Settlement Agreement and Global Amendment to Agreement for Information Technology Service and Related Agreements
Category: Information Technology, Settlement
AGREEMENT
In consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Representations and Warranties.
(a) Representations and Warranties of Fidelity. Fidelity hereby represents and warrants for the exclusive benefit and reliance of Customer that this Agreement has been duly executed and delivered by Fidelity and, assuming the due authorization, execution and delivery hereof and thereof by the Customer, this Agreement constitutes a valid and binding obligation of Fidelity, enforceable against Fidelity in accordance with the terms hereof.
(b) Representations and Warranties of Customer. Customer hereby represents and warrants for the exclusive benefit and reliance of Fidelity that this Agreement has been duly executed and delivered by Customer and, assuming the due authorization, execution and delivery hereof and thereof by Fidelity, this Agreement constitutes a valid and binding obligation of Customer, enforceable against Customer in accordance with the terms hereof.
2. Cash Payment. On the date that is the Effective Date of the Initial Merger, as that date is defined in the Merger Agreement (the “Initial Merger Date”) and contingent upon the occurrence of the Initial Merger during the term of this Agreement, Customer shall pay Fidelity an amount equal to Five Million Six Hundred Thousand Dollars and No One Hundredths ($5,600,000.00) in immediately available funds.
3. Services. During the term of this Agreement Fidelity shall provide Customer (i) services Fidelity provided to Customer under any of the Existing Agreements or otherwise during December, 2006 (the “Existing Services”) and (ii) and the Internet Wire Exchange program offered by Fidelity (the “Additional Services”), in each case subject to termination in accordance with the terms of this Agreement, as specified in Section 5 below.
4. Charges for Services. Fidelity shall provide Existing Services in accordance with terms and conditions of the Existing Agreements at the rates Fidelity charged Customer for the Existing Services in December, 2006, (i) subject to adjustment for changes in volume where applicable and (ii) except as provided otherwise in Section 6 of this Agreement or where provisions of this Agreement conflict with provisions of the Existing Agreements. Fidelity shall provide Additional Services to Customer at a flat rate of $400 per month.
5. Termination of Services. At any time after (i) June 30, 2007 and (ii) the Initial Merger Date, Customer may terminate any of the Existing Services by providing not less than 90 days’ written notice to Fidelity, it being understood that notice of termination of the Existing Services will also be considered termination of the Additional Services. Upon receipt of notice of termination of such services, Fidelity will provide Customer its standard deconversion support at the rates set forth on Schedule B attached hereto and incorporated herein by this reference, including without limitation the provision of three sets of Deconversion Test Data in readily-usable electronic format. The parties shall cooperate to accomplish promptly the deconversion of Customer in accordance with the terms of the Existing Agreements; provided, however, notwithstanding anything to the contrary in any of the Existing Agreements, this Agreement or otherwise, in no event shall the Customer’s responsibility for standard deconversion services specified in Schedule B exceed $300,000 and in no event shall Fidelity’s duty to support Customer’s deconversion exceed the level of services that would equal $300,000.00 under the lower of Fidelity’s current published rates and the rates set forth on Schedule B.
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6. Effect of Initial Merger. Upon the Initial Merger Date, the provisions of any Existing Agreements regarding (i) the term of any Existing Agreements, (ii) any restrictions on Customer or any of its affiliates to engage third parties or contract for Existing Services, Additional Services or other information services; (iii) any provisions regarding liquidated damages (or any other damages based on early termination of an agreement or arrangement), and (iv) any obligation on the part of Customer or any of its affiliates to renew the use of the Existing Services, Additional Services or any other services provided by Fidelity, or provide Fidelity a right of first refusal, right of first offer or other similar option to provide such services, shall terminate and be null and void. The parties further specifically agree that upon the Initial Merger Date, Fidelity, its affiliates and/or subcontractors will not have any right to be Customer’s sole and exclusive provider of the Existing Services, Additional Services or any other information services. Upon the Initial Merger Date, the terms described in items (i) – (iv) of the foregoing sentences and any terms relating to exclusivity of services shall be governed solely by the terms of this Agreement.
7. Release. On the Initial Merger Date, contingent upon the occurrence of the Initial Merger, and in consideration of the promises set forth in this Agreement, Customer and Fidelity each hereby release all claims, demands or actions of any nature, known or unknown, foreseen or unforeseen, against the other party, its parent, affiliate, subsidiaries or successors, including without limitation, those arising out of or relating to the Existing Agreements, the termination thereof or any rights or obligations arising thereunder, other than obligations expressly set forth in this Agreement. Each party hereto acknowledges that this is a full and final release and that each party intends and expressly agrees that it shall be effective as a bar to every claim, demand, and cause of action against the other party, its parent, affiliate, subsidiaries or predecessors as of the Initial Merger Date, except as specifically set forth otherwise in this Agreement. The parties have had an opportunity to confer with counsel concerning the substance of the release contained in this Agreement. It is the parties’ express intent to release not only known claims arising under or relating to the Agreement, but all unknown claims as well. Fidelity expressly acknowledges that it has received valuable consideration for the release of all unknown claims. Each party hereto also expressly waives all rights and benefits conferred upon it now or in the future under California Civil Code section 1542, which provides as follows:
“A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her, must have materially affected his or her settlement with the debtor.”