METAVANTE DIRECTORS DEFERRED COMPENSATION PLANEmployee Benefits Plan Agreement |
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Exhibit 10.1
METAVANTE
DIRECTORS DEFERRED COMPENSATION PLAN
ARTICLE I
Introduction
Metavante Holding Company (to be renamed as “Metavante Technologies, Inc) is establishing the Metavante Directors Deferred Compensation Plan effective November 1, 2007 to enable its outside Directors to defer all or any part of their compensation from the Corporation.
This document is intended to comply with the provisions of Section 409A of the Internal Revenue Code and regulations thereunder and shall be interpreted accordingly. If any provision or term of this document would be prohibited by or inconsistent with the requirements of Section 409A of the Code, then such provision or term shall be deemed to be reformed to comply with Section 409A of the Code.
ARTICLE II
Definitions and Construction
As used herein, the following words shall have the following meanings:
2.01 Account . The account maintained for each Participant pursuant to Article V below. The Participant’s Account shall include such subaccounts as the Administrator deems necessary or desirable for purposes of implementing separate Distribution Elections for deferrals made in separate years and/or for purposes of implementing the Participant’s Investment Election or otherwise.
2.02 Administrator . The Board of Directors of the Corporation.
2.03 Affiliate . Any corporation or other entity which directly or indirectly controls, is controlled by, or under common control with, the Corporation. Control means the ability to elect a majority of the Board of Directors of a corporation or other entity or, if there is no Board of Directors, a majority of the body which governs the entity.
2.04 Beneficiaries . Those persons designated by a Participant to receive benefits hereunder or, failing such a designation, the spouse or, if none, the estate of a Participant.
2.05 Change of Control . “Change of Control” shall have the same meaning as in the Metavante Corporation 2007 Equity Incentive Plan.
2.06 Code . The Internal Revenue Code of 1986, as amended.
2.07 Common Stock . The common stock of the Corporation.
2.08 Corporation . Metavante Holding Company (to be renamed Metavante Technologies, Inc).
2.09 Deferral Election . The election by a Participant, from time to time, to defer Fees and/or Restricted Stock Units in accordance with the provisions of this Plan.
2.10 Distribution Date . In the case of a lump sum distribution, “Distribution Date” means February 15 following the year in which Separation from Service occurs. In the case of an installment distribution, “Distribution Date” means January 1 of the year following the year in which the Participant’s Separation from Service occurs.
2.11 Distribution Election(s) . The election(s) by a Participant to choose the method of distribution of his Account. As described in Section 7.02(b), a Participant may have multiple Distribution Elections in effect.
2.12 Disability . A Participant shall be considered to be suffering from a Disability if the Participant is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, unable to engage in any substantial gainful activity.
2.13 Fair Market Value . The closing sale price of the Common Stock on the New York Stock Exchange as reported in the Midwest Edition of the Wall Street Journal for the applicable date; provided that , if no sales of Common Stock were made on said exchange on that date, “Fair Market Value” shall mean the closing sale price of the Common Stock as reported for the next succeeding day on which sales of Common Stock are made on said exchange, or, failing any such sales, such other market price as the Committee may determine in conformity with pertinent law.
2.14 Fees . The cash payments which would be made to the Director in the absence of a deferral election hereunder for his services as a Director of the Corporation.
2.15 Investment Election . The form filed by the Participant from time to time which designates the Participant’s investment choices.
2.16 Participant . A non-employee Director of the Corporation who is eligible under Article III (such person shall be known as an “Active Participant”) and any person who previously participated in the Plan.
2.17 Plan . The Metavante Directors Deferred Compensation Plan set forth herein and as amended from time to time.
2.18 Plan Year . The calendar year.
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2.19 Restricted Stock Units . Restricted stock units awarded to the Director under an equity compensation plan sponsored by the Corporation.
2.20 “ Separation from Service ” means expiration or termination of the arrangement with the Corporation pursuant to which the Participant performed services as a director of the Corporation if such expiration or termination constitutes a good faith and complete termination of the relationship and all other independent contractor relationships the Participant has with the Corporation. A good faith and complete termination of a relationship shall not be deemed to have occurred if the Corporation anticipates a renewal of a contractual relationship or anticipates that the Participant shall become an employee of the Corporation. For this purpose, the Corporation is considered to anticipate the renewal of a contractual relationship with the Participant if it intends to contract again for the services provided under the expired arrangement, and neither the Corporation nor the Participant has eliminated the Participant as a possible provider of services under any such new arrangement. Further, the Corporation is considered to intend to contract again for the services provided under an expired arrangement if the Corporation’s doing so is conditioned only upon incurring a need for the services, the availability of funds or both. The foregoing requirements are deemed satisfied if no amount will be paid to the Participant before a date at least 12 months after the day on which the arrangement expires pursuant to which the Participant performed services for the Corporation (or, in the case of more than one arrangement, all such arrangements expire) and no amount payable to the Participant on that date will be paid to the Participant if, after the expiration of the arrangement (or arrangements) and before that date, the Participant performs services for the Corporation as a director or other independent contractor or an employee).
