EXHIBIT 99.5
MANAGEMENT AGREEMENT
This Management Agreement (this "AGREEMENT") is entered into as of the ___
day of ________, 2005, by and between Fidelity National Information Services,
Inc., a Delaware corporation (the "COMPANY") and TPG GenPar IV, L.P., a Delaware
limited partnership (the "SPONSOR").
WHEREAS, certain affiliates of the Sponsor (the "INVESTORS"),
together with other co-investors, have acquired shares of the capital stock of
the Company (the "INVESTMENT") pursuant to that certain Stock Purchase
Agreement, by and among the Company, the Investors and the persons listed on the
signatures pages thereto (the "PURCHASE AGREEMENT").
WHEREAS, the Sponsor has staff specifically skilled in corporate
finance, strategic corporate planning, and other management skills and advisory
services.
WHEREAS, in connection with the Investment and related transactions,
the Sponsor provided advice and analysis including advice with respect to debt
facilities and arrangements, and related arrangements and other matters
(collectively, "ADVISORY SERVICES").
WHEREAS, the Company will require the Sponsor's special skills
and management advisory services in connection with its business operations and
execution of its strategic plan.
WHEREAS, the Sponsor is willing to provide such skills and services
to the Company.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Services. The Sponsor hereby agrees that if, during the term of this
Agreement (the "TERM"), the Company reasonably and specifically requests that
the Sponsor provide the services set forth below and, in the case of the
services described in subsections (a) and (b), the Sponsor agrees to provide
such services, the Sponsor or one of its affiliates will provide the following
services to the Company and its subsidiaries:
(a) advice in connection with the negotiation and consummation of
agreements, contracts, documents and instruments related to the Company's
finances or relationships with banks or other financial institutions;
(b) advice with respect to the development and implementation of
strategies for improving the operating, marketing and financial performance of
the Company, and other senior management matters related to the business,
administration and policies of the Company; and
(c) review and comment on the descriptive memorandums of potential
acquisition opportunities for the Company.
The Sponsor shall have no obligation to the Company as to the method or
timing of services rendered hereunder (provided that services shall be rendered
in a reasonably timely manner), and the Company shall not have any right to
dictate or direct the details of the performance of services by the Sponsor
rendered hereunder.
The parties hereto expressly acknowledge that the services to be performed
hereunder by the Sponsor shall not include investment banking or other financial
advisory services rendered by Sponsor or its affiliates to the Company in
connection with any specific acquisition, divestiture, refinancing or
recapitalization by the Company or any of its subsidiaries for which the Sponsor
may be entitled to receive additional compensation by mutual agreement of the
Company or its subsidiary and the Sponsor. This Agreement shall in no way
prohibit the Sponsor or any of its affiliates or any of their respective
partners (both general and limited), members (both managing and otherwise),
officers, directors, employees, agents or representatives from engaging in other
activities, whether or not competitive with any business of the Company of any
of its affiliates.
2. Payment of Fees. In exchange for the Advisory Services and the
Sponsor's agreement to provide the services described in clauses (a), (b) or (c)
of Section 1, the Company hereby agrees to pay to the Sponsor (or its
designee(s)) the following fees:
(a) a transaction fee in connection with the transactions
contemplated in the Purchase Agreement payable at the Closing (as defined in the
Purchase Agreement) of $12,500,000; and
(b) an annual management fee (the "FEE"), payable in advance in
semi-annual installments beginning at the Closing (as described below) and
thereafter on the first business day of January and July of each year in an
amount per year equal to $1,250,000.
Each payment made pursuant to this Section 2 shall be paid by wire transfer of
immediately available funds to the accounts specified on Exhibit A attached
hereto, or to such other account(s) as the Sponsor may specify in writing to the
Company. The first installment of the Fee shall be payable at the Closing. All
references to "per annum" or "annual" herein refer to the fiscal year of the
Company. The initial payment of the annual Fee (for the period from the Closing
Date to July 1, 2005) shall be prorated to reflect the portion of the current
fiscal year which elapses prior to the Closing.
