Exhibit 10.2
FIDELITY NATIONAL INFORMATION
SERVICES, INC.
STOCK PURCHASE RIGHT
AGREEMENT
Stock Purchase Right Agreement,
dated as of March 31, 2009 (as it may be amended from time to
time, this “ Agreement ”) among Fidelity
National Information Services, Inc., a Georgia corporation (the
“ Company ”), WPM, L.P., a Delaware limited
partnership (the “ Investor ”), and solely for
the purpose of Sections 5.1, 5.8 and 5.10, Metavante Technologies,
Inc., a Wisconsin corporation (“ Metavante
”).
WHEREAS, concurrently with the
execution of this Agreement, the Company, Cars Holdings, LLC, a
Delaware limited liability company and a direct, wholly owned
subsidiary of the Company (“ Merger Sub ”), and
Metavante are entering into an Agreement and Plan of Merger
(“ Merger Agreement ”), which provides, subject
to Section 1.1 of the Merger Agreement, for the merger (the
“ Merger ”) of Metavante with and into Merger
Sub, pursuant to which all of the outstanding capital stock of
Metavante will be converted into the right to receive shares of
capital stock of the Company, as set forth in the Merger
Agreement;
WHEREAS, as of the date hereof,
Investor owns shares of common stock of Metavante and is a party to
an Amended and Restated Stock Purchase Right Agreement, dated as of
August 21, 2008, between Metavante and Investor (the “
Metavante Stock Purchase Right Agreement
”);
WHEREAS, as a condition to, among
other things, Investor’s willingness to enter into and
perform its obligations under that certain Support Agreement, dated
as of the date hereof, among the Company, Merger Sub, Investor and
Metavante, the Company has agreed to enter into this Agreement and
the Shareholders Agreement; and
WHEREAS, upon consummation of the
Merger, the Investor will own shares of common stock, par value
$0.01 per share, of the Company (the “ Common Shares
”), and the Investor and the Company are entering into this
Agreement in furtherance of that connection;
WHEREAS, except for Sections 2, 4.9,
5.1 through 5.8, 5.10 and 5.11, which shall be effective upon the
date set forth above, this Agreement shall be effective as of the
date of the effective time of the Merger pursuant to the terms of
the Merger Agreement (the “ Effective Time ”);
and
WHEREAS, the actions contemplated
herein on behalf of each of the Company and Investor have been duly
and validly authorized by all necessary action and no other
proceedings on the part of the Company or Investor are necessary to
consummate the actions contemplated herein.
NOW, THEREFORE, in consideration of
the foregoing and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties do hereby agree as follows:
1. Purchase Right . Upon the
terms and subject to the conditions set forth in this Agreement,
the Company hereby grants to the Investor the right to purchase
from the Company the Subject Shares at the Purchase Prices;
provided , however , that notwithstanding anything to
the contrary contained in this Agreement, the total number of
Subject Shares that may be
purchased under this Agreement shall equal
one-third of the aggregate number of Common Shares that may be
issued under the Subject Employee Options, subject to reduction, if
any, pursuant to Section 3.1(b) hereof. As of the date hereof,
there were (i) options to purchase 6,827,536 shares of common
stock of Metavante outstanding that (subject to reduction pursuant
to Section 3.1(b) of the Metavante Stock Purchase Right
Agreement prior to the Effective Date) will be converted into
Subject Employee Options pursuant to the terms of the Merger
Agreement (such options, the “ Applicable Metavante
Options ”). Within five business days after the
determination of the number of Subject Employee Options into which
the Applicable Metavante Options are convertible pursuant to
the Merger Agreement (such date of determination to be as soon as
reasonably practicable after the Closing Date), the Company shall
deliver to Investor a schedule setting forth, with respect to each
Subject Employee Option into which the Applicable Metavante
Options were converted pursuant to the Merger Agreement, the
expiration date, exercise price and number of Common Shares
underlying such Subject Employee Option.
