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Exhibit 10.14
NOVATION
LICENSE AND SERVICES AGREEMENT
This License and Services Agreement (the "Agreement") is effective
as
of September 27, 2005 ("Effective Date") by
and between FIDELITY NATIONAL
INFORMATION SERVICES, INC., a Delaware
corporation ("FIS"), and FIDELITY
NATIONAL TITLE GROUP, INC, a Delaware
corporation ("FNT").
WHEREAS, FIS previously entered into a certain Stock Purchase
Agreement, dated as of December 23, 2004
(the "Stock Purchase Agreement"), with
Fidelity National Financial, Inc., a
Delaware corporation ("FNF"), pursuant to
which certain purchasers (the "Purchasers")
purchased from FIS 50,000,000 shares
of FIS' common stock, subject to the terms
and conditions of the Stock Purchase
Agreement; and
WHEREAS, a condition to the closing of the transactions
contemplated by
the Stock Purchase Agreement required that
FIS and FNF enter into certain
Intercompany Agreements (as defined in the
Stock Purchase Agreement), and that
the form and substance of such Intercompany
Agreements be satisfactory to the
Parties and the representatives of the
Purchasers; and
WHEREAS, FIS previously entered into a License and Services
Agreement
dated as of March 4, 2005 (the "FNF
Agreement") with FNF, as the parent company
of FNT and its subsidiaries, with respect
to the use of certain software and the
provision of certain services, as more
fully described herein; and
WHEREAS, pursuant to an Assignment and Assumption Agreement of
even
date herewith between FNF and FNT, FNT has
assumed, with the consent of FIS, all
of FNF's rights and obligations under the
FNF Agreement; and
WHEREAS, FIS and FNT wish to enter into a novation of the rights
and
obligations under the FNF Agreement, as
assumed by and assigned to FNT, so that
FNT is the clear party in interest with
respect to the license and services to
be provided by FIS, as more particularly
described herein;
NOW THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and
agreements set forth herein, and for
other good and valuable consideration, the
receipt and sufficiency of which are
hereby acknowledged, the Parties hereto
agree as follows:
1.
DEFINITIONS.
As used in this Agreement:
1.1.
"COMPETITOR" means a natural or legal person offering a
product that competes with the LSI Processes.
1.2.
"DAYS" means calendar days, unless otherwise specified.
1.3.
"DOCUMENTATION" means FIS' standard documentation describing
the LSI Processes.
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1.4.
"ESCALATION PROCEDURES" means the procedures set forth in
Section 10.2 of this Agreement.
1.5.
"GEOGRAPHIC AREA" means the counties listed on Exhibit B
attached hereto, as amended from time to time pursuant to
Section 6.2 hereof.
1.6.
"LSI PROCESSES" means those business processes indicated on
Exhibit A.
1.7.
"MODIFICATION" means any customization, enhancement,
modification or change made to the LSI Processes and
Documentation under this Agreement.
1.8.
"PERMITTED SUBSIDIARIES" has the meaning set forth in Section
3.1(a).
1.9.
"PROPRIETARY INFORMATION" means all information disclosed by
or for FNT or FIS to the other during the negotiations hereof
and/or learned by reason of the relationship established
hereunder or pursuant hereto, including, without limitation,
the LSI Processes, Documentation, Modifications and all
information, data and designs related thereto. Information
relating to each party's business, plans, affiliates or
customers shall also be deemed "Proprietary Information" for
purposes of the Agreement. "Proprietary Information" shall
also include all "non-public personal information" as defined
in Title V of the Gramm-Leach-Bliley Act (15 U.S.C. Section
6801, et seq.) and the implementing regulations thereunder
(collectively, the "GLB Act"), as the same may be amended from
time to time, that FIS receives from or at the direction of
FNT and that concerns any of FNT's "customers" and/or
"consumers" (as defined in the GLB Act).
1.10.
"SERVICES" has the meaning set forth in Section 4.1 of this
Agreement.
1.11.
"SUBSIDIARY" means, with respect to any party, any
corporation, partnership, company or other entity of which
such party controls or owns, directly or indirectly, more than
fifty percent (50%) of the stock or other equity interest
entitled to vote on the election of the members to the board
of directors or similar governing body.
1.12.
"TERM" has the meaning set forth in Section 6.1 of this
Agreement.
2. GRANT OF
LICENSE.
2.1.
GRANT. Subject to FNT's full payment, as due, of fees listed
in Exhibit D, FIS hereby grants to FNT for the benefit of the
Permitted Subsidiaries, and FNT for the benefit of the
Permitted Subsidiaries accepts from FIS, a nonexclusive,
license (except as otherwise provided for in Section 3 below)
for the Term of this Agreement to use the LSI Processes and
Documentation for properties with the Geographic Area, subject
to the restrictions and obligations set forth herein.