3. Term. This Agreement shall be effective as of the date hereof and shall
continue in full force and effect until the earlier of (i) five (5) years from
the date hereof, or (ii) the consummation of a public offering of equity
securities of the Company. Upon any termination of this Agreement, each of (a)
the obligations of the Company under Section 4 below, (b) any and all owed and
unpaid obligations of the Company under Section 2 above, and (c) the provisions
of Section 7, shall survive any termination of this Agreement to the maximum
extent permitted under applicable law.
4. Expenses; Indemnification.
(a) Expenses. In addition to the fees set forth in Section 2 hereof, the
Company agrees to pay on demand all costs and expenses incurred by the Sponsor
and its affiliates or any of them in connection with this Agreement and in
connection with performing services hereunder including
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but not limited to air travel charged at charter equivalent rates, legal,
consulting, out of pocket and other expenses, including but not limited to the
fees and disbursements of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the
Sponsor, and any other consultants or advisors retained by the Sponsor or its
counsel arising in connection therewith, and the performance of services
hereunder (including, without limitation, fees and expenses of independent
professionals, research, transportation and per diem costs).
(b) Indemnity and Liability. The Company will indemnify and hold harmless
each of the Sponsor, its affiliates and their respective partners (both general
and limited), members (both managing and otherwise), officers, directors,
employees, agents and representatives (each such Person being an "Indemnified
Party") from and against any and all losses, claims, damages and liabilities,
whether joint or several, expenses of any nature (including reasonable
attorneys' fees and disbursements), judgments, fines, settlements and other
amounts arising from any and all claims, demands, actions, suits or proceedings,
whether civil, criminal, administrative, arbitral or investigative, in which an
Indemnified Party was involved or may be involved, or threatened to be involved,
as a party or otherwise (the "Liabilities"), related to, arising out of or in
connection with the advisory and consulting services contemplated by this
Agreement or the engagement of the Sponsors pursuant to, and the performance by
the Sponsors of the services contemplated by, this Agreement, and any other
action taken by an Indemnified Party on behalf of the Company, whether or not
pending or threatened, and any other action taken by an Indemnified Party on
behalf of the Company, whether or not resulting in any liability and whether or
not such action, claim, suit, investigation or proceeding is initiated or
brought by the Company. The Company will reimburse any Indemnified Party for all
reasonable costs and expenses (including reasonable attorneys' fees and
expenses) as they are incurred in connection with investigating, preparing,
pursuing, defending or assisting in the defense of any action, claim, suit,
investigation or proceeding for which the Indemnified Party would be entitled to
indemnification under the terms of the previous sentence, or any action or
proceeding arising therefrom, whether or not such Indemnified Party is a party
thereto, provided that, subject to the following sentence, the Company shall be
entitled to assume the defense thereof at its own expense, with counsel
satisfactory to such Indemnified Party in its reasonable judgment. Any
Indemnified Party may, at its own expense, retain separate counsel to
participate in such defense, and in any action, claim, suit, investigation or
proceeding in which both the Company and/or one or more of its subsidiaries, on
the one hand, and an Indemnified Party, on the other hand, is, or is reasonably
likely to become, a party, such Indemnified Party shall have the right to employ
one separate counsel at the expense of the Company and to control its own
defense of such action, claim, suit, investigation or proceeding if, in the
reasonable opinion of counsel to such Indemnified Party, a conflict or potential
conflict exists between the Company, on the one hand, and such Indemnified
Party, on the other hand, that would make such separate representation
advisable. The Company agrees that it will not, without the prior written
consent of the applicable Indemnified Party, settle, compromise or consent to
the entry of any judgment in any pending or threatened claim, suit,
investigation, action or proceeding relating to the matters contemplated hereby
(if any Indemnified Party is a party thereto or has been threatened to be made a
party thereto) unless such settlement, compromise or consent includes an
unconditional release of the applicable Indemnified Party and each other
Indemnified Party from all liability arising or that may arise out of such
claim, suit, investigation, action or proceeding. Provided the Company is not in
breach of its indemnification obligations hereunder, no Indemnified Party shall
settle or compromise any claim subject to indemnification hereunder without the
consent of the Company. The Company will not be liable under the foregoing
indemnification provision with respect to any
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Indemnified Party, to the extent that any loss, claim, damage, liability, cost
or expense is determined by a court, in a final judgment from which no further
appeal may be taken, to have resulted primarily from the gross negligence or
willful misconduct by an Indemnified Party. If an Indemnified Party is
reimbursed hereunder for any expenses, such reimbursement of expenses shall be
refunded to the extent it is finally judicially determined that the Liabilities
in question resulted primarily from the gross negligence or willful misconduct
of such Indemnified Party. As used herein, the term "Person" shall be construed
in the broadest sense and means and includes a natural person, a partnership, a
corporation, an association, a joint stock company, a limited liability company,
a trust, a joint venture, an unincorporated organization and any other entity
and any federal, state, municipal, foreign or other government, governmental
department, commission, board, bureau, agency or instrumentality, or any private
or public court or tribunal.
