholder
with any of the Companies prior to or after the Commencement Date, sets forth
the entire agreement of the parties relating to the subject matter hereof and
supersedes all prior agreements and understandings with respect to such subject
matter between Shareholder and any Company. This Agreement and such other
agreements set forth separate and independent noncompetition and nonsolicitation
covenants and shall not be deemed to limit each other in any way. Shareholder
agrees that all of the Shareholder's registration rights set forth in
Shareholder's Employment Agreement, dated as of January 30, 1998, shall
terminate as of the Commencement Date.
7.3 AMENDMENTS. No amendment or modification of this Agreement
shall be deemed effective unless made in writing signed by Shareholder and by
the Chairman of the Board of FNF.
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7.4 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
Shareholder or by the Chairman of the Board of FNF, 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.
7.5 SEVERABILITY. Subject to Section 4.3, to the extent any
provision of this Agreement is found to be invalid or unenforceable, the
remainder of such provision and of this Agreement shall be unaffected and shall
continue in full force and effect.
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.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
InterCept, Inc.
By: /s/ G. Xxxx Xxxxx
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Name: G. Xxxx Xxxxx
Its: President
Fidelity Information Services, Inc.
By: /s/ Xxxxxxx X. Xxxxx, XX
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Name: Xxxxxxx X. Xxxxx, XX
Its: Chairman and CEO
Fidelity National Financial, Inc.
By: /s/ Xxxxxxx X. Xxxxx, XX
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Name: Xxxxxxx X. Xxxxx, XX
Its: Chairman and CEO
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EXHIBIT A
The parties agree that Shareholder shall not be prohibited by Section 3
from maintaining the following business relationships during the term of this
Agreement.
- Director and Shareholder, Nexity Bank
- Director and (indirect) Shareholder, El Banco
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