2.2.
DELIVERY. As requested from time to time, FIS agrees to
deliver the LSI Processes and the Documentation to FNT for the
benefit of the Permitted Subsidiaries.
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3. LICENSE
USE RESTRICTIONS.
3.1.
RESTRICTIONS ON LSI PROCESSES AND DOCUMENTATION.
(a) FNT may
not sell, lease, assign, transfer, distribute
or sublicense the LSI Processes or Documentation, to
any party, except that the LSI Processes and
Documentation may be used for the benefit of the
Subsidiaries of FNT indicated on Exhibit C hereof
(collectively, the "Permitted Subsidiaries").
(b) FNT will
not make copies, or similar versions of the
LSI Processes or Documentation or any part thereof
without the prior written consent of FIS, except in
the process of contemplated use, for administrative,
archival or disaster recovery backup, and as
expressly provided otherwise herein.
(c) FNT may
not provide copies of the LSI Processes or
Documentation to any person, firm, or corporation not
permitted hereunder except as permitted under
Sections 3.1 (a) and (b) above, and except as to
FNT's or a Permitted Subsidiary's non-Competitor
contractors or subcontractors who have executed
nondisclosure terms substantially similar to the
confidentiality terms herein.
(d) FNT shall
not allow any third party to use or have
access to the LSI Processes or Documentation for any
purpose without FIS' prior written consent except as
permitted under Sections 3.1(a) and (b) above, and
except as to FNT's or a Permitted Subsidiary's
non-Competitor contractors or subcontractors who have
executed nondisclosure terms substantially similar to
the confidentiality terms herein.
4.
SERVICES.
4.1.
PROVISION OF MANAGEMENT SERVICES. During the Term, and subject
to the terms and conditions hereof, FIS shall provide (or
cause to be provided) all of the services described in this
Section 4 to FNT for the benefit of the Permitted Subsidiaries
(individually and collectively, the "Services"). For the
avoidance of doubt, the Services are in addition to and not
included within the scope of services described in that
certain Master Information Technology Services Agreement of
even date herewith between Fidelity Information Services, Inc.
and FNT.
4.2.
IMPLEMENTATION AND OVERSIGHT OF THE LSI PROCESSES. FIS agrees
to oversee and provide advice to FNT for the benefit of the
Permitted Subsidiaries relating to the implementation of the
LSI processes including (x) all processes, personnel and
support functions of FNT for the benefit of the Permitted
Subsidiaries primarily relating to the implementation and use
of the LSI Processes, such oversight and advice shall, include
without limitation, the consulting services to FNT for the
benefit of the Permitted Subsidiaries relating to computer and
database systems, the creation of back-up/disaster recovery
procedures and sites, and implementation of appropriate
architecture. It is understood by the parties that the
Services to be provided hereunder include (but are not limited
to) infrastructure planning and
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implementation work by FIS for FNT for the benefit of the
Permitted Subsidiaries. It is anticipated that FIS may make
recommendations to FNT for the benefit of the Permitted
Subsidiaries from time to time as to improvements to the LSI
Processes or additional processes to supplement the LSI
Processes, which recommendation will be considered by FNT for
the benefit of the Permitted Subsidiaries.
4.3.
MAINTENANCE OF CURRENT EQUIPMENT AND SOFTWARE. During the term
of this Agreement, FIS shall be responsible for maintaining
the computer hardware and software systems utilized by FNT for
the benefit of the Permitted Subsidiaries in their
implementation and use of the LSI Processes, including,
without limitation, all telephone and communication equipment
(such as routers, servers, etc.) utilized by FNT for the
benefit of the
Permitted Subsidiaries (collectively, the "LSI
Process Equipment"). FNT for the benefit of the Permitted
Subsidiaries shall maintain the LSI Process Equipment in the
same condition (ordinary wear and tear excepted) and to the
same quality standards as was applicable to the LSI Process
Equipment on the effective date of this Agreement. Without
limiting the Services to be provided herein, FNT acknowledges
that, unless otherwise provided in this Agreement or agreed in
writing by the parties, FNT has no ownership right, title or
interest in the LSI Processes.
4.4.
SALES SUPPORT SERVICES AND IMPLEMENTATION OF LSI PROCESSES FOR
THIRD PARTY CUSTOMERS. During the Term of this Agreement and
consistent with permitted practices under applicable state
insurance law, FIS shall provide FNT for the benefit of the
Permitted Subsidiaries support in connection with marketing of
products and services of FNT for the benefit of the Permitted
Subsidiaries that require the use by FNT for the benefit of
the Permitted Subsidiaries of any of the LSI Processes or the
implementation or integration of the LSI Processes with third
party customers of FNT for the benefit of the Permitted
Subsidiaries.