The Company agrees that if any indemnification sought by any Indemnified
Party pursuant to this Section 4 is unavailable for any reason or is
insufficient to hold the Indemnified Party harmless against any Liabilities
referred to herein, then the Company shall contribute to the Liabilities for
which such indemnification is held unavailable or insufficient in such
proportion as is appropriate to reflect the relative benefits received (or
anticipated to be received) by the Company, on the one hand, and the Indemnified
Party, on the other hand, in connection with the transactions which gave rise to
such Liabilities or, if such allocation is not permitted by applicable law, not
only such relative benefits but also the relative faults of the Company, on the
one hand, and the Indemnified Party, on the other hand, as well as any other
equitable considerations, subject to the limitation that in any event the
aggregate contribution by the Indemnified Parties to all Liabilities with
respect to which contribution is available hereunder shall not exceed the fees
actually received by the Sponsor in connection with the transaction which gave
rise to such Liabilities (excluding any amounts paid as reimbursement of
expenses).
5. Assignment, etc. Except as provided below, no party hereto shall have
the right to assign this Agreement. The Sponsor acknowledges that its services
under this Agreement are unique. Accordingly, any purported assignment by the
Sponsor (other than as specifically permitted below) shall be void.
Notwithstanding the foregoing, the Sponsor may assign all or part of its rights
and obligations hereunder to any affiliate of the Sponsor which provides
services similar to those called for by this Agreement.
6. Amendments and Waivers. No amendment or waiver of any term, provision
or condition of this Agreement shall be effective, unless in writing and
executed by the Sponsor and the Company. No waiver on any one occasion shall
extend to or effect or be construed as a waiver of any right or remedy on any
future occasion. No course of dealing of any Person nor any delay or omission in
exercising any right or remedy shall constitute an amendment of this Agreement
or a waiver of any right or remedy of any party hereto.
7. Miscellaneous.
(a) Choice of Law. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of the State of New York without
giving effect to any choice or conflict of law provision or rule that would
cause the application of the domestic substantive laws of any other
jurisdiction.
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(b) Consent to Jurisdiction. Each of the parties agrees that all actions,
suits or proceedings arising out of or based upon this Agreement or the subject
matter hereof shall be brought and maintained exclusively in the federal and
state courts of the State of New York. Each of the parties hereto by execution
hereof (i) hereby irrevocably submits to the jurisdiction of the federal and
state courts in the State of New York for the purpose of any action, suit or
proceeding arising out of or based upon this Agreement or the subject matter
hereof and (ii) hereby waives to the extent not prohibited by applicable law,
and agrees not to assert, by way of motion, as a defense or otherwise, in any
such action, suit or proceeding, any claim that it is not subject personally to
the jurisdiction of the above-named courts, that it is immune from
extraterritorial injunctive relief or other injunctive relief, that its property
is exempt or immune from attachment or execution, that any such action, suit or
proceeding may not be brought or maintained in one of the above-named courts,
that any such action, suit or proceeding brought or maintained in one of the
above-named courts should be dismissed on grounds of forum non conveniens,
should be transferred to any court other than one of the above-named courts,
should be stayed by virtue of the pendency of any other action, suit or
proceeding in any court other than one of the above-named courts, or that this
Agreement or the subject matter hereof may not be enforced in or by any of the
above-named courts. Each of the parties hereto hereby consents to service of
process in any such suit, action or proceeding in any manner permitted by the
laws of the State of New York, agrees that service of process by registered or
certified mail, return receipt requested, at the address specified in or
pursuant to Section 11 is reasonably calculated to give actual notice and waives
and agrees not to assert by way of motion, as a defense or otherwise, in any
such action, suit or proceeding any claim that service of process made in
accordance with Section 11 does not constitute good and sufficient service of
process. The provisions of this Section 8(b) shall not restrict the ability of
any party to enforce in any court any judgment obtained in a federal or state
court of the State of New York.
