Exhibit 10.7(a)
METAVANTE TECHNOLOGIES,
INC.
AMENDED AND
RESTATED
CHANGE OF CONTROL
AGREEMENT
THIS AGREEMENT,
entered into as of the 24 th day of November, 2008, by and
between METAVANTE TECHNOLOGIES, INC. ( “ Metavante
Technologies ” ), and Donald W. Layden, Jr. (the
“ Executive ” ) (hereinafter collectively
referred to as the “ Parties ”
).
W I T N E S S E T H:
WHEREAS, Executive and Metavante
Technologies are parties to that certain Change of Control
Agreement dated as of November 1, 2007 (the “Change of
Control Agreement”); and
WHEREAS, the parties wish to amend
and restate the Change of Control Agreement; and
WHEREAS, Executive is employed by
Metavante Technologies or by another Metavante Group Member (as
hereafter defined in Section 4); and
WHEREAS, the Board of Directors of
Metavante Technologies (the “ Board ” )
recognizes that the possibility of a Change of Control (as
hereinafter defined in Section 2) exists and that the threat
of or the occurrence of a Change of Control can result in
significant distractions of certain of its key management personnel
because of the uncertainties inherent in such a situation;
and
WHEREAS, the Board has determined
that it is essential and in the best interest of Metavante
Technologies and its shareholders to retain the services of the
Executive in the event of a threat or occurrence of a Change of
Control and to ensure Executive’s continued dedication and
efforts in such event without undue concern for Executive’s
personal financial and employment security; and
WHEREAS, Metavante Technologies has
determined that Executive should be compensated in the event of a
Change of Control if Executive’s employment is terminated
without Cause or Executive terminates Executive’s employment
for Good Reason during the Term, both as defined below.
NOW, THEREFORE, for good and
adequate consideration, the sufficiency of which is hereby
acknowledged, the Parties hereto hereby agree as
follows.
1. Term of Agreement . The
“ Term ” of this Agreement begins on the
date a Change of Control occurs and ends on the third anniversary
after the date of a Change of Control.
2. Change of Control . For
purposes of this Agreement, a “ Change of Control
” shall mean the first to occur of the
following:
(a) The acquisition by any
individual, entity or “group” (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the “ Exchange Act ” ))
other than WPM, L.P., of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of thirty-three
percent (33%) or more of either (i) the then-outstanding
shares of common stock of Metavante Technologies (the “
Outstanding Metavante Technologies Common Stock ”
), or (ii) the combined voting power of the then-outstanding
voting securities of Metavante Technologies entitled to vote
generally in the election of directors (the “
Outstanding Metavante Technologies Voting Securities
” ), provided, however, that the following acquisitions
of common stock shall not constitute a Change of Control:
(i) any acquisition directly from Metavante Technologies
(excluding an acquisition by virtue of the exercise of a conversion
privilege or by one person or a group of persons acting in
concert), (ii) any acquisition by Metavante Technologies,
(iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by any Metavante Group Member,
(iv) any acquisition by WPM or (v) any acquisition by any
corporation pursuant to a reorganization, merger, statutory share
exchange or consolidation which would not be a Change of Control
under subsection (c) of this Section 2; or
(b) Individuals who, as of the date
hereof, constitute the Board (the “ Incumbent Board
” ) cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual
becoming a director subsequent to the date hereof whose election,
or nomination for election by the Metavante Technologies’
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered
as though such individual
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were a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either an actual
or threatened “election contest” or other actual or
threatened “solicitation” (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act)
of proxies or consents by or on behalf of a person other than the
Incumbent Board; or
(c) Consummation of a
reorganization, merger, statutory share exchange or consolidation,
unless, following such reorganization, merger, statutory share
exchange or consolidation, (i) more than fifty percent
(50%) of, respectively, the then-outstanding shares of common
stock of the corporation resulting from such reorganization,
merger, statutory share exchange or consolidation and the combined
voting power of the then-outstanding voting securities of such
corporation entitled to vote generally in the election of directors
is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Metavante
Technologies Common Stock and Outstanding Metavante Technologies
Voting Securities immediately prior to such reorganization, merger,
statutory share exchange or consolidation in substantially the same
proportions as their ownership, immediately prior to such
reorganization, merger, statutory share exchange or consolidation,
(ii) no person (excluding Metavante Technologies, any employee
benefit plan (or related trust) of the Metavante Group or such
corporation resulting from such reorganization, merger, statutory
share exchange or consolidation, WPM, and any person beneficially
owning, immediately prior to such reorganization, merger, statutory
share exchange or consolidation, directly or indirectly,
thirty-three percent (33%) or more of the Outstanding
Metavante Technologies Common Stock or Outstanding Metavante
Technologies Voting Securities, as the case may be) beneficially