5. FNT
OBLIGATIONS.
5.1.
EXCLUSIVE USE OF FIS SERVICES. With respect to the LSI
Processes that FIS will provide to FNT for the benefit of the
Permitted Subsidiaries as of the Effective Date, FNT for the
benefit of the Permitted Subsidiaries agrees to use
exclusively the LSI Processes and above Services in the
Geographic Areas at all times during the Term of this
Agreement, subject in all cases to the termination provisions
set forth in this Agreement.
5.2.
ACCESS TO TITLE PLANT. Following the date hereof, if FNT
builds or acquires a title plant with respect to a county
described in the Geographic Area, FNT agrees to provide access
to that plant to FIS on terms no less favorable to FIS than
contained in other title plant access agreements between FNT
and FIS, but in all cases upon commercially reasonable terms.
6. TERM;
TERMINATION.
6.1.
TERM. The term of the Agreement shall commence as of the date
hereof and continue until such time as FNT has built or
acquired a title plant with respect to all
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counties described in the Geographic Area and provided access
to such title plants to FIS on terms acceptable to FIS in all
such counties, or FIS has acquired on its own access to title
plants with respect to all counties described within the
Geographic Area (the "Term").
6.2.
PARTIAL COUNTY TERMINATION. Notwithstanding any other
provision of this Agreement, FIS may upon at least thirty days
prior written notice to FNT terminate the license and Services
with respect to one or more particular counties described in
the Geographic Area after FIS has acquired title plant access
from FNT or another third party on terms acceptable to FIS.
6.3.
TERMINATION. As applicable, the license and Services for a
particular county described in the Geographic Area or the
Agreement may be terminated prior to the expiration of the
Term as follows:
(a) the
license and Services for one or more particular
counties described in the Geographic Area or the
Agreement, may be terminated at any time by mutual
agreement of the parties hereto;
(b) the
license and Services for one or more particular
counties described in the Geographic Area may be
terminated at any time by FNT, if FIS breaches any
material warranty or fails to perform any material
obligation hereunder, in each case, with respect to
such county or counties affected, and such breach is
not remedied within 30 days after written notice
thereof to FIS that is in default, in which event the
obligation to provide the license and the Services
for such affected county or counties under this
Agreement shall terminate on the 20th business day
following the expiration of such 30-day cure period;
provided that if the breach or default is of a nature
that it cannot reasonably be cured within a 30-day
period and FIS is actively pursuing a cure in good
faith, then no default shall be deemed to have
occurred so long as the default is cured as promptly
as reasonably possible and in any event prior to the
first anniversary of the occurrence of such default;
(c) the
license and Services for one or more particular
counties described in the Geographic Area may be
terminated at any time by FIS, if FNT breaches any
material warranty or fails to perform any material
obligation owing hereunder, in each case, with
respect to the particular county or counties
affected, and such breach is not remedied within 30
days after written notice thereof to FNT, in which
event the obligation to provide the license and the
Services for such affected county or counties under
this Agreement shall terminate on the 20th business
day following the expiration of such 30-day cure
period; provided that if the breach or default is of
a nature that it cannot reasonably be cured within a
30-day period and FNT is actively pursuing a cure in
good faith, then no default shall be deemed to have
occurred so long as the default is cured as promptly
as reasonably possible and in any event prior to the
first anniversary of the occurrence of such default;
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(d) the
Agreement may be terminated at any time by FIS,
if FNT shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts
become due, or shall (1) apply for or consent to the
appointment of, or the taking of possession by, a
receiver, custodian, trustee, examiner or liquidator
of itself or of all or a substantial part of its
property or assets, (2) make a general assignment for
the benefit of its creditors, (3) commence a
voluntary case under the federal Bankruptcy Code, (4)
file a petition seeking to take advantage of any
other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement
or winding-up, or composition or readjustment of
debts, (5) fail to controvert in a timely and
appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary case
under the Bankruptcy Code or (6) take any company
action for the purpose of effecting any of the
foregoing, in which event the obligation to provide
the license and the Services under this Agreement
shall terminate immediately;
(e) the
Agreement may be terminated at any time by FNT,
if FIS shall admit in writing its inability to, or be
generally
unable to, pay its debts as such debts
become due, or shall (1) apply for or consent to the
appointment of, or the taking of possession by, a
receiver, custodian, trustee, examiner or liquidator
of itself or of all or a substantial part of its
property or assets, (2) make a general assignment for
