SEPARATION AGREEMENT

Exhibit 2.02

Execution Version

SEPARATION AGREEMENT

among

METAVANTE HOLDING COMPANY

METAVANTE CORPORATION,

NEW M&I CORPORATION

and

MARSHALL & ILSLEY CORPORATION

Dated as of April 3, 2007

TABLE OF CONTENTS

 

SCHEDULES

 

SEPARATION AGREEMENT

This SEPARATION AGREEMENT (this “ Agreement ”), dated as of April 3, 2007, is among Metavante Holding Company, a Wisconsin corporation (“ MVT Holding ”), Metavante Corporation, a Wisconsin corporation (“ MVT Corp. ”) (MVT Holding and MVT Corp., collectively, the “ MVT Parties ”), Marshall & Ilsley Corporation, a Wisconsin corporation (“ MI Corp. ”), and New M&I Corporation, a Wisconsin corporation (“ New MI Corp. ”) (MI Corp. and New MI Corp., collectively, the “ MI Parties ”).

W I T N E S S E T H

WHEREAS, the MVT Parties, MI Corp., and Montana Merger Sub Inc., a Wisconsin corporation and a wholly-owned subsidiary of MVT Holding, have entered into an Investment Agreement, dated as the date hereof (the “ Investment Agreement ”) with, WPM, L.P., a Delaware limited partnership (“ Investor ”) pursuant to which Investor will purchase shares of Class A common stock of MVT Holding, par value $0.01 per share, (“ MVT Holding Class A Common Stock ”) for $625 million (the “ Equity Investment ”);

WHEREAS, in connection with the transactions contemplated by the Investment Agreement, one or more of the members of the MVT Group will incur $1.75 billion of indebtedness (the “ Debt Financing ”);

WHEREAS, the Board of Directors of MI Corp. (the “ MI Corp. Board ”) has determined it is in the best interests of MI Corp. and its shareholders to effect the transactions contemplated by this Agreement and the Investment Agreement;

WHEREAS, subject to the terms and conditions of this Agreement, MVT Holding shall distribute to the holders of shares of common stock of MVT Holding, par value $0.01 per share, (“ MVT Holding Common Stock ”), other than the shares held in the treasury of MVT Holding, on a pro rata basis as provided for herein, all of the issued and outstanding shares of New MI Corp. common stock, par value $0.01 per share, (“ New MI Corp. Common Stock ”) (the “ Distribution ”); and

WHEREAS, the parties to this Agreement intend that the MI Merger (as hereinafter defined) and the MI Conversion (as hereinafter defined) together qualify as a reorganization within the meaning of Section 368(a)(1)(F) of the Code, the MI LLC Contribution and the MI Cash Contribution followed by the Distribution qualifies as a reorganization within the meaning of Section 368(a)(1)(D) of the Code, and that the Distribution qualifies as a distribution eligible for nonrecognition under Sections 355 and 361(c) of the Code.

NOW, THEREFORE, in consideration of the premises and of the respective agreements and covenants contained in this Agreement, the parties hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.01 Definitions .

(a) As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

“ Administrative Services Agreement ” means the Administrative Services Agreement, dated as of the date hereof, among the MVT Parties and the MI Parties.

“ Affiliate ” means, as to any Person, any other Person which, directly or indirectly, controls, or is controlled by, or is under common control with, such Person and, with respect to the MVT Parties, following the Distribution Time, includes the Investor and any Affiliates of the Investor; provided , however , that for purposes of the Transaction Agreements, following the Distribution Time, no member of either Group shall be deemed to be an Affiliate of any member of the other Group. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise.

“ Agreement ” has the meaning set forth in the first paragraph of this Agreement.

“ Ancillary Agreements ” means, collectively, the Employee Matters Agreement, the Tax Allocation Agreement, the Administrative Services Agreement and the other agreements, if any, entered into or to be entered into between or among any of the MI Parties and any of the MVT Parties in connection with the Distribution (other than the Investment Agreement).

“ Applicable Law ” has the meaning set forth in the Investment Agreement.

“ Benefiting Person ” has the meaning set forth in Section 5.04 .