owns, directly or indirectly, thirty-three percent (33%) or
more of, respectively, the then-outstanding shares of common stock
of the corporation resulting from such reorganization, merger,
statutory share exchange or consolidation or the combined voting
power of the then-outstanding voting securities of such
corporation, entitled to vote generally in the election of
directors, and (iii) at least a majority of the members of the
board of directors of the corporation resulting from such
reorganization, merger, statutory share exchange or consolidation
were members of the Incumbent Board at the time of the execution of
the initial agreement providing for such reorganization, merger or
consolidation; or
(d) Consummation of (i) a
complete liquidation or dissolution of Metavante Technologies or
(ii) the sale or other disposition of all or substantially all
of the assets of Metavante Technologies, other than to a
corporation, with respect to which following such sale or other
disposition, (A) more than fifty percent (50%) of,
respectively, the then-outstanding shares of common stock of such
corporation and the combined voting power of the then-outstanding
voting securities of such corporation and the combined voting power
of the then-outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Metavante Technologies Common
Stock and Outstanding Metavante Technologies Voting Securities
immediately prior to such sale or other disposition in
substantially the same proportion as their ownership, immediately
prior to such sale or other disposition, of the Outstanding
Metavante Technologies Common Stock and Outstanding Metavante
Technologies Voting Securities, as the case may be, (B) no
person (excluding Metavante Technologies and any employee benefit
plan (or related trust) of the Metavante Group or such corporation,
WPM, and any person beneficially owning, immediately prior to such
sale or other disposition, directly or indirectly, thirty-three
percent (33%) or more of the Outstanding Metavante Common
Stock or Outstanding Metavante Technologies Voting Securities, as
the case may be) beneficially owns, directly or indirectly,
thirty-three percent (33%) or more of, respectively, the
then-outstanding shares of common stock of such corporation or the
combined voting power of the then-outstanding voting securities of
such corporation entitled to vote generally in the election of
directors, and (C) at least a majority of the members of the
board of directors of such corporation were members of the
Incumbent Board at the time of the execution of the initial
agreement or action of the Incumbent Board providing for such sale
of other disposition of assets of Metavante
Technologies.
Notwithstanding the preceding
provisions of this Section 2, no event shall constitute a
Change of Control if, immediately following such event,
(x) WPM beneficially owns, directly or indirectly, 25% or more
of the Outstanding Metavante Technologies Voting Securities (or, in
the case of clauses (c) and (d) above, voting securities
of the entity resulting from the applicable event entitled to vote
generally in the election of directors), and (y) no person
(other than Metavante Technologies or any employee benefit plan (or
related trust) of the Metavante Group or the resulting entity)
owns, directly or indirectly, more Outstanding Metavante
Technologies Voting Securities (or, if applicable, voting
securities of such resulting entity) than WPM; provided, however,
that the acquisition by WPM, or any “group” (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act)
including WPM, of beneficial ownership of fifty percent
(50%) or more of either: (i) the then-outstanding shares
of Metavante Technologies Common Stock; or (ii) the combined
voting power of the Outstanding Metavante Technologies Voting
Securities shall in any event constitute a Change of Control for
purposes of this Agreement.
3. Severance . If, during the
Term, Executive’s employment is terminated by a Metavante
Group Member (and Executive is no longer employed by any Metavante
Group Member, other than for Cause or Disability or due to
Executive’s death, or by Executive for Good Reason (solely as
defined in Section 4 of this Agreement), Executive shall be
entitled to the compensation and benefits set forth in
Section 6 of this Agreement, conditioned upon the execution
and delivery by Executive, within 30 days of the date
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of Executive’s termination of employment,
of a Separation Agreement and Release (which Executive does not
later revoke) substantially in the form attached hereto as Exhibit
A (the form shall be subject to any changes that Metavante
Technologies deems necessary).
4. Definitions . For purposes
of this Agreement, the following terms shall have the meanings
described hereunder:
(a) Affiliate . “
Affiliate ” means, with respect to Metavante
Technologies or Metavante Corporation, any other entity which
directly or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under common Control with
Metavante Technologies or Metavante Corporation and with respect to
WPM, L.P. and Warburg means any other entity which directly or
indirectly through one or more intermediaries, Controls, is
Controlled by, or is under Common Control with WPM, L.P. or
Warburg, as applicable. For purposes of this definition “
Control ” (including the terms “Controlled
by” and “under common Control with”) means with
respect to any entity, the power to direct the management and
policies of such entity, directly or indirectly whether through the
ownership of voting securities, by contract, or
otherwise.
(b) Annual Base Salary .