the benefit of its creditors, (3) commence a
voluntary case under the federal Bankruptcy Code, (4)
file a petition seeking to take advantage of any
other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement
or winding-up, or composition or readjustment of
debts, (5) fail to controvert in a timely and
appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary case
under the Bankruptcy Code or (6) take any company
action for the purpose of effecting any of the
foregoing, in which event the obligation to provide
the license and the Services under this Agreement
shall terminate immediately;
(f) the
license and Services for one or more particular
counties described in the Geographic Area or the
Agreement may be terminated by FIS, upon 5 years'
prior written notice to FNT, which notice may not be
delivered prior to the 5th anniversary of the
Effective Date;
(g) the
license and Services for one or more particular
counties described in the Geographic Area or the
Agreement may be terminated by FNT, upon 5 years'
prior written notice to FIS, which notice may not be
delivered prior to the 5th anniversary of the
Effective Date;
(h) the
license and Services for one or more particular
counties described in the Geographic Area or the
Agreement may be terminated at any time by FNT if
there has been a change in control of FIS; it being
understood, that for purposes of this provision,
"change of control" means a reorganization, merger,
share (or LLC ownership interest) exchange or
consolidation, or sale or other disposition of more
than 50% of the ultimate ownership interests in,
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or all or substantially all of the assets or business
of, FIS, other than a transaction in which no person
or entity, other than FIS or an entity controlled by
FIS, will have beneficial ownership, directly or
indirectly, of 50% or more of the ownership interests
of FIS or of the power to vote in the election of
directors; or
(i) the
license and Services for one or more particular
counties described in the Geographic Area or the
Agreement may be terminated upon 6 months prior
written notice by FIS to FNT if there has been a
change in control of FNT; it being understood, that
for purposes of this provision, "change of control"
means a reorganization, merger, share exchange or
consolidation, or sale or other disposition of more
than 50% of the voting capital stock in, or all or
substantially all of the assets or business of, FNT,
other than a transaction in which no person or
entity, other than FNT or an entity controlled by
FNT, will have beneficial ownership, directly or
indirectly, of 50% or more of the voting capital
stock of FNT or of the power to vote the election of
directors.
6.4.
SURVIVAL. Notwithstanding anything to the contrary in this
Agreement, Section 7, 8, 9, 10, 11, and 16.10 shall survive
the expiration or termination of this Agreement
6.5.
PERMITTED SUBSIDIARY TERMINATION. A license enjoyed by a
Permitted Subsidiary of FNT shall terminate without further
formality upon such entity's ceasing to be a Subsidiary of
FNT.
7.
INTELLECTUAL PROPERTY RIGHTS.
7.1.
OWNERSHIP OF LSI PROCESSES AND DOCUMENTATION. From the date
the LSI Processes and Documentation is first disclosed to FNT,
and at all times thereafter, as between the parties, FIS
and/or its Subsidiaries shall be the sole and exclusive owners
of all right, title, and interest in and to the LSI Processes,
Documentation and all Modification, including, without
limitation, all intellectual property and other rights related
thereto. The parties acknowledge that this Agreement in no way
limits or restricts FIS and the FIS Subsidiaries from
developing or marketing on their own or for any third party in
the United States or any other country, the LSI Processes,
Documentation or Modifications, or any similar processes
(including, but not limited to, any modification, enhancement,
interface, upgrade, change and all software, source code,
blueprints, diagrams, flow charts, specifications, functional
descriptions or training materials relating thereto) without
payment of any compensation to FNT.
8.
CONFIDENTIALITY.
8.1.
CONFIDENTIALITY OBLIGATION. Proprietary Information (i) shall
be deemed the 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.
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8.2.
NON-DISCLOSURE COVENANT. 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. If the parties agree to a specific
nondisclosure period for a specific document, the disclosing
party shall mark the document with that nondisclosure period.
In the absence of a specific period, the duty of
confidentiality for LSI Processes and Documentation shall
extend in perpetuity. 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.
In no event shall FNT disclose FIS Proprietary Information to
a Competitor of FIS. 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 of a similar nature.
8.3.
EXCEPTIONS. 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:
(a) is or
becomes publicly known through no wrongful act,
fault or negligence of the receiving party;
(b) was
disclosed to the receiving party by a third party
that was free of obligations of confidentiality to
the party providing the information;
(c) is
approved for release by written authorization of
the disclosing party;
(d) was known to the
receiving party prior to receipt of
the information;
(e) was
independently developed by the receiving party
without access to or use of the Proprietary
Information of the d