“ Claim Notice ” has the meaning set forth in Section 4.04 .

“ Claims Administration ” means the processing of claims made under Policies, including the reporting of claims to the insurance carrier, management and defense of claims, and providing for appropriate releases upon settlement of claims.

“ Claims Made Policies ” has the meaning set forth in Section 5.01(b) .

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Contract ” means any loan or credit agreement, note, instrument, mortgage, bond, indenture, real estate or other lease or sublease, benefit plan, license, sublicense, memorandum of understanding, sales order, purchase order, open bid or other contract,

 

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agreement or obligation, whether written or oral, express or implied, that is legally binding on any Person or any part of such Person’s property, in each case, including all amendments, modifications and supplements thereto and waivers and consents thereunder.

“ Continuing Business Agreements ” means any Contract by any Member of the MI Group, on the one hand, and any member of the MVT Group, on the other hand, contemplated by the Investment Agreement and the Transaction Agreements not to terminate as of the Distribution Date or any Contract contemplated by the Investment Agreement and the Transaction Agreements to be entered into, or that is otherwise entered into, prior to the Distribution Time, by any member of the MVT Group, on the one hand, and any member of the MI Group, on the other hand, including without limitation the Contracts listed on Schedule 1.01(a) .

“ Data and Records ” means financial, accounting, corporate, operating, design, manufacturing, test and other data and records (in each case, in whatever form or medium, including electronic media), including books, records, notes, sales and sales promotional material and data, advertising materials, creative materials, credit information, cost and pricing information, customer, supplier and agent lists, other records pertaining to customers (prospective or current), business plans, reference catalogs, payroll and personnel records and procedures, research and development files, sales order files, litigation files, minute books, share ledgers, share transfer records and other similar data and records.

“ Debt Financing ” has the meaning set forth in the recitals to this Agreement.

“ Distribution ” has the meaning set forth in the recitals to this Agreement.

“ Distribution Agent ” means the Exchange Agent as defined in the Investment Agreement.

“ Distribution Agent Agreement ” has the meaning set forth in Section 3.02 .

“ Distribution Date ” means the date determined by the MVT Holding Board in accordance with Section 3.01 as the date as of which the Distribution will be effective. The Distribution Date will be the MVT Holding Record Date.

“ Distribution Shares ” means the aggregate number of shares of New MI Corp. Common Stock constituting the Distribution.

“ Distribution Time ” means the time on the Distribution Date at which the Distribution is effective as determined by the MVT Holding Board.

“ Employee Matters Agreement ” means the Employee Matters Agreement, dated as of the date hereof, among the MVT Parties and the MI Parties.

“ Equity Investment ” has the meaning set forth in the recitals to this Agreement.

“ Former Business ” means any corporation, partnership, entity, division, business unit or business within the definition of Rule 11-01(d) of Regulation S-X (in each case, including

 

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any assets and liabilities comprising the same) that has been sold, conveyed, assigned, transferred or otherwise disposed of or divested (in whole or in part) or the operations, activities or production of which has been discontinued, abandoned, completed or otherwise terminated (in whole or in part).

“ GAAP ” means United States generally accepted accounting principles, consistently applied.

“ Group ” means the MVT Group or the MI Group, as applicable.

“ Indemnifiable Losses ” means any and all losses, Liabilities, claims, damages, deficiencies, obligations, fines, payments, Taxes, Liens, costs and expenses, in each case, matured or unmatured, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, known or unknown, whenever arising and whether or not resulting from Third Party Claims (including the costs and expenses of any and all actions or proceedings; all amounts paid in connection with any demands, assessments, judgments, settlements and compromises relating thereto; interest and penalties with respect thereto; reasonable out-of-pocket expenses and reasonable attorneys’, accountants’ and other experts’ fees and expenses reasonably incurred in investigating, preparing for or defending against any such actions or proceedings or in asserting, preserving or enforcing an Indemnified Party’s rights hereunder; and any losses that may result from the granting of injunctive relief as a result of any such actions or proceedings).

“ Indemnified Party ” has the meaning set forth in Section 4.04 .

“ Indemnitor ” has the meaning set forth in Section 4.04 .

