Exhibit 10.10
AMENDED AND RESTATED
METAVANTE
2007 EQUITY INCENTIVE
PLAN
1. Objectives . The Metavante
2007 Equity Incentive Plan is designed to attract and retain
certain selected officers, key employees, non-employee directors
and appropriate third parties whose skills and talents are
important to the Company’s operations, and reward them for
making major contributions to the success of the Company. These
objectives are accomplished by making awards under the Plan,
thereby providing Participants with a proprietary interest in the
growth and performance of the Company. Such awards shall include
Awards of Options and Restricted Stock granted in substitution for
awards or options and restricted stock granted under a plan of
Marshall & Ilsley Corporation.
2. Definitions .
(a) “Award” shall mean
an Option, share of Restricted Stock, Restricted Stock Unit, SAR
(stock appreciation right), share of Performance Stock or
Performance Unit awarded to a Participant pursuant to such terms,
conditions and limitations as the Committee may establish in order
to fulfill the objectives of the Plan.
(b) “Award Agreement”
shall mean the agreement that sets forth the terms, conditions and
limitations applicable to an Award.
(c) “Board” shall mean
the Board of Directors of the Company.
(d) “Cause” shall mean
(i) the definition of Cause set forth in any individual
employment agreement or change of control agreement applicable to
such Participant, or (ii) in the case of a Participant who
does not have an individual employment agreement or change of
control agreement that defines Cause, the definition of Cause
contained in the Award Agreement, and (iii) in the case of a
Participant who does not have an individual employment agreement,
change of control agreement or Award Agreement that defines Cause,
then Cause shall mean the discharge of a Participant on account of
fraud or embezzlement against the Company or serious and willful
acts of misconduct which are detrimental to the business of the
Company.
(e) “Change of Control”
shall mean the first to occur of the following:
(i) 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 (A) the then-outstanding shares
of common stock of the Company (the “Outstanding Company
Common Stock”), or (B) the combined voting power of the
then-outstanding voting securities of the Company entitled to vote
generally in the election of directors (the “Outstanding
Company Voting Securities”), provided, however, that the
following acquisitions of common stock shall not constitute a
Change of Control: (I) any acquisition directly from the
Company (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 the Company,
(III) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any company
controlled by the Company (each a member of the “Metavante
Group”), (IV) any acquisition by WPM (except as set
forth below) 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 (iii) of this Section 2(e); or
(ii) Individuals who, as of the
Effective Date, 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 Effective Date whose
election, or nomination for election by the Company’s
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
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(iii) Consummation of a
reorganization, merger, statutory share exchange or consolidation,
unless, following such reorganization, merger, statutory share
exchange or consolidation, (A) 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 Company Common
Stock and Outstanding Company 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, (B) no person
(excluding the Company, 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, L.P., 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 Company Common Stock
or Outstanding Company 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 (C) 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
(iv) Consummation of a complete
liquidation or dissolution of the Company or the sale or other
disposition of all or substantially all of the assets of the
Company, 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 Company
Common Stock and Outstanding Company 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 Company Common Stock and
Outstanding Company Voting Securities, as the case may be,
(B) no person (excluding the Company 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 Company Common Stock
or Outstanding Company 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 the
Company.
Notwithstanding the preceding
provisions of this subsection 2(e), 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 Company Voting Securities (or, in the case of
clauses (iii) and (iv) 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 the Company or any employee benefit plan (or related
trust) of the Metavante Group or the resulting entity) owns,
directly or indirectly, more Outstanding Company 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 Common Stock; or
(ii) the combined voting power of the Outstanding Company
Voting Securities shall in any event constitute a Change of
Control.
(f) “Code” shall mean
the Internal Revenue Code of 1986, as amended from time to
time.
(g) “Common Stock” or
“Stock” shall mean the authorized and issued or
unissued common stock of the Company.
(h) “Committee” shall
mean the Compensation Committee of the Board, unless the Board
designates a different Committee. Except as otherwise determined by
the Board, the Committee shall be so constituted as to permit
grants to be exempt from Section 16(b) of the Securities
Exchange Act of 1934, as amended, by virtue of Rule 16b-3
thereunder, as such rule is currently in effect or as hereafter
modified or amended, and to permit the Plan to comply with
Section 162(m) of the Code and any regulations promulgated
thereunder, or any other statutory rule or regulatory
requirements.
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Notwithstanding the foregoing, the
full Board (i) shall act as the Committee with respect to any
Awards granted to non-employee directors and (ii) may grant
Awards to Participants prior to the date on which the Company
becomes a separately traded public company.
(i) “Company” shall mean
Metavante Technologies, Inc., a Wisconsin corporation. Unless the
context clearly indicates otherwise, references to the Company
shall also include Metavante Technologies, Inc.’s direct and
indirect subsidiaries, and partnerships and other business ventures
in which Metavante Technologies, Inc. or its direct or indirect
subsidiaries have a significant equity interest, as determined in
the sole discretion of the Committee. For purposes of defining
whether a Participant is receiving stock of a “service
recipient” under Section 409A of the Code and the
guidance thereunder, this definition of “Company” shall
be deemed to include the broadest definition of entities
permissible under such guidance.
(j) “Effective Date”
shall mean November 1, 2007.