(c) Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO HEREBY WAIVES, AND COVENANTS
THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT, OR OTHERWISE), ANY
RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND,
CAUSE OF ACTION, ACTION, SUIT OR PROCEEDING ARISING OUT OF OR BASED UPON THIS
AGREEMENT OR THE SUBJECT HEREOF, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE. Each of the parties hereto
acknowledges that it has been informed by each other party that the provisions
of this Section 7(c) constitute a material inducement upon which such party is
relying and will rely in entering into this Agreement and the transactions
contemplated hereby. Any of the parties hereto may file an original counterpart
or a copy of this Agreement with any court as written evidence of the consent of
each of the parties hereto to the waiver of its right to trial by jury.
8. Independent Contractor. The parties agree and understand that the
Sponsor is and shall act as an independent contractor of the Company in the
performance of its duties hereunder. The Sponsor is not, and in the performance
of its duties hereunder will not hold itself out as, an employee, agent or
partner of the Company.
9. Merger/Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes any prior communication or agreement with respect thereto.
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10. Notice. All notices, demands, and communications of any kind which any
party may require or desire to serve upon any other party under this Agreement
shall be in writing and shall be served upon such other party and such other
party's copied persons as specified below by personal delivery to the address
set forth for it below or to such other address as such party shall have
specified by notice to each other party or by mailing a copy thereof by
certified or registered mail, or by Federal Express or any other reputable
overnight courier service, postage prepaid, with return receipt requested,
addressed to such party and copied persons at such addresses. In the case of
service by personal delivery, it shall be deemed complete on the first business
day after the date of actual delivery to such address. In case of service by
mail or by overnight courier, it shall be deemed complete, whether or not
received, on the third day after the date of mailing as shown by the registered
or certified mail receipt or courier service receipt. Notwithstanding the
foregoing, notice to any party or copied Person of change of address shall be
deemed complete only upon actual receipt by an officer or agent of such party or
copied person.
If to the Company:
Fidelity National Information Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
If to the Sponsor:
TPG GenPar IV, L.P.
c/o Texas Pacific Group
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
with a copy to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention : ▇▇▇▇▇▇▇ ▇▇▇▇
Fax : (▇▇▇) ▇▇▇-▇▇▇▇
11. Severability. If in any judicial or arbitral proceedings a court or
arbitrator shall refuse to enforce any provision of this Agreement, then such
unenforceable provision shall be deemed eliminated from this Agreement for the
purpose of such proceedings to the extent necessary to permit the remaining
provisions to be enforced. To the full extent, however, that the provisions of
any applicable law may be waived, they are hereby waived to the end that this
Agreement be, deemed to be a valid and binding agreement enforceable in
accordance with its terms, and in the event that any provision hereof shall be
found to be invalid or unenforceable, such provision shall
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be construed by limiting it so as to be valid and enforceable to the maximum
extent consistent with and possible under applicable law.
12. Counterparts. This Agreement may be executed in any number of
counterparts and by each of the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
together shall constitute one and the same agreement.
13. Headings. All descriptive headings in this Agreement are inserted for
convenience only and shall be disregarded in construing or applying any
provision of this Agreement.
14. Prevailing Party. If any legal action or other proceedings is brought
for a breach of this Agreement or any of the warranties herein, the prevailing
party shall be entitled to recover its reasonable attorneys' fees and other
costs incurred in bringing such action or proceeding, in addition to any other
relief to which such party may be entitled.
* * * * *
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed on its behalf as an instrument under seal as of the date first above
written by its officer or representative thereunto duly authorized.
FIDELITY NATIONAL INFORMATION
SERVICES, INC.
By: __________________________
Name:
Title:
TPG GenPar IV, L.P.
By: TPG Advisors IV, Inc., its general partner
By: __________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
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EXHIBIT A
Wire Instructions
[TPG Wire instructions]
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