Exhibit 10.5
REORGANIZATION AGREEMENT
THIS REORGANIZATION AGREEMENT (this "Agreement") is entered into as of July
13, 2000, by and between Xxxxxxxx & Xxxxxx Corporation, a Wisconsin corporation
("M&I"), and Metavante Corporation, a Wisconsin corporation and a wholly owned
subsidiary of M&I ("Metavante"). Certain capitalized terms used herein are
defined in Article I of this Agreement.
RECITALS
WHEREAS, the Board of Directors of M&I has determined that it is in the
best interests of M&I and its shareholders to establish Metavante as a separate
subsidiary and to provide for the separation of the business of M&I and
Metavante;
WHEREAS, M&I and Metavante have entered into the General Assignment and
Assumption Agreement, dated as of July 1, 2000 (the "Separation Date"), pursuant
to which M&I has contributed and assigned to Metavante and Metavante has
received and assumed, the assets and liabilities associated with the Metavante
Business as described therein (the "Assignment and Assumption Agreement");
WHEREAS, M&I currently owns all of the issued and outstanding capital stock
of Metavante;
WHEREAS, Metavante proposes to make an initial public offering ("IPO") of
an amount of its common stock pursuant to a registration statement on Form S-1
pursuant to the Securities Act of 1933, as amended, that, will reduce M&I's
ownership of Metavante to not less than 80.1%;
WHEREAS, in connection with the plan of reorganization described below, M&I
is entitled to a portion of the IPO proceeds which in turn will be transferred
to creditors of M&I;
WHEREAS, M&I currently contemplates that M&I will distribute to the holders
of its common stock all of the shares of Metavante Stock owned by M&I (the
"Distribution") within one year following such IPO, or such shorter time as may
be required in order to have the Distribution qualify as a tax-free
reorganization;
WHEREAS, M&I and Metavante intend that the contribution and assumption of
assets and liabilities and the Distribution will qualify as a tax-free
reorganization under Sections 368(a)(1)(D) and 355 of the Internal Revenue Code
of 1986, as amended (the "Code"), and that this Agreement is intended to be, and
is hereby adopted as, a plan of reorganization under Section 368 of the Code;
and
WHEREAS, the parties intend in this Agreement to set forth the principal
arrangements between them regarding such IPO and Distribution.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. As used in this Agreement, the following terms
will have the following meanings:
"Affiliates" means, with respect to any specified Person, any Person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with such specified Person; provided,
however, that for purposes of this Agreement, (i) M&I and its Subsidiaries
(other than Metavante and its Subsidiaries) shall not be considered Affiliates
of Metavante and (ii) Metavante and its Subsidiaries shall not be considered
Affiliates of M&I.
"Ancillary Agreements" means the following agreements entered into between
M&I and the Metavante: Tax Sharing Agreement, Lease Agreement, Employee Matters
Agreement, Administrative Services Agreement, Outsourcing Agreement, Branch
Automation Agreement, Professional Services Agreement, Registration Rights
Agreement, Assignment and Assumption Agreement, Banking Services Agreement, and
such other agreements as may be described in, or attached as exhibits to, the
IPO Registration Statement.
"Confidential Information" means, with respect to any party hereto, any
information concerning such party, its business or any of its Affiliates that
such party or its Affiliates treat as confidential or proprietary that was
obtained by the other party hereto; provided, that, such information shall no
longer be deemed Confidential Information, to the extent that it is or was (i)
in the public domain other than by the breach of this Agreement or by breach of
any other agreement between or among the parties hereto and/or any of their
respective Affiliates, (ii) available to such party on a nonconfidential basis
prior to its disclosure by the other party, (iii) lawfully acquired on a
nonconfidential basis or independently developed by, or on behalf of, such party
by Persons who do not have access to such Confidential Information, (iv)
required to be disclosed by law, governmental order or the rules and regulations
of the SEC, or (v) mutually agreed to by the parties.
"Distribution Date" is the date upon which the Distribution is consummated.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, together with the rules and regulations promulgated thereunder.
"IPO Completion Date" means the date on which the IPO is completed.
"IPO Registration Statement" means the Metavante's Registration Statement
on Form S-1 including all exhibits thereto and as supplemented and amended from
time to time.
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"Losses" means all losses, liabilities, deficiencies, damages, expenses or
costs (including reasonable legal and other external advisors fees and
expenses).