2. Expiration Date;
Effectiveness . Subject to Section 5.9, in no event may
the Purchase Right (as defined in Section 3.2(a)) be
exercised, in whole or in part, after the earlier of (i) the
date that is forty-five days after the Quarterly Notice (as defined
herein) is given in respect of the calendar quarter in which all
Subject Employee Options expire, (ii) the date that all
Subject Shares (as they may have been reduced pursuant to Sections
3.1(b) or 3.2(b)) have been purchased by the Investor or
(iii) ten years from November 1, 2007, unless the Board
shall extend the expiration date of any of the Subject Employee
Options beyond the end of such ten-year period, in which case the
Purchase Right shall be similarly extended (the “
Expiration Date ”). Except with respect to this
Section 2, Section 4.9, Sections 5.1 through 5.8,
Section 5.10 and Section 5.11 which shall be effective on
the date first set forth above, this Agreement will be
automatically effective as of the Effective Time and will continue
in effect thereafter until the Expiration Date. In the event the
Merger Agreement is terminated in accordance with its terms prior
to the Closing Date, this Agreement shall automatically thereafter
terminate and be of no further force and effect; provided, however,
this Section 2 and Section 5.10 shall remain in effect
pursuant to its terms and Section 5.1 shall remain in effect
with respect to Investor and Metavante .
3. Exercise of Purchase Right
.
3.1. Quarterly Notice and
Reduction of Right .
(a) No later than the last day of
each month following the end of each calendar quarter prior to the
Expiration Date, the Company shall give the Investor a notice
setting forth the following: (i) the aggregate number of
Common Shares issued during such quarter upon the exercise of
Subject Employee Options, (ii) the aggregate exercise price of
such Subject Employee Options for such Common Shares, and
(iii) the aggregate number and exercise price of Subject
Employee Options that expired unexercised or were forfeited during
such quarter (the “ Quarterly Notice ”). The
Quarterly Notice shall be accompanied by a schedule setting forth,
in the form of tranches of the same exercise dates and exercise
prices, all unexercised Subject Employee Options as of the end of
such quarter.
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(b) The Subject Shares shall be
automatically reduced by a number equal to one-third of the Common
Shares issuable (x) under Subject Employee Options that expire
unexercised or are forfeited and (y) under Out of the Money
Options as provided in Sections 3.2(a) and 3.2(c).
3.2. Method of Exercise
.
(a) The Investor
shall have a purchase right (including the right to purchase via a
Cash Payment, the “ Purchase Right ”) to
purchase a whole number of Common Shares equal to the difference
(rounded down to the nearest whole share) between
(i) one-third of the aggregate number of Common Shares issued
under the Subject Employee Options during each calendar quarter the
exercise prices of which equal or are less than the Fair Market
Value as of the date of exercise of the Purchase Right for such
Common Shares (each such Subject Employee Option, an “
In-the-Money Option ”; but for clarity, when
determining such “In-the-Money Options”, the reference
to “one-third” in this clause (i) shall be
omitted), and (ii) the quotient of (A) one-third of the
aggregate exercise prices of such In-the-Money Options for such
Common Shares, in each case as specified in the Quarterly Notice
with respect to such quarter (it being understood that this number
shall not be reduced for any such Common Shares that are withheld
from employees to pay the exercise price of such Subject Employee
Options, or any withholding taxes due, pursuant to net vesting
settlement and similar provisions) (such number as derived in this
subclause (A), the “ Exercise Price Equivalent
”), divided by (B) the Fair Market Value of a Common
Share, determined as of the close of business on the business day
immediately before the date of purchase, which date shall also be
deemed the date of exercise of the Purchase Right for purposes of
determining the In-the-Money Options and Out of the Money Options,
for a Purchase Price per share equal to $0.01. Such purchase shall,
subject to Section 5.9, take place 45 days following the date
the Quarterly Notice is given (or the first business day following
such 45 th day, if such day is not a
business day). Following the Quarterly Notice and prior to such
date of purchase, the Investor may in lieu of the foregoing
purchase right, deliver to the Company a notice (the “
Cash Payment Notice ”) electing to purchase by a Cash
Payment a number of Common Shares equal to one-third of the
aggregate number of Common Shares issued under the In-the-Money
Options for an aggregate Purchase Price equal to the Exercise Price
Equivalent, in which case the Cash Payment shall be made on the
same date the Cash Payment Notice is delivered to the Company;
provided that, if the Investor exercises its right to make
the Cash Payment, such right shall also be included in the term
“Purchase Right” for purposes of this Agreement. Upon
the purchase of any Common Shares pursuant to this
Section 3.2(a) or Section 3.3, the number of Subject
Shares remaining shall be reduced by the number of Common Shares
that would have been purchased assuming the Investor had purchased
using the Cash Payment. The Subject Shares shall also be reduced by
a number equal to one-third of the number of Common Shares issued
during each calendar quarter pursuant to Out of the Money
Options.