“ Information ” means all records, books, contracts, instruments, computer data and other data and information (in each case, in whatever form or medium, including electronic media).

“ Investment Agreement ” has the meaning set forth in the recitals to this Agreement.

“ Investor ” has the meaning set forth in the recitals to this Agreement or shall mean any assign of Investor permitted by the Investment Agreement.

“ Liabilities ” means any and all claims, debts, losses, payments, liabilities, guarantees, commitments, causes of action and obligations of whatever nature, in each case, whether fixed, contingent or absolute, matured or unmatured, liquidated or unliquidated, accrued or not accrued, known or unknown, due or to become due, whenever or however arising (including those arising out of any Contract or tort, whether based on negligence, strict liability or otherwise) and whether or not the same would be required by generally accepted accounting principles to be reflected as a liability in financial statements or disclosed in the notes thereto, including all costs and expenses relating thereto.

“ MI Business ” means (a) the businesses engaged in prior to the Distribution Time by the MI Group; (b) Former Businesses of the MI Group; and (c) activities related primarily to or in furtherance of the foregoing.

 

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“ MI Cash Contribution ” has the meaning set forth in the Investment Agreement.

“ MI Conversion ” has the meaning set forth in the Investment Agreement.

“ MI Corp. ” has the meaning set forth in the recitals to this Agreement.

“ MI Corp. Board ” has the meaning set forth in the recitals to this Agreement.

“ MI Financial Instruments ” means all credit facilities, guaranties, foreign currency forward exchange contracts, letters of credit and similar instruments primarily related to the MI Business under which any member of the MVT Group has any primary, secondary, contingent, joint, several or other Liability, including those set forth on Schedule 1.01(b) .

“ MI Group ” means New MI Corp., MI Corp., MI LLC and each of the Subsidiaries of MI LLC (after giving effect to the MVT Distribution).

“ MI Group Assets ” has the meaning set forth in Section 5.03(a) .

“ MI Indemnified Parties ” means each member of the MI Group and each of their respective Representatives and each of the heirs, executors, successors and assigns of any of the foregoing.

“ MI Liabilities ” means (a) all Liabilities of any member of the MI Group under, or for which any member of the MI Group is expressly made responsible pursuant to the Investment Agreement or any Transaction Agreement to which it is or becomes a party, including the breach by any member of the MI Group of any agreement or covenant contained therein that does not by its express terms expire at or prior to the Distribution Time; (b) all Liabilities of any member of the MI Group that are not MVT Liabilities; (c) all Liabilities of any member of the MVT Group existing immediately prior to or at the Distribution Time that are not MVT Liabilities and (d) all Liabilities of any member of the MI Group or the MVT Group with respect to indebtedness for borrowed money existing immediately prior to the Distribution Time (other than in the case of the MVT Group, the Debt Financing), in the case of each of clauses (a)  and (b) , regardless of whether such Liability existed prior to, at or after the Distribution Time.

“ MI LLC ” has the meaning set forth in the Investment Agreement.

“ MI LLC Contribution ” has the meaning set forth in the Investment Agreement.

“ MI Merger ” has the meaning set forth in the Investment Agreement.

“ MI Parties ” has the meaning set forth in the first paragraph of this Agreement.

“ MI Sell-off Period ” has the meaning set forth in Section 5.02(d) .

“ MI Subsidiaries ” means each direct and indirect Subsidiary of MI Corp. and/or New MI Corp. other than members of the MVT Group.

“ MI Trademarks ” has the meaning set forth in Section 5.02(c) .

 

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“ MVT Cash ” means the actual amount of cash and cash equivalents (including marketable securities and short term investments) on hand in all accounts owned by a member of the MVT Group with any financial institution, other than cash held for the account of any other Person.

“ MVT Corp. ” has the meaning set forth in the first paragraph of the Agreement.

“ MVT Business ” means (a) the businesses engaged in prior to the Distribution Time by the MVT Group and that constitute MI Corp.’s Metavante Corporation segment for reporting purposes as listed in the latest Annual Report on Form 10-K of MI Corp. included in the MI Corp. Filed SEC Reports; (b) Former Businesses of the MVT Group; and (c) activities primarily related to or in furtherance of the foregoing.