"Metavante Business" has the meaning ascribed thereto in the Assignment and
Assumption Agreement.
"Metavante Stock" means the common stock, par value $0.01 per share, of
Metavante.
"M&I Business" means any assets, business or operations of M&I or any of
its Affiliates other than the Metavante Business.
"M&I Transfer Agent" means the company designated by M&I as the transfer
agent and registrar for the M&I common stock, par value $1.00 per share.
"Person" means any individual, corporation, limited or general partnership,
limited liability company, joint venture association, joint stock company, trust
unincorporated organization or government or any agency or political subdivision
thereof.
"Prior Relationship" means the ownership relationship between M&I and
Metavante at any time prior to the Distribution Date.
"Registration Rights Agreement" means the Registration Rights Agreement to
be entered into on or before the IPO Effective Date between M&I and Metavante.
"Representatives" means directors, officers, employees, agents,
consultants, advisors, accountants, attorneys and representatives.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, together with the rules and regulations promulgated thereunder.
"Subsidiary" means, with respect to any Person, any other Person a majority
of the equity ownership or voting stock of which is at the time owned, directly
or indirectly, by such Person and/or one or more other Subsidiaries of such
Person; provided, however, that unless the context otherwise requires prior to
the Distribution, a Subsidiary of M&I shall only include Persons who would be a
Subsidiary of M&I assuming the Distribution has occurred immediately prior to
the determination as to whether such Person were a Subsidiary of M&I.
ARTICLE II
THE IPO AND THE DISTRIBUTION
Section 2.01 Transactions Prior to the IPO. Subject to the conditions
specified in Section 2.02, M&I and Metavante shall use their reasonable efforts
to consummate the IPO. Such efforts shall include, but not necessarily be
limited to, those specified in this Section 2.01.
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(a) Registration Statement. Metavante shall file the IPO
Registration Statement, and such amendments or supplements thereto, as may
be necessary in order to cause the same to become and remain effective as
required by law or by the managing underwriters for the IPO (the
"Underwriters"), including, but not limited to, filing such amendments to
the IPO Registration Statement as may be required by the underwriting
agreement to be entered into among Metavante and the Underwriters (the
"Underwriting Agreement"), the SEC or federal, state or foreign securities
laws. M&I and Metavante shall also cooperate in preparing, filing with the
SEC and causing to become effective a registration statement registering
the common stock of Metavante under the Exchange Act, and any registration
statements or amendments thereof which are required to reflect the
establishment of, or amendments to, any employee benefit and other plans
necessary or appropriate in connection with the IPO, the Distribution or
the other transactions contemplated by this Agreement.
(b) Underwriting Agreement. Metavante and M&I shall enter into
the Underwriting Agreement, in form and substance reasonably satisfactory
to each of Metavante and M&I, and each of them shall comply with their
obligations thereunder.
(c) Other Matters. M&I and Metavante shall consult with each
other and the Underwriters regarding the timing, pricing and other material
matters with respect to the IPO.
(d) Blue Sky. Metavante shall use its reasonable efforts to
take all such action as may be necessary or appropriate under state
securities and blue sky laws of the United States (and any comparable laws
under any foreign jurisdictions) in connection with the IPO.
(e) Nasdaq Listing. Metavante shall prepare, file and use
reasonable efforts to seek to make effective, an application for listing of
the common stock of Metavante issued in the IPO on Nasdaq, subject to
official notice of issuance.
Section 2.02 Conditions Precedent to Consummation of the IPO. As soon as
practicable after the date hereof, the parties hereto shall use their reasonable
efforts to satisfy the conditions listed below to the consummation of the IPO.
The obligations of the parties to use their reasonable efforts to consummate the
IPO shall be conditioned on the satisfaction, or waiver by M&I, of the following
conditions:
(a) Registration Statement. The IPO Registration Statement
shall have been filed and declared effective by the SEC, and there shall be
no stop-order in effect with respect thereto.
(b) Blue Sky. The actions and filings with regard to state
securities and blue sky laws of the United States (and any comparable laws
under any foreign jurisdictions) described in Section 2.01 shall have been
taken and, where applicable, have become effective or been accepted.
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(c) Nasdaq Listing. The common stock of Metavante to be issued
in the IPO shall have been accepted for listing on Nasdaq, subject to
official notice of issuance.
(d) Underwriting Agreement. Metavante and M&I shall have
entered into the Underwriting Agreement and all conditions to the
obligations of Metavante, M&I and the Underwriters shall have been
satisfied or waived.
