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Exhibit 4.2
METAVANTE TECHNOLOGIES,
INC.
STOCK PURCHASE RIGHT
AGREEMENT
Stock Purchase Right
Agreement, dated as of November 1, 2007, (as it may be amended
from time to time, this “ Agreement”) between
Metavante Technologies, Inc., a Wisconsin corporation (the “
Company ”), and WPM, L.P., a Delaware limited
partnership (“ Investor ”).
WHEREAS, pursuant to an
Investment Agreement, dated as of April 3, 2007 (the “
Investment Agreement ”) among the Company,
Marshall & Ilsley Corporation, a Wisconsin corporation
(“ MI Corp ”), Metavante Corporation, a
Wisconsin corporation, Montana Merger Sub Inc., a Wisconsin
corporation, and Investor, Investor has agreed to acquire, on the
terms and subject to the conditions set forth in the Investment
Agreement, newly issued shares of Class A common stock, par
value $0.01 per share, of the Company, which shares shall be
converted into shares of common stock, par value $0.01 per share,
of the Company (the “ Common Shares ”);
and
WHEREAS, the parties intend
that on the terms and subject to the conditions hereof, Investor
will own 25% of the Common Shares, on a fully diluted basis, upon
consummation of the Share Issuance (as defined in the Investment
Agreement) and the purchase of all the Subject Shares, and are
entering into this Agreement in furtherance of that
connection;
WHEREAS, this Agreement shall
be effective as of the Closing Date of the Investment Agreement
(the “ Effective Time ”).
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 “ Purchase Right
”) 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 as of immediately following the
Distribution, subject to reduction, if any, pursuant to
Section 3.1(b) hereof. Immediately prior to the Effective
Time, there were (i) options to purchase 3,833,566 shares of
common stock of MI Corp. outstanding that will be converted into
Subject Employee Options pursuant to Section 6.2(a) of the
Employee Matters Agreement and (ii) options to purchase
1,898,750 shares of common stock of MI Corp. outstanding that will
be converted into Subject Employee Options pursuant to
Section 6.2(c) of the Employee Matters Agreement (the options
referred to in clause (i) and (ii) being referred to
collectively herein as the “ Applicable MI Options
”). Within five business days after the determination of the
number of Subject Employee Options into which the Applicable MI
Options are convertible pursuant to the Employee Matters Agreement,
the Company shall deliver to Investor a schedule setting forth,
with respect to each Subject Employee Option into which the
Applicable MI Options were converted pursuant to the Employee
Matters Agreement, the expiration date, exercise price and number
of Common Shares underlying such Subject Employee
Option.
2. Expiration Date .
In no event may the Purchase Right 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 Section 3.1(b)) have been
purchased by the Investor or (iii) ten years from the date
hereof, 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 ”).
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 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.
(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 Purchase Right shall
automatically be deemed exercised to purchase a whole number of
Subject Shares equal to 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 Subject Shares (each such Subject Employee
Option, an “ In-the Money Option ”) and for an
aggregate Purchase Price equal to 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 purchase shall 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 deliver to the Company a notice (the “ Cash Payment
Notice ”) electing to pay such Purchase Price by a Cash
Payment, in which case the Cash Payment shall be made on the same
date the Cash Payment Notice is delivered to the Company. In the
event the Cash Payment Notice is not given and/or such payment is
not so
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made with respect to any
Quarterly Notice, such Purchase Price shall be paid by the Company
withholding from the number of Subject Shares to be delivered to
the Investor a number of Subject Shares having an aggregate Fair
Market Value, determined as of the close of business on the
business day immediately before the date of purchase, equal to such
Purchase Price, 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. Any fraction of
a Subject Share which would be required to pay such Purchase Price
shall be disregarded and the remaining amount due shall be paid in
cash by the Investor. Upon the purchase of any Subject Shares
pursuant to this Section 3.2(a), the number of Subject Shares
remaining shall be reduced by the number of Subject Shares so
purchased. 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 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 on the date of the Distribution, but not any
Common Shares that it thereafter acquired in excess of such Common
Shares, it may exercise the Purchase Right for a whole number of
Subject Shares equal to the applicable Acceleration Subject Shares
and for a purchase price equal to the related Acceleration Purchase
Price, 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, the dates of
sales thereof, shall certify that such Notice is being given in
accordance with Section 3.2(b), and shall specify whether the
Investor wishes to pay the Purchase Price by a Cash Payment or
through the Company withholding from the Subject Shares to be
delivered to the Investor a number of Subject Shares having an
aggregate Fair Market Value, determined as of the date the
Acceleration Notice is given, equal to the aggregate 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 of its calculation of the number of Acceleration Subject
Shares being purchased by the Investor pursuant to such
Acceleration Notice. In the event that Investor elected 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
(i) any event causing the simultaneous acceleration of the
vesting, or automatic exercise, of all the Subject Employee Options
or (ii) a merger or other business combination involving the
Company in which the Common Shares are converted into the right to
receive cash in exchange for such Common Shares, the Purchase Right
shall automatically be deemed exercised for all Subject Shares then
still subject to the Purchase Right. The Purchase Price shall be an
amount equal to the related Acceleration Purchase Price. Such
Purchase Price shall be paid by the Company withholding from the
number of Subject Shares to be delivered to the Investor a number
of Subject Shares having
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an aggregate Fair Market
Value, determined as of three business days before the date of such
acceleration, equal to such Purchase Price. Any fraction of a
Subject Share which would be required to pay such Purchase Price
shall be disregarded and the remaining amount due shall be paid in
cash by the Investor. 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 Subject Share shall be delivered until
the full purchase price therefore has been paid. Notwithstanding
anything to the contrary contained in this Agreement, the Company
shall have no obligation to issue any fraction of a Subject
Share
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