“ MVT Distribution ” means the distribution by MI LLC of the common stock, par value $0.01 per share, of MVT Corp. to MVT Holding.

“ MVT Distribution Time ” means the time at which the distribution by MI LLC of the common stock, par value $0.01 per share, of MVT Corp. to MVT Holding is consummated.

“ MVT Financial Instruments ” means all credit facilities, guaranties, foreign currency forward exchange contracts, letters of credit and similar instruments primarily related to the MVT Business under which any member of the MI Group has any primary, secondary, contingent, joint, several or other Liability, including those set forth on Schedule 1.01(c) .

“ MVT Group ” means MVT Holding, MVT Corp. and each of the MVT Subsidiaries.

“ MVT Group Assets ” has the meaning set forth in Section 5.03(b) .

“ MVT Holding ” has the meaning set forth in the first paragraph of this Agreement.

“ MVT Holding Board ” means the Board of Directors of MVT Holding or a duly authorized committee thereof.

“ MVT Holding Class A Common Stock ” has the meaning set forth in the recitals to this Agreement.

“ MVT Holding Common Stock ” has the meaning set forth in the recitals to this Agreement.

“ MVT Holding Record Date ” means the date set by the MVT Holding Board to determine holders of record of MVT Holding Common Stock entitled to receive the Distribution. The MVT Holding Record Date will be the close of business on the Closing Date.

 

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“ MVT Indemnified Parties ” means each member of the MVT Group and each of their respective Representatives and each of the heirs, executors, successors and assigns of any of the foregoing.

“ MVT Liabilities ” means (a) all Liabilities of any member of the MVT Group under, or for which any member of the MVT Group is expressly made responsible pursuant to the Investment Agreement or any Transaction Agreement to which it is or becomes a party, including the breach by any member of the MVT Group of any agreement or covenant contained therein that does not by its express terms expire at or prior to the Distribution Time; (b) all Liabilities of any member of the MVT Group to the extent based upon, arising out of or resulting from the MVT Business; (c) all Liabilities of any member of the MI Group to the extent based upon, arising out of or resulting from the MVT Business (other than Liabilities expressly assumed or retained by the MI Parties pursuant to the Investment Agreement or the Transaction Agreements), in the case of each of clauses (a)  through (c) , regardless of whether such Liability existed prior to, at or after the Distribution Time.

“ MVT Parties ” has the meaning set forth in the first paragraph of this Agreement.

“ MVT Sell-off Period ” has the meaning set forth in Section 5.02(c) .

“ MVT Subsidiaries ” means each direct and indirect Subsidiary of MVT Corp. and/or MVT Holding other than a member of the MI Group.

“ MVT Trademarks ” has the meaning set forth in Section 5.02(d) .

“ New MI Corp. ” has the meaning set forth in the first paragraph to this Agreement.

“ New MI Corp. Common Stock ” has the meaning set forth in the recitals to this Agreement.

“ Occurrence Basis Policies ” has the meaning set forth in Section 5.01(b) .

“ Person ” means an individual, corporation, limited liability company, partnership, association, joint venture, trust, unincorporated organization, other entity or group (as defined in the Securities Exchange Act of 1934, as amended) including any Governmental Entity.

“ Policies ” means all insurance policies, insurance contracts and claim administration contracts of any kind of any member of the MI Group and their predecessors which were or are in effect at any time at or prior to the Distribution Time (other than insurance policies, insurance contracts and claim administration contracts established in contemplation of the Distribution to cover only the members of the MVT Group after the Distribution Time), including primary, excess and umbrella, commercial general liability, fiduciary liability, product liability, automobile, aircraft, property and casualty, business interruption, directors and officers liability, employment practices liability, workers’ compensation, crime, errors and omissions, special accident, cargo and employee dishonesty insurance policies and captive insurance company arrangements, together with all rights, benefits and privileges thereunder.