(b) In the event the Investor sells,
transfers, assigns or otherwise disposes of (whether by operation
of law or otherwise) (but only in the event that the Purchase Right
is not accelerated under Section 3.2(c) in connection with
such event), to
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a third party that is not an
affiliate of the Investor or distributes to its limited partners
(collectively, “ Transfers ”), any of the Common
Shares it acquired pursuant to the terms of the Merger Agreement,
but not any Common Shares that it thereafter acquired in excess of
such Common Shares (it being understood that in connection with any
such sale, transfer, assignment or disposition the Investor shall
be deemed to have first sold, transferred, assigned or disposed of
the Common Shares it acquired pursuant to the terms of the Merger
Agreement until the Investor has sold, transferred, assigned or
disposed of all such Common Shares), it may exercise the Purchase
Right for a whole number of Common Shares equal to the difference
(rounded down to the nearest whole share) between (i) the
number of applicable Acceleration Subject Shares, and (ii) the
quotient of (A) the related Acceleration Purchase Price,
divided by (B) the Fair Market Value of a Common Share,
determined as of the date the Acceleration Notice is given, for a
Purchase Price per share equal to $0.01, by delivering to the
Company an irrevocable exercise notice within 10 days of such sale
(the “ Acceleration Notice ”). The Acceleration
Notice shall set forth the number of Common Shares that have been
sold by the Investor and the dates of sales thereof and shall
certify that such Acceleration Notice is being given in accordance
with Section 3.2(b), and shall specify whether, in lieu of the
foregoing Purchase Right, the Investor wishes to elect to purchase
by a Cash Payment the number of applicable Acceleration Subject
Shares for an amount equal to the Acceleration Purchase Price.
Within 10 business days of receiving the Acceleration Notice, the
Company shall give the Investor notice (the “ Acceleration
Details Notice ”) of the Acceleration Purchase Price
applicable to the Acceleration Notice as well as the
Company’s calculation of the number of Acceleration Subject
Shares being purchased by the Investor pursuant to such
Acceleration Notice. In the event that Investor elects to pay the
Acceleration Purchase Price in cash, it shall deliver the
Acceleration Purchase Price specified in the Acceleration Notice no
later than three days following the giving of such Acceleration
Details Notice. Upon the purchase of any Acceleration Subject
Shares pursuant to this Section 3.2(b), the number of Subject
Shares remaining shall be reduced by the number of Acceleration
Subject Shares so purchased.
(c) Immediately prior to an all-cash
merger or other business combination involving the Company in which
the Common Shares are converted into the right to receive only cash
in exchange for such Common Shares, the Purchase Right shall
automatically be deemed exercised for the number of Common Shares
equal to the difference (rounded down to the nearest whole share)
between (i) all Subject Shares then still subject to the
Purchase Right and (ii) the quotient of (A) the related
Acceleration Purchase Price, divided by (B) the Fair Market
Value of a Common Share, determined as of three business days
before the date of such acceleration, for a Purchase Price per
share equal to $0.01. The Subject Shares shall be reduced by a
number equal to one-third of the number of Common Shares subject to
Out of the Money Options as of the date of an acceleration pursuant
to this Section 3.2(c).
(d) The Purchase Right may be
exercised by the Investor solely as and to the extent expressly set
forth in this Section 3.2. In no event may the Purchase Right
be exercised after it terminates as set forth in Section 2. No
certificate representing a Common Share shall be delivered to the
Investor until the full purchase price therefore
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has been paid. Notwithstanding
anything to the contrary contained in this Agreement, the Company
shall have no obligation to issue any fraction of a Common Share
under this Agreement and all of such fractional shares shall be
disregarded.