(e) Metavante Stock Ownership. M&I shall be satisfied in its
sole discretion that it will own at least 80.1% of the total combined
voting power of the outstanding Metavante Stock. All other conditions to
permit the Distribution to qualify as a tax-free distribution under Section
355 of the Code shall, to the extent applicable as of the time of the IPO,
be satisfied. There shall be no event or condition that is likely to cause
any of such conditions not to be satisfied as of the time of the
Distribution or thereafter.
(f) No Legal Restraints. No order, injunction or decree issued
by any court or agency of competent jurisdiction or other legal restraint
or prohibition preventing the consummation of the transaction contemplated
in the Assignment and Assumption Agreement or the IPO or any of the other
transactions contemplated by this Agreement shall be in effect.
(g) Other Actions. Such other actions as the parties hereto
may, based upon the advice of counsel, reasonably request to be taken prior
to the IPO in order to assure the successful completion of the IPO shall
have been taken.
(h) No Termination. This Agreement shall not have been
terminated.
Section 2.03 The Distribution. M&I currently intends, following the
consummation of the IPO, to complete the Distribution within one year of the IPO
Completion Date, or such shorter time as may be required in order to have the
Distribution qualify as a tax-free reorganization. M&I shall, in its sole and
absolute discretion, determine whether to proceed with all or part of the
Distribution and all terms of the Distribution, including, without limitation,
the form, structure and terms of any transaction(s) and/or offering(s) to effect
the Distribution and the timing of and conditions to the consummation of the
Distribution. In addition, M&I may at any time and from time to time until the
completion of the Distribution abandon, modify or change any or all of the terms
of the Distribution, including, without limitation, by accelerating or delaying
the timing of the consummation of all or part of the Distribution. Metavante
shall cooperate with M&I in all reasonable respects to accomplish the
Distribution and shall, at M&I's direction, promptly take any and all actions
necessary or desirable to effect the Distribution, including, without
limitation, the registration under the Securities Act of Metavante Stock on an
appropriate registration form or forms to be designated by M&I. M&I shall
select any investment banker(s) and manager(s) in connection with the
Distribution, as well as any other institutions providing services in connection
with the Distribution.
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Section 2.04 Certain Stockholder Matters. From and after the distribution
of Metavante Stock in the Distribution and until such Metavante Stock is duly
transferred in accordance with applicable law, Metavante shall regard the
Persons receiving Metavante Stock in such transactions as record holders of
Metavante Stock in accordance with the terms of such transactions without
requiring any action on the part of such Persons. Metavante agrees that,
subject to any transfers of such stock, (a) each such holder shall be entitled
to receive all dividends payable on, and exercise voting rights and all other
rights and privileges with respect to, the shares of Metavante Stock then held
by such holder and (b) each such holder shall be entitled, without any action on
the part of such holder, to receive one or more certificates representing, or
other evidence of ownership of, the shares of Metavante Stock then held by such
holder. M&I shall cooperate, and shall instruct the M&I Transfer Agent to
cooperate, with Metavante and the Metavante Transfer Agent, and Metavante shall
cooperate, and shall instruct the Metavante Transfer Agent to cooperate, with
M&I and the M&I Transfer Agent, in connection with all aspects of the
Distribution and all other matters relating to the issuance and delivery of
certificates representing, or other evidence of ownership of, the shares of
Metavante Stock distributed to the holders of M&I Common Stock in connection
with any transaction(s) included as part of the Distribution. Following the
Distribution, M&I shall promptly, but in no event no later than two business
days thereafter, instruct the M&I Transfer Agent to deliver to the Metavante
Transfer Agent true, correct and complete copies of the stock and transfer
records reflecting the holders of M&I Common Stock receiving shares of Metavante
Stock in connection with any transaction(s) included as part of the
Distribution.
Section 2.05 Prior Relationship. Metavante, with respect to Metavante and
its Affiliates, and M&I, with respect to M&I and its Affiliates, agree to take
all reasonable action to discontinue their respective uses as promptly as is
reasonable of any printed material that indicates an ownership or other
relationship between or among M&I and Metavante or any of their respective
Affiliates that has changed as a result of the IPO, the Distribution or any
other transactions contemplated hereby; provided, that, this Section 2.05 shall
not prohibit the use of printed material containing appropriate and accurate
references to such relationship.