 

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“ Privileged Information ” means, with respect to either Group, Information regarding a member of such Group, or any of its operations, employees, assets or Liabilities (whether in documents or stored in any other form or known to its employees or agents) that is or may be protected from disclosure pursuant to the attorney-client privilege, the work product doctrine or other applicable privilege or that a Group is required to keep confidential pursuant to the terms of a Contract with a third Person.

“ Related Party Agreements ” means any Contract between any member of the MI Group, on the one hand, and any member of the MVT Group, on the other hand.

“ Representative ” means, with respect to any Person, any of such Person’s directors, officers, employees, agents, consultants, advisors, accountants, attorneys and representatives.

“ Required Consent ” has the meaning set forth in Section 5.04 .

“ Shared Policies ” means all Policies that include any member of the MVT Group and/or any or all of the MVT Business within the definition of the named insured.

“ Subsidiary ” has the meaning set forth in the Investment Agreement.

“ Tax ” and “ Taxes ” has the meaning set forth in the Investment Agreement.

“ Tax Allocation Agreement ” means the Tax Allocation Agreement, dated as of the date hereof, among the MVT Parties and the MI Parties.

“ Third Party Claim ” has the meaning set forth in Section 4.06(a) .

“ Trade Payables ” means (i) all payables of any member of the MVT Group incurred in the ordinary course of business consistent with past practice for purchases of goods or services from any member of the MI Group, and (ii) all payables of any member of the MI Group incurred in the ordinary course of business consistent with past practice for purchases of goods or services from any member of the MVT Group.

“ Transaction Agreements ” means, collectively, this Agreement and each Ancillary Agreement.

“ Transaction Payables ” means all expenses to be paid by the MVT Parties pursuant to Section 8.05 .

“ Transferring Person ” has the meaning set forth in Section 5.04 .

(b) Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Investment Agreement.

 

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ARTICLE II

ACTIONS PRIOR TO THE DISTRIBUTIONS

Section 2.01 Other Transactions . Prior to the Distribution Time, subject to the terms and conditions of the Investment Agreement, the MVT Parties and the MI Parties shall, and shall cause their respective Subsidiaries to, consummate the transactions set forth in Sections 3.1(a) , (b) , (c) , (d) , (e) , (f) , (g)  and ( h ) of the Investment Agreement, including the MI Merger, the MI Conversion, the MVT Distribution, the MI Cash Contribution, and the MI LLC Contribution in the order set forth therein. Prior to the Distribution Time, the MVT Parties and the MI Parties may, and may cause their respective Subsidiaries to, consummate the transactions set forth on Schedule 2.01 . For the avoidance of doubt, nothing in this Section 2.01 or Schedule 2.01 shall be deemed to limit the ability of the MVT Parties, the MI Parties and their respective Subsidiaries to take the actions they are permitted to take under the Investment Agreement, including under Section 5.1 thereof.

Section 2.02 Capital Structure of New MI Corp. After the transactions described Sections 3.1(a) , (b) , (c) , (d) , (e) , (f) , (g)  and ( h ) of the Investment Agreement and on Schedule 2.01 of this Agreement are effected and prior to the Distribution Time, if necessary, the MVT Parties and the MI Parties shall cause (a) the number of authorized shares of New MI Corp. Common Stock to equal or exceed three times the number of shares of MVT Holding Common Stock issued as of the MVT Holding Record Date and (b) the number of shares of New MI Corp. Common Stock outstanding as of the MVT Holding Record Date to be increased to equal three times the number of shares of MVT Holding Common Stock issued and outstanding as of the MVT Holding Record Date.

Section 2.03 Financial Instruments .

(a) The MI Parties will use their reasonable best efforts to take or cause to be taken all actions, and enter into (or cause their Subsidiaries to enter into) such agreements and arrangements, as shall be necessary to cause, as of the Distribution Time, (i) the removal of members of the MVT Group from all MI Financial Instruments and (ii) the members of the MVT Group to be fully and unconditionally released from all Liabilities in respect of the MI Financial Instruments. It is understood and agreed that all Liabilities in respect of the MI Financial Instruments are MI Liabilities and the MI Parties shall indemnify the members of the MVT Group from any Liabilities suffered thereby arising out of, resulting from or relating to the MI Financial Instruments. Without limiting the foregoing, after the Distribution Time, the MI Parties will not, and will not permit any member of the MI Group to, renew, extend, modify, amend or supplement any MI Financial Instrument in any manner that would increase, extend or give rise to any Liability of a member of the MVT Group under such MI Financial Instrument.