“ Annual Base Salary ” shall mean the
greater of (i) the base salary ( “ Base Salary
” ) paid or payable to Executive by Metavante Group
Members in respect of the twelve (12) month period immediately
preceding the month in which the date of a Change of Control
occurs, or (ii) Executive’s Base Salary on the
Termination Date. Base Salary shall be calculated by including in
Base Salary any amounts which were deferred by Executive under the
401(k) plan, the cafeteria plan and any nonqualified deferred
compensation plans of the Metavante Group and any other deferrals
that would have increased Executive’s Base Salary if paid in
cash when earned.
(c) Annual Bonus . “
Annual Bonus ” shall mean the annual bonus, if
any, awarded (including amounts that were deferred) to Executive in
the last fiscal year immediately preceding the fiscal year in which
the termination occurs.
(d) Cause . “
Cause ” shall mean a termination evidenced by a
resolution adopted in good faith by a majority of the Board that
Executive (i) willfully, deliberately and continually failed
to substantially perform Executive’s duties (other than a
failure resulting from Executive’s incapacity due to physical
or mental illness) which failure constitutes gross misconduct, and
results in and was intended to result in demonstrable material
injury to a member of the Metavante Group, monetary or otherwise,
or (ii) committed acts of fraud and dishonesty constituting a
felony, as determined by a final judgment or order of a court of
competent jurisdiction, and resulting or intended to result in gain
to or personal enrichment of Executive at the expense of a
Metavante Group Member, provided, however, that no termination of
Executive’s employment shall be for Cause until
(a) Executive shall have had at least sixty (60) days to
cure any conduct or act alleged to provide Cause for termination
after a written notice of demand has been delivered to Executive
specifying in detail the manner in which Executive’s conduct
would constitute Cause, and (b) Executive shall have been
provided an opportunity to be heard by the Board (with the
assistance of Executive’s counsel if Executive so desires).
No act, or failure to act, on Executive’s part, shall be
considered “willful” unless he has acted or failed to
act in bad faith and without a reasonable belief that
Executive’s action or failure to act was in the best interest
of the Metavante Group. During the 60-day cure period, Executive
may be put on paid administrative leave by the management of
Metavante Technologies.
(e) Disability . “
Disability ” shall mean the absence of Executive
from Executive’s duties with the Metavante Group Member which
employs Executive on a full-time basis for one hundred eighty
(180) consecutive business days as a result of incapacity due
to mental or physical illness which is determined to be total and
permanent by a physician selected by Metavante Technologies or its
insurers and acceptable to Executive or Executive’s legal
representative, provided if the Parties are unable to agree, the
Parties shall request the Dean of the Medical College of Wisconsin
to choose such physician. If Metavante Technologies determines in
good faith that the Disability of Executive has occurred during the
Term (pursuant to the definition of Disability set forth above), it
may give to Executive written notice in accordance with
Section 5 of this Agreement of Metavante Technologies
intention to terminate Executive’s employment. In such event,
Executive’s employment with all Metavante Group Members shall
terminate effective on the thirtieth (30th) day after receipt
of such notice by Executive (the “Disability Effective
Date” ), provided that, within thirty (30) days
after such receipt, Executive shall not have returned to full-time
performance of Executive’s duties.
(f) Good Reason .
(1) For purposes of this Agreement,
“ Good Reason ” means the occurrence of
any one of the following:
(i) A reduction in Executive’s
base salary or target short-term incentive opportunity below that
immediately prior to the Change of Control;
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(ii) Failure to provide Executive
with the same long term incentive opportunities or benefits
(including retirement plans) provided to other peer executives of
the entity which employs Executive after the Change of Control;
or
(iii) Transferring Executive to a
primary work location that is more than thirty (30) miles
further away from Executive’s residence than the primary work
location immediately prior to the Change of Control.
(iv) a material diminution of the
Executive’s title from his title prior to the change of
control;
(v) A material adverse change,
without the Executive’s written consent, in the
Executive’s working conditions or status with Metavante
Technologies, including but not limited to a significant change in
the nature or scope of the Executive’s authority, powers,
functions, duties or responsibilities (except that being removed
from a committee shall not be considered such a change unless it is
removal from the Executive Committee of Metavante
Technologies).
(2) Any event or condition described
in Section 4(f)(1) which occurs prior to the date of the
Change of Control but which Executive reasonably demonstrates
(i) was at the request of a third party who has indicated an
intention or taken steps reasonably calculated to effect a Change
of Control, or (ii) otherwise arose in connection with or in
anticipation of a Change of Control, shall constitute Good Reason
for purposes of this Agreement notwithstanding that it occurred
prior to the date of the Change of Control.