Section 2.06 Further Assurances Regarding the Distribution. In addition
to the actions specifically provided for elsewhere in this Agreement, Metavante
shall, at M&I's direction, use all reasonable efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, all things reasonably
necessary, proper or expeditious under applicable laws, regulations and
agreements in order to consummate and make effective the Distribution as
promptly as reasonably practicable. Without limiting the generality of the
foregoing, Metavante shall, at M&I's direction, cooperate with M&I, and execute
and deliver, or use all reasonable efforts to cause to have executed and
delivered, all instruments, including instruments of conveyance, assignment and
transfer, and to make all filings with, and to obtain all consents, approvals or
authorizations of, any domestic or foreign governmental or regulatory authority
requested by M&I in order to consummate and make effective the Distribution.
Section 2.07 Abandonment of the Distribution. The parties expressly
acknowledge and agree that M&I is not obligated in any respect to proceed with
or complete the Distribution and that M&I may, in its sole and absolute
discretion, at any time abandon its plans to proceed with or complete the
Distribution. In the event that M&I so determines that it no longer intends to
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proceed with or complete the Distribution, M&I shall provide to Metavante a
written notification of such determination (an "Abandonment Notice"). Effective
as of the date of the Abandonment Notice, (a) this Agreement shall terminate,
become null and void and have no further force and effect and (b) M&I's rights,
and Metavante' obligations, set forth in the Registration Rights Agreement shall
immediately become effective.
ARTICLE III
EXPENSES
Section 3.01 General. Except as otherwise provided in this Agreement, the
Ancillary Agreements or any other agreement between the parties relating to the
IPO or the Distribution, all costs and expenses of either party hereto in
connection with the IPO and the Distribution shall be paid by the party that
incurs such costs and expenses.
Section 3.02 Certain Expenses Relating to the IPO by Metavante. Metavante
shall cause to be paid from the proceeds of the IPO all out-of-pocket expenses
(including, without limitation, fees and expenses of counsel and accountants or
other third parties) relating to the IPO, including, without limitation, (i) the
preparation, printing and filing of the IPO Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto or any other registration statements, (ii) the preparation, printing and
delivery to any underwriters of any underwriting agreement, any agreement among
underwriters and any other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Metavante Stock or any
other securities of Metavante, (iii) the preparation, issuance and delivery of
the certificates for the Metavante Stock or any other securities of Metavante to
any underwriters or any other purchasers, including any stock or other transfer
taxes and any stamp or other duties payable upon the sale, issuance or delivery
of the Metavante Stock or any other securities of Metavante to any underwriters
or any other securities, (iv) the qualification of the Metavante Stock or any
other securities of Metavante under the securities laws in accordance with any
state (Blue Sky laws), including filing fees and the reasonable fees and
disbursements of counsel for any underwriters in connection therewith and in
connection with the preparation of any Blue Sky survey and any supplement
thereto, (v) the printing and delivery to any underwriters of copies of each
preliminary prospectus, any term sheets and of the final prospectus and any
amendments or supplements thereto, (vi) the preparation, printing and delivery
to any underwriters of copies of any Blue Sky survey and any supplement thereto,
(vii) the fees and expenses of any transfer agent or registrar for the Metavante
Stock or any other securities of Metavante, (viii) the filing fees incident to,
the review by the National Association of Securities Dealers, Inc. (the "NASD")
of the terms of the sale of the Metavante Stock or any other securities of
Metavante and (ix) the fees and expenses incurred in connection with the listing
of the Metavante Stock or any other securities of Metavante on Nasdaq, any
national securities exchange or any national over the counter quotation system,
(x) any other fees and disbursements payable to the underwriters in connection
with the IPO, whether in the form of an underwriting discount or otherwise, (xi)
the preparation and implementation of the Assignment and Assumption Agreement,
and (xii) any miscellaneous expenses incurred in connection with the IPO such as
travel expenses.
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Section 3.03 Certain Expenses Relating to the Distribution. M&I shall pay
all out-of-pocket expenses relating to the Distribution, including (i) the fees
and expenses of the underwriter or dealer-manager, (ii) the fees and expenses of
M&I's attorneys, accountants and other advisors, (iii) the preparation,
printing, filing (including under federal and state securities laws), mailing
and publishing of the disclosure materials relating to the Metavante Stock, (iv)
the preparation, printing and delivery of any certificates or documents entered
into in connection with the Distribution, (v) the fees and expenses incurred in
connection with the listing of the Metavante Stock with Nasdaq, any other
national securities exchange or any national over the counter quotation system,
if applicable and (vi) any other fees incurred in connection with the
Distribution.