(b) The MVT Parties will use their reasonable best efforts to take or cause to be taken all actions, and enter into (or cause their Subsidiaries to enter into) such agreements and arrangements, as shall be necessary to cause, as of the Distribution Time, (i) the removal of members of the MI Group from all MVT Financial Instruments and (ii) the members of the MI Group to be fully and unconditionally released from all Liabilities in respect of the MVT Financial Instruments. It is understood and agreed that all Liabilities in respect of the MVT

 

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Financial Instruments are MVT Liabilities and the MVT Parties shall indemnify the members of the MI Group from any Liabilities suffered thereby arising out of, resulting from or relating to the MVT Financial Instruments. Without limiting the foregoing, after the Distribution Time, the MVT Parties will not, and will not permit any member of the MVT Group to, renew, extend, modify, amend or supplement any MVT Financial Instrument in any manner that would increase, extend or give rise to any Liability of a member of the MI Group under such MVT Financial Instrument.

(c) The parties’ obligations under this Section 2.03 will continue to be applicable to all MI Financial Instruments and MVT Financial Instruments identified at any time by the MVT Parties or the MI Parties, whether before, at or after the Distribution Time.

Section 2.04 Related Party Agreements; Intercompany Accounts; MVT Cash .

(a) Immediately prior to the Distribution Time, all Related Party Agreements, other than the Investment Agreement and the Transaction Agreements, any Trade Payables, the Transaction Payables and the Continuing Business Agreements, shall automatically terminate.

(b) Effective immediately prior to the Distribution Time, all intercompany receivables, payables and loans (other than any amounts owed under the Investment Agreement, the Transaction Agreements, the Trade Payables, the Continuing Business Agreements and the Transaction Payables) between the members of the MVT Group, on the one hand, and the members of the MI Group, on the other hand, which are listed on Schedule 2.04(b) , shall automatically be cancelled. All Trade Payables shall be promptly paid when due. All Transaction Payables shall be paid as provided in this Agreement and the Investment Agreement.

(c) Pursuant to Section 3.1 of the Investment Agreement, on the Distribution Date MVT Corp. shall pay the MVT Dividend to MVT Holding and MVT Holding shall make the MI Contribution to New MI Corp. Other than the MI Contribution and except quarterly cash dividends from the MVT Group to the MI Group (such quarterly dividends not to exceed $1,000,000 per quarter), between the date hereof and the Distribution Date, no MVT Group member shall make any dividend, distribution or contribution to capital consisting of assets, cash or cash equivalents to any MI Group member.

(d) At all times after the date hereof and prior to the Distribution Time, the MVT Parties shall cause all members of the MVT Group to collect receivables, pay and discharge payables and other Liabilities and maintain inventory levels, in each case in the ordinary course of business consistent with past practice.

(e) Subject to the restrictions of Applicable Laws or the terms of any applicable Contracts, prior to the Distribution Time, the MI Parties will use their reasonable best efforts to cause each non-U.S. member of the MVT Group to have paid, and have satisfied any withholding obligations with respect to, all interest accrued on obligations owed to any other member of the MVT Group or any member of the MI Group. Subject to the restrictions of Applicable Laws or the terms of any applicable Contracts, the MI Parties will, in the case of any non-U.S. member of the MVT Group, use their reasonable best efforts to cause (i) the actual amount of MVT Cash (including marketable securities and short term investments) on hand in

 

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accounts owned by such non-U.S. member (plus the amount owed to such non-U.S. member by a U.S. member of the MVT Group) not to exceed (ii) the amount of cash reasonably needed to satisfy the needs of the business of such non-U.S. member (plus the amount owed by such non-U.S. member to a U.S. member of the MVT Group), in each case prior to the Distribution Time and to satisfy any withholding in connection with the foregoing in a manner expressed in the first sentence of this Section 2.04(e) .

