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Exhibit
10.6
METAVANTE TECHNOLOGIES,
INC.
CHANGE OF CONTROL
AGREEMENT
THIS AGREEMENT, entered into
as of the 1st day of November, 2007, by and between METAVANTE
HOLDING COMPANY (to be renamed METAVANTE TECHNOLOGIES, INC.) (
“Metavante Technologies” ), and
(the “ Executive ” ) (hereinafter
collectively referred to as the “ Parties
” ).
W I T N E S S E T
H:
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
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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 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
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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
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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 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
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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;
(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
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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
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(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).
(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
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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 l
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