2.21 Unforeseeable Emergency . A severe financial hardship to a Participant resulting from an illness or accident of the Participant or the Participant’s spouse or dependent (as defined in Section 152(a) of the Code, without regard to Section 151 (b)(1), (b)(2) and (d)(1)(B)), loss of the Participant’s property due to casualty (including the need to rebuild a home following damage to a home not otherwise covered by insurance, for example, as a result of a natural disaster), or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant. For example, the imminent foreclosure of or eviction from the Participant’s primary residence may constitute an Unforeseeable Emergency. In addition, the need to pay for medical expenses, including non-refundable deductibles, as well as for the costs of prescription drug medication, may constitute an Unforeseeable Emergency. Finally, the need to pay for funeral expenses of a spouse or a dependent (as defined in Code Section 152(a), without regard to Section 151 (b)(1),(b)(2) and (d)(1)(B)) may also constitute an Unforeseeable Emergency. Except as otherwise provided above, the purchase of a home and the payment of college tuition are not Unforeseeable Emergencies. Whether a Participant is faced with an Unforeseeable Emergency is to be determined based on the relevant facts and circumstances of each case.
ARTICLE III
Eligibility
3.01 Conditions of Eligibility . Each non-employee Director of the Corporation becomes eligible immediately upon election as a Director.
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ARTICLE IV
Deferrals and Other Contributions
4.01 Deferral Elections .
(a) Fees . A Participant may elect to defer up to 100% of his Fees for services performed during a Plan Year by completing and filing such forms as required by the Corporation prior to the first day of the Plan Year. A Participant may elect that his deferrals shall be taken either at a uniform percentage rate from each of his Fee payments during the Plan Year. Deferred Fees shall be retained by the Corporation, credited to the Participant’s Account pursuant to Section 5.01 and paid in accordance with the terms and conditions of the Plan. A Director who is not already a Participant and is not already eligible to participate in any other nonqualified deferred compensation plan of the account balance type sponsored by the Corporation who becomes a Participant for the first time during a Plan Year may within 30 days after the effective date of participation make an election to defer a uniform percentage of Fees to be paid to him subsequently for services to be performed subsequent to the deferral election (not to exceed 100% of such payments).
(b) Restricted Stock Units . A Participant may elect to defer a specified percentage of Restricted Stock Units granted to him in any Plan Year (not to exceed 100% of such Restricted Stock Units) by completing and filing such forms as required by the Corporation. To be effective, the deferral election must be filed prior to the beginning of the Plan Year in which the restricted Stock Units are granted. A Director who is not already a Participant and is not already eligible to participate in any other nonqualified deferred compensation plan sponsored by the Corporation of the account balance type who becomes a Participant for the first time during a Plan Year may, within 30 days after the effective date of participation, make an election to defer a specified percentage of Restricted Stock Units granted after such election is made.
4.02 Continued Effect of Elections .
(a) Fees . A Participant’s deferral election with respect to a Plan Year under Section 4.01(a) shall be irrevocable after the last date upon which it may be filed pursuant to Section 4.01(a) and shall continue in effect each subsequent Plan Year until prospectively revoked or amended in writing. For a revocation or amendment to be effective with respect to Fees for services performed during a Plan Year, it must be filed by the last date for which an effective deferral election is permitted to be filed with respect to those Fees under Section 4.01(a).
(b) Restricted Stock Unit . A Participant’s deferral election under Section 4.01(b) with respect to Restricted Stock Units shall be irrevocable after the last date upon which it may be filed pursuant to Section 4.01(b) and shall continue in effect with respect to Restricted Stock Units granted in subsequent Plan Years until prospectively revoked or amended in writing. For a revocation or amendment to be effective for any Restricted Stock Units, it must be filed by the last date for which an effective deferral election is permitted to be filed with respect to those Restricted Stock Units under Section 4.01(b).
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4.03 Unforeseeable Emergency . In the event that a Participant makes application for a hardship distribution under Section 7.04 and the Administrator determines that an Unforeseeable Emergency exists, all deferral elections otherwise in effect under this Article IV for the Participant and any other nonqualified deferred compensation plan of the account balance type sponsored by the Corporation shall immediately terminate upon such determination. To resume deferrals thereafter, a Participant must make an election satisfying the provisions of Section 4.01(a) and/or (b), as the case may be, as those provisions apply to someone who is already a Participant in the Plan.
ARTICLE V
Accounts and Sub-Accounts
5.01 Credits to Account . Bookkeeping amounts equal to the amounts deferred by a Participant pursuant to Article IV shall, subject to Section 5.02(b)(vii), be credited to the Participant’s Account as soon as practicable after the deferred compensation would otherwise have been paid to such Participant in the absence of deferral.