(f) The MI Group will ensure that, immediately after the Distribution Time, none of the MVT Parties shall have any outstanding indebtedness for borrowed money or be responsible for or be a guarantor of any indebtedness for borrowed money of any other Person who is not a member of the MVT Group, except, in each case, the Debt Financing.

Section 2.05 Resignations; Transfer of Shares Held as Nominee .

(a) Except to the extent provided in the Investment Agreement, MI Corp. will cause all of its employees and directors and all of the employees and directors of each other member of the MI Group to resign, effective not later than immediately prior to the Distribution Time, from all boards of directors or similar governing bodies of any member of the MVT Group on which they serve, and from all positions as officers of any member of the MVT Group in which they serve. Except to the extent provided in the Investment Agreement, and except as provided in the following sentence, the MVT Parties will cause all of their employees and directors and all of the employees and directors of each other member of the MVT Group to resign, effective not later than immediately prior to the Distribution Time, from all boards of directors or similar governing bodies of any member of the MI Group on which they serve, and from all positions as officers of any member of the MI Group in which they serve. The members of the MVT Holding Board shall resign effective as of the Distribution Time.

(b) MI Corp. will cause each of their employees, and each of the employees of the other members of the MI Group, who holds shares or similar evidence of ownership of any member of the MVT Group as nominee for such entity pursuant to the laws of the jurisdiction in which such entity is located to transfer such shares or similar evidence of ownership to the Person so designated by the MVT Parties to be such nominee as of and after the Distribution Time. The MVT Parties will cause each of their employees, and each of the employees of the other members of the MVT Group, who holds shares or similar evidence of ownership of any member of the MI Group as nominee for such entity pursuant to the laws of the jurisdiction in which such entity is located to transfer such shares or similar evidence of ownership to the Person so designated by the MI Parties to be such nominee as of and after the Distribution Time.

(c) Effective no later than immediately prior to the Distribution Time, the MVT Parties will cause each of their employees and each of the employees of the other members of the MVT Group to revoke or withdraw their express written authority, if any, to act on behalf of any member of the MI Group as an agent or representative therefor after the Distribution Time. Effective immediately prior to the Distribution Time, all authority of employees of the MVT Parties and employees of the other members of the MVT Group to act on behalf of any member of the MI Group shall automatically terminate. Effective no later than immediately prior to the Distribution Time, the MI Parties will cause each of their employees and each of the employees of the other members of the MI Group to revoke or withdraw their express written

 

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authority, if any, to act on behalf of any member of the MVT Group as an agent or representative therefor after the Distribution Time. Effective immediately prior to the Distribution Time, all authority of employees of the MI Parties and employees of the other members of the MI Group to act on behalf of any member of the MVT Group shall automatically terminate.

Section 2.06 Other Ancillary Agreements . Subject to the terms and conditions of this Agreement and the Investment Agreement, at or prior to the Distribution Time, each of the MVT Parties and the MI Parties shall execute and deliver to the other the Ancillary Agreements not previously executed and delivered.

ARTICLE III

THE DISTRIBUTIONS

Section 3.01 MVT Holding Record Date and Distribution Date . Subject to the terms and conditions of this Agreement, the MVT Holding Board, in accordance with Applicable Law, shall establish the MVT Holding Record Date and the Distribution Date and any appropriate procedures in connection with the Distribution. Subject to the terms and conditions of this Agreement and in accordance with Applicable Law, the Distribution Date shall be established to be the same as the Closing Date.

Section 3.02 The Distribution Agent . Prior to the Distribution Time and subject to the terms and conditions of this Agreement, MVT Holding shall enter into an agreement with the Distribution Agent providing for, among other things, the transactions described in this Article III (the “ Distribution Agent Agreement ”).

Section 3.03 Delivery of Distribution Shares . Subject to the terms and conditions of this Agreement, at or prior to the Distribution Time, MVT Holding shall deliver to the Distribution Agent for the benefit of each record holder of MVT Holding Common Stock on the MVT Holding Record Date (or, if applicable, any transferee of such holder that purchased such holder’s shares in the “regular way” market), the Distribution Shares (which shall represent all of the outstanding shares of New MI Corp. Common Stock). MVT Holding shall cause the transfer agent for the shares of New MI Corp. Common Stock to instruct the Distribution Agent to hold in trust the appropriate number of such shares of New MI Corp. Common Stock for each holder of record of MVT Holding Common Stock as of the MVT Holding Record Date (or, if applicable, any transferee of such holder that purchased such holder’s shares in the “regular way” market).