(k) “Fair Market Value”
shall mean the closing sale price of Common Stock on the principal
securities exchange on which the Common Stock is then listed for
trading as reported in the Midwest Edition of the Wall Street
Journal on the indicated date. If no sales of Common Stock were
made on said exchange on that date, “Fair Market Value”
shall mean the closing sale price of Common Stock as reported for
the most recent preceding day on which sales of Common Stock were
made on said exchange, or, failing any such sales, such other
market price as the Board or the Committee may determine in
conformity with pertinent law and regulations of the Treasury
Department. Notwithstanding the foregoing, the Committee may
determine Fair Market Value for an Option or SAR using an average
selling price during a specified period of 30 days or less,
provided the Committee must irrevocably specify the commitment to
grant the stock right with a purchase or grant price set using such
an average selling price before the beginning of the specified
period. For this purpose, the average selling price may be
determined using the arithmetic mean of such selling prices on all
trading days during the specified period, or the average of such
prices over the specified period weighted based on the volume of
trading of such stock on each trading day during such specified
period. If Fair Market Value is determined using an average selling
price, the Committee must designate the recipient of the stock
right, the number of shares of Common Stock that are subject to the
stock right, and the method for determining the purchase or grant
price, including the period over which the averaging will occur,
before the beginning of the specified averaging period.
(l) “Incentive Stock
Option” shall mean an option to purchase shares of Common
Stock which complies with the provisions of Section 422 of the
Code.
(m) “M&I Option”
shall mean an option to purchase shares of common stock of
Marshall & Ilsley Corporation under an M&I
Plan.
(n) “M&I Plans”
shall mean the Marshall & Ilsley Corporation 1989, 1997,
2000 and 2003 Executive Stock Option and Restricted Stock Plans,
1993 Executive Stock Option Plan and 2006 Equity Incentive
Plan.
(o) “M&I Restricted Stock
Award” shall mean an award of restricted stock with respect
to Marshall & Ilsley Corporation to an Employee of the
Company under an M&I Plan which was not vested as of the
Effective Date.
(p) “Nonstatutory Stock
Option” shall mean an option to purchase shares of Common
Stock which does not comply with the provisions of Section 422
of the Code or which is designated as such pursuant to
Section 7 of the Plan.
(q) “Option” shall mean
(i) with respect to an employee, an Incentive Stock Option or
Nonstatutory Stock Option granted to a Participant by the Committee
pursuant to Section 7 hereof and (ii) with respect to any
non-employee, a Non-Statutory Stock Option granted to a Participant
by the Committee pursuant to Section 7 hereof.
(r) “Participant” shall
mean a current, prospective or former employee, non-employee
director or appropriate third party who provides services to the
Company to whom an Award has been made under the Plan.
(s) “Performance Goals”
shall mean any goals the Committee establishes that relate to one
or more of the following with respect to the Company or any one or
more of its Subsidiaries or other business units, measured on an
absolute basis or in terms of growth or reduction: net sales; cost
of sales; revenue; gross income; net income; operating income;
income from continuing operations; earnings (including before
taxes, and/or interest and/or depreciation and amortization);
earnings per share (including diluted earnings per share); price
per share; cash flow; net cash provided by operating activities;
net cash provided by operating activities less net cash used in
investing activities; net operating profit; ratio of debt to debt
plus equity; return on shareholder equity; return on capital;
return on assets; operating working capital; average accounts
receivable; economic value added; customer satisfaction; operating
margin; profit margin; sales performance; sales quota attainment;
new sales; cross/integrated sales; client engagement; client
acquisition; net promoter score; internal revenue growth; and
client retention. In the case of Awards that the Committee
determines will not be considered “performance based
compensation” under Section 162(m) of the Code, the
Committee may establish other Performance Goals not listed in this
Plan. The Performance Goals may include a threshold level of
performance below which no payment will be made (or no vesting will
occur), levels of performance at which specified payments will be
paid (or specified vesting will occur), and a maximum level of
performance above which no additional payment will be made (or at
which full vesting will occur).
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(t) “Performance Stock”
shall mean shares of Common Stock granted to a Participant by the
Committee pursuant to Section 7 hereof, which are subject to
restrictions related to the satisfaction of pre-established
performance goals.
(u) “Performance Unit”
shall mean a right to receive cash or one share of Common Stock (or
a combination of cash and Common Stock) granted to a Participant
pursuant to Section 7 hereof, which is conditioned upon the
satisfaction of pre-established performance goals.
(v) “Plan” shall mean
the Metavante 2007 Equity Incentive Plan.
(w) “Restricted Stock”
shall mean shares of Common Stock granted to a Participant by the
Committee pursuant to Section 7 hereof, which are subject to
restrictions set forth in an Award Agreement.
(x) “Restricted Stock
Unit” shall mean a right to receive one share of Common Stock
granted to a Participant pursuant to Section 7 hereof, subject
to the restrictions, if any, set forth in the Award
Agreement.
(y) “SAR” shall mean a
stock appreciation right with respect to one share of Common Stock
granted to a Participant pursuant to Section 7 hereof, subject
to the restrictions set forth in the Award Agreement.
(z) “Subsidiary” shall
mean any corporation in which the Company or another entity
qualifying as a Subsidiary within this definition owns 50% or more
of the total combined voting power of all classes of stock, or any
other entity (including, but not limited to, partnerships and joint
ventures) in which the Company or another entity qualifying as a
Subsidiary within this definition owns 50% or more of the combined
equity thereof. For purposes of defining whether a Participant is
receiving stock of a “service recipient” under
Section 409A of the Code and the guidance thereunder, this
definition of “Subsidiary” shall be deemed to include
the broadest definition of entities permissible under such
guidance.
(aa) “Substitute Award”
shall mean: (i) an Award of an Option through the conversion
of an option granted to a Participant under an M&I Plan;
(ii) an Award of Restricted