5.02 Valuation of Account .
(a) The Participant’s Account shall be credited or charged with deemed earnings or losses as if it were invested in accordance with paragraph (b) below.
(b) (i) The investment options available hereunder for the deemed investment of the Account shall be the Common Stock option and the other options specified in Section 5.03. However, in no event shall the Corporation be required to make any such investment in the Common Stock option or any other investment option and, to the extent such investments are made, such investments shall remain an asset of the Corporation subject to the claims of its general creditors.
(ii) On the date deferrals are credited to the Participant’s Account under Section 5.01, such amounts shall be deemed to be invested in one or more of the investment options designated by the Participant for such deemed investment pursuant to Section 5.03. Once made, the Participant’s investment designation shall continue in effect for existing Account balances and all future deferrals and contributions until changed by the Participant. Any such change may be prospectively elected by the Participant at the times established by the Administrator, which shall be no less frequently than semi-annually, and shall be effective only from and after the effective date of such change. Until such time as the Administrator takes action to the contrary, such changes may be elected at the times specified in Section 5.03.
(iii) A Participant’s balance in the Common Stock option shall be determined as though deferrals credited to the Participant’s Account allocated to that option are invested in Common Stock by purchase at the Fair Market Value price of such stock on the date the amounts are credited to the Participant’s Account.
(iv) The portion of a Participant’s Account invested in the Common Stock option shall be called the Metavante Stock Portion. The remaining portion of the Participant’s Account is herein referred to as the General Investment Portion.
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(v) The value of the Metavante Stock Portion on any particular date will be based upon the value of the shares of Common Stock which such Portion is deemed to hold on that date. Subject to subparagraph (vii) below, the shares of such stock deemed to be held in such Portion shall be credited with dividends at the time they are credited with respect to actual shares of Common Stock and such dividends shall be deemed to be used to purchase additional shares of Common Stock on the day following the crediting of such dividends at the then Fair Market Value price of such stock. Subject to subparagraph (vii) below, the Metavante Stock Portion shall also be credited from time to time with additional shares of Common Stock equal in number to the number of shares granted in any stock dividend or split to which the holder of a like number of shares of Common Stock would be entitled. All other distributions with respect to shares of Common Stock shall be similarly applied.
(vi) The valuation of the funds held in the General Investment Portion shall be accomplished in the same manner as though the deemed investments in such funds had actually been made and are valued at their fair market value price on valuation dates hereunder.
(vii) A Participant’s Account shall be valued as of December 31 each year and at such other times established by the Administrator, which shall be no less frequently than quarterly. Until such time as the Administrator takes action to the contrary, such valuation shall be quarterly. The Corporation shall increase the Account of each Participant by (A) the amount, if any, of deferrals credited pursuant to Section 5.01 during any calendar quarter, and (B) any investment income or gains and decrease each Participant’s Account by (A) any withdrawals or distributions from the Account during any calendar quarter and (B) any investment losses resulting as if the Account were invested pursuant to the timely-filed Investment Election in effect for such calendar quarter. For purposes of computing the investment return on the Account for any quarter, the principal balance as of the first day of the relevant quarter shall equal the balance as of the end of the preceding quarter, increased by 50% of the amounts, if any, of deferrals credited to the Account during the quarter pursuant to Section 5.01 hereof and decreased by any distributions made to the Participant or his Beneficiaries from the Account during the quarter.
(viii) All elections and designations under this Section 5.02 shall be made in accordance with procedures prescribed by the Administrator.
(ix) Notwithstanding any other provision of this Section 5.02 to the contrary, a Participant may not make any election or transaction in Common Stock at a time when (A) the Participant is in possession of any material non-public information or at a time not permitted under the Corporation’s policy on insider trading or (B) not permitted under applicable law.
(c) The Corporation shall provide quarterly reports to each Participant showing (a) the value of the Account as of the most recent calendar quarter end, (b) the deferrals and contributions credited to the Participant under Section 5.01 for such quarter and (c) the amount of any investment gain or loss.
(d) Notwithstanding any other provision of this Plan that may be interpreted to the contrary, the deemed investments are to be used for measurement purposes only and shall
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not be considered or construed in any manner as an actual investment of the Participant’s Account balance in any investment option. In the event that the Corporation or the trustee of any grantor trust which the Corporation may choose to establish to finance some or all of its obligations hereunder, in its own discretion, decides to invest funds in any or all of such options, the Participant shall have no rights in or to such investments themselves. Without limiting the foregoing, the Participant’s Account balance shall at all times be a bookkeeping entry only and shall not represent any investment made on the Participant’s behalf by the Corporation or any trust; the Participant shall at all times remain an unsecured creditor of the Corporation.
5.03 Available Investm