Section 3.04 The Distribution . Subject to the terms and conditions of this Agreement, MVT Holding shall instruct the Distribution Agent to effect the Distribution pursuant to the Distribution Agent Agreement to each holder of record of MVT Holding Common Stock on the MVT Holding Record Date (or, if applicable, any transferee of such holder that purchased such holder’s shares in the “regular way” market).

Section 3.05 Cooperation Prior to the Distribution . Prior to the Distribution, the MVT Parties and the MI Parties will use their reasonable best efforts to take all such action as may be necessary or appropriate under the securities or “blue sky” laws of the states or other

 

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political subdivisions of the United States and the securities laws of any applicable foreign countries or other political subdivisions thereof in connection with the transactions contemplated by this Agreement.

Section 3.06 Conditions to the Distribution . The obligation of MVT Holding to consummate the Distribution and the other transactions contemplated by this Agreement is subject to the satisfaction of the following conditions:

(a) each condition to the Investment Agreement shall have been fulfilled or, to the extent permitted under Applicable Law, waived by the party for whose benefit such condition exists; and

(b) the closing of the Equity Investment shall have occurred.

Section 3.07 Waiver of Conditions . None of the conditions set forth in Section 3.06 shall be waived by the MVT Holding Board without the prior written consent of MI Corp.; provided , however , that unless the Investment Agreement has been terminated, none of the conditions set forth in Sections 3.06 shall be waived unless MVT Holding receives the prior written consent of Investor, which shall not be unreasonably withheld, conditioned or delayed.

ARTICLE IV

MUTUAL RELEASE; INDEMNIFICATION

Section 4.01 Mutual Release .

(a) Effective as of the Distribution Time and except as provided in Section 4.01(b) or as otherwise expressly provided in the Transaction Agreements or the Investment Agreement, each of the MVT Parties, on behalf of themselves and each of the other members of the MVT Group, including their successors and assigns, on the one hand, and the MI Parties, on behalf of themselves and each of the other members of the MI Group, including their successors and assigns, on the other hand, hereby releases and forever discharges the members of the other Group and their respective directors, officers and employees (in each case, in their respective capacities as such) and their respective heirs, executors, administrators, successors and assigns, of and from all debts, demands, actions, causes of action, suits, accounts, covenants, contracts, agreements, damages, claims, judgments and Liabilities whatsoever of every name and nature, both in law and in equity, whether direct or derivative, known or unknown, suspected or unsuspected, fixed or contingent, which the releasing party has or ever had or ever will have, which arise out of, result from or relate to events, circumstances or actions taken by such other party occurring or failing to occur or any conditions existing at or prior to the Distribution Time.

(b) Nothing in Section 4.01(a) shall in any way affect or impair the rights of any Person under this Agreement (including Sections 4.02 and 4.03 ), any other Transaction Agreement, the Investment Agreement and any Continuing Business Agreements. In addition, nothing in Section 4.01(a) shall release or discharge any Person from:

(i) any Liabilities or obligations under or resulting from any Continuing Business Agreement;

 

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(ii) any Liability or obligation, assumed, transferred, assigned or allocated to the Group of which such Person is a member in accordance with, or any other Liability of any member of a Group under, this Agreement or any other Transaction Agreement or the Investment Agreement;

(iii) any Liability arising from or relating to the sale, lease, manufacture, construction, provision, or receipt of goods or services, payment for goods, property or services purchased, obtained or used in the ordinary course of business by a member of a Group from a member of the other Group prior to the Distribution Date or any related refund claims; or

(iv) any Liability the release of which would result in the release of any Person other than a member of the MVT Group or the MI Group or their respective directors, officers and employees; provided , however , that the parties agree not to and to cause the other members of their Group not to bring suit against any member of the other Group or any of their respective directors, officers