3.3. Metavante
Stock Purchase Right Agreement . In addition to the rights set
forth in this Agreement, in connection with the first Quarterly
Notice required to be delivered by the Company following the
Closing Date, the Company shall deliver to the Investor a schedule
setting forth the aggregate Closing Metavante Subject Shares,
including (i) a computation of the In-the-Money Options (as
defined in the Metavante Stock Purchase Right Agreement) and
(ii) substantially the same information regarding the Closing
Metavante Subject Shares as the Company is required to deliver in
the Quarterly Notice. In addition to any Purchase Rights that the
Investor has related to such first Quarterly Notice, Investor shall
have a right (the “ Metavante Purchase Right ”)
to purchase the Closing Metavante Subject Shares for a cash
purchase price per share equal to $0.01; provided ,
however , in lieu of the foregoing purchase right, Investor
may deliver to the Company a notice electing to purchase by a Cash
Payment one-third of the aggregate number of Metavante In-the-Money
Option Shares for an aggregate purchase price equal to one-third of
the aggregate exercise prices of such Metavante In-the-Money Option
Shares. Such purchase shall, subject to Section 5.9, take
place 45 days following the date the first Quarterly Notice is
given (or the first business day following such 45
th
day, if such day is
not a business day). Exhibit A hereto sets forth, for
illustrative purposes only, an example of the computation of the
Metavante Purchase Right pursuant to this
Section 3.3.
4. Additional Terms and
Conditions of Purchase Right .
4.1. Nontransferability of
Purchase Right . The Purchase Right and the Metavante Purchase
Right are exercisable only by the Investor. Neither the Purchase
Right nor the Metavante Purchase Right may be sold, transferred,
assigned, pledged, hypothecated, encumbered or otherwise disposed
of (whether by operation of law or otherwise) or be subject to
execution, attachment or similar process. Any attempt to so sell,
transfer, assign, pledge, hypothecate, encumber or otherwise
dispose of the Purchase Right or the Metavante Purchase Right,
shall be null and void.
4.2. Investment
Representation .
(a) The Investor hereby represents
and warrants that (a) any Common Shares purchased upon
exercise of either of the Purchase Right or the Metavante Purchase
Right will be purchased for investment and not with a view to the
distribution thereof within the meaning of the Securities Act of
1933, as amended (the “ Securities Act ”),
unless such purchase has been registered under the Securities Act
and any applicable state securities laws; (b) any subsequent
sale of any such shares shall be made either pursuant to an
effective registration statement under the Securities Act and any
applicable state securities laws, or pursuant to an exemption from
registration under the Securities Act and such state securities
laws; and (c) if requested by the Company, the Investor shall
submit a written statement, in form reasonably satisfactory to the
Company, to the effect that such representation (x) is true
and correct as of the date of purchase of any shares hereunder or
(y) is true and correct as of the date of any sale of any such
shares, as applicable.
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(b) All Common Shares issued under
this Agreement and the shares issued in connection with the
Metavante Purchase Right shall bear the legend specified in
Section 6.3 of the Shareholders Agreement only for the time
period specified in such Section 6.3.
4.3. Adjustment . In the
event of any adjustment (i) in the Common Shares issuable upon
exercise of Subject Employee Options or the Metavante Purchase
Right or (ii) to the terms of any of the Subject Employee
Options, including the exercise prices, in each case including as a
result of stock split, stock dividend, recapitalization,
reorganization, merger, consolidation, combination, exchange of
shares, liquidation, spin-off or other similar change in
capitalization or event (for the avoidance of doubt, other than the
transactions contemplated by the Merger Agreement), the Subject
Shares and the shares issuable in connection with the Metavante
Purchase Right and the terms and conditions thereof (including
without limitation the Purchase Price thereof) shall be equitably
adjusted by the Board in the same manner as the Subject Employee
Options.
4.4. Compliance with Applicable
Law . The Purchase Right and the Metavante Purchase Right are
subject to the condition that if the listing, registration or
qualification of the Subject Shares or the shares issuable in
connection with the Metavante Purchase Right upon any securities
exchange or under any law, or the consent or approval of any
governmental body, or the taking of any other action is necessary
or reasonably desirable as a condition of, or in connection with,
the purchase or delivery of Subject Shares or the shares issuable
in connection with the Metavante Purchase Right, the Purchase Right
or the Metavante P