(3) Executive’s right to
terminate Executive’s employment for Good Reason shall not be
affected by Executive’s incapacity due to physical or mental
illness. Executive’s continued employment or failure to give
Notice of Termination shall not constitute consent to, or a waiver
of rights with respect to, any circumstances constituting Good
Reason hereunder.
(g) Metavante Group .
“ Metavante Group ” shall mean Metavante
Technologies and all of its Affiliates.
(h) Metavante Group Member .
“ Metavante Group Member ” shall mean a
member of the Metavante Group.
(i) Recent Average Bonus .
“ Recent Average Bonus ” shall mean the
average annualized (for any fiscal year consisting of less than
twelve (12) full months or with respect to which Executive has
been employed by a Metavante Group Member for less than twelve
(12) full months) bonuses paid or payable, including any
amounts which were deferred under any applicable plans, to
Executive by the Metavante Group in respect of the three
(3) fiscal years immediately preceding the fiscal year in
which the date of the Change of Control occurs.
(j) Termination Date .
“ Termination Date ” shall mean in the
case of Executive’s death, date of death, or in all other
cases, the date specified in the Notice of Termination subject to
the following:
(i) If Executive’s employment
is terminated by a Metavante Group Member (and Executive is no
longer employed by any Metavante Group Member), the date specified
in the Notice of Termination shall be at least thirty
(30) days after the date the Notice of Termination is given to
Executive, provided, however, that in the case of Disability,
Executive shall not have returned to the full-time performance of
Executive’s duties during such period of at least thirty
(30) days;
(ii) If Executive’s employment
is terminated for Good Reason, the date specified in the Notice of
Termination shall not be more than sixty (60) days after the
date the Notice of Termination is given to Metavante Technologies;
and
(iii) In the event that within
thirty (30) days following the date of receipt of the Notice
of Termination, one party notifies the other that a dispute exists
concerning the basis for termination, Executive’s employment
hereunder shall not be terminated except after the dispute is
finally resolved and a Termination Date is determined either by a
mutual written agreement of the Parties, or by a binding and final
judgment order or decree of a court of competent jurisdiction (the
time for appeal therefrom having expired and no appeal having been
perfected).
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(k) WPM . “
WPM ” means collectively, WPM, L.P., a limited
partnership organized by Warburg Pincus Private Equity IX, L.P.
(“ WPM L.P. ”), a global private equity
investment fund managed by Warburg Pincus LLC (“
Warburg ”) and any Affiliates of WPM L.P. or
Warburg.
5. Notice of Termination .
Any purported termination by a Metavante Group Member, on the one
hand, or by Executive, on the other hand (other than by death of
Executive) shall be communicated by Notice of Termination to the
other. For purposes of this Agreement, a “ Notice of
Termination ” shall mean a written notice which
(i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive’s employment
under the provision so indicated, and (iii) the Termination
Date. For purposes of this Agreement, no such purported termination
of employment shall be effective without such Notice of
Termination.
6. Obligations of Metavante Upon
Termination .
(a) Good Reason; Other Than for
Cause, Death or Disability . If, during the Term,
Executive’s employment is terminated by all Metavante Group
Members other than for Cause, Disability or due to
Executive’s death, or Executive shall terminate employment
for Good Reason:
(1) Metavante Technologies (or
another Metavante Group Member) shall pay to Executive the
aggregate of the following amounts:
(i) A. As soon as practicable after
the Termination Date an amount equal to the Executive’s
Annual Base Salary through the Termination Date to the extent not
theretofore paid;
B. A lump sum payment six
(6) months after the Termination Date equal to the product of
(x) the higher of (I) the Recent Average Bonus or (II)
the Annual Bonus paid or payable, including any amount deferred,
(and annualized for any fiscal year consisting of less than twelve
(12) full months or for which Executive has been employed for
less than twelve (12) full months) for the most recently
completed fiscal year prior to the Termination Date, if any (such
higher amount being referred to as the “ Highest Annual
Bonus ” ) and (y) a fraction, the numerator of
which is the number of days completed in the current fiscal year
through the Termination Date, and the denominator of which is three
hundred sixty-five (365); and
C. As soon as practicable after the
Termination Date an amount equal to the Executive’s accrued
but untaken vacation through the Termination Date.
The sum of the amounts described in
Clauses (A) and (B) and (C) shall be hereinafter
referred to as the “ Accrued Obligations
” ;
(ii) A lump sum payment six
(6) months after the Termination Date equal to the product of
(A) three (3) and (B) the sum of
(x) Executive’s Annual Base Salary and
(y) Executive’s Highest Annual Bonus;
(iii) A lump-sum supplemental
retirement benefit payment six (6) months after the
Termination Date equal to the difference between (1) the
actuarial equivalent (utilizing