ARTICLE IV
ACCESS TO INFORMATION
Section 4.01 Restrictions on Disclosure of Information.
(a) Without limiting any rights or obligations under any other agreement
between or among the parties hereto and/or any of their respective Affiliates
relating to confidentiality, for a period of three years following the date
hereof each of the parties hereto agrees that it shall not, and shall not permit
any of its Affiliates or Representatives to, disclose any Confidential
Information to any Person, other than to such Affiliates or Representatives on a
need-to-know basis in connection with the purpose for which the Confidential
Information was originally disclosed.
(b) Each of the parties hereto shall maintain, and shall cause its
respective Affiliates to maintain, policies and procedures, and develop such
further policies and procedures as shall from time to time become necessary or
appropriate, to ensure compliance with this Section 4.01.
Section 4.02 Legally Required Disclosure of Confidential Information. If
any of the parties to this Agreement or any of their respective Affiliates or
Representatives become legally required to disclose any Confidential
Information, such disclosing party shall promptly notify the party owning the
Confidential Information (the "Owning Party") and shall use all reasonable
efforts to cooperate with the Owning Party so that the Owning Party may seek a
protective order or other appropriate remedy and/or waive compliance with this
Section 4.02. All expenses reasonably incurred in seeking a protective order or
other remedy shall be borne by the Owning Party. If such protective order or
other remedy is not obtained, or if the Owning Party waives compliance with this
Section 4.02, the disclosing party or its Affiliate or Representative, as
applicable, shall (a) disclose only that portion of the Confidential Information
it is compelled by law to disclose, (b) use all reasonable efforts to obtain
reliable assurance requested by the Owning Party that confidential treatment
will be accorded such Confidential Information, and (c) promptly provide the
Owning Party with a copy of the Confidential Information so disclosed, in the
same form and format so disclosed, together with a description of all Persons to
whom such Confidential Information was disclosed.
Section 4.03 Access to Information. During the Retention Period, each of
the parties hereto shall cooperate with and afford, and shall cause their
respective Affiliates,
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Representatives, Subsidiaries, successors and/or assignees, and shall use
reasonable efforts to cause joint ventures that are not Affiliates
(collectively, "Related Parties") to cooperate with, and afford to the other
party, reasonable access upon reasonable advance written request to all
information within such party's or any Related Party's possession. Access to the
requested information shall be provided so long as it relates to the requesting
party's (the "Requestor") assets, business and operations, and access is
reasonably required by the Requestor as a result of the parties' Prior
Relationship for purposes of auditing, accounting, claims or litigation (except
for claims or litigation between the parties hereto), employee benefits,
regulatory or tax purposes or fulfilling disclosure or reporting obligations
including, without limitation, information reasonably necessary for the
preparation of reports required by or filed with banking authorities or under
the Securities Act or the Exchange Act with respect to any period entirely or
partially prior to the Distribution Date or any other reasonable purpose.
Section 4.04 Record Retention. Except as may be otherwise provided in the
Ancillary Agreements, M&I and Metavante shall preserve and keep all of their
respective books and records in the possession of such party or its Related
Parties, whether in electronic form or otherwise, for no less than the later of
(i) the record retention policy of M&I and Metavante as in effect as of the
Distribution Date or (ii) any period as may be required by any laws, regulations
or rulings promulgated thereunder of any jurisdiction (or of any political
subdivision or taxing authority thereof) (the "Retention Period"), at such
party's sole cost and expense. M&I shall deliver to Metavante on the
Distribution Date any and all original corporate organization books that M&I has
in its possession relating solely to the Metavante Business, copies of which M&I
may retain at its own expense. Upon reasonable prior written request, M&I and
Metavante shall deliver to the other copies of any and all books and records
that M&I or Metavante, as the case may be, has in its possession relating to the
Metavante Business or the M&I Business, respectively.
ARTICLE V
COVENANTS
Section 5.01 Auditors and Audits; Annual and Quarterly Statements and
Accounting. Each party agrees that, for so long as M&I is required in
accordance with United States generally accepted accounting principles and rules
and regulations established by the SEC to consolidate Metavante's results of
operations and financial position:
(a) Selection of Auditors. Metavante shall not select a
different accounting firm than Xxxxxx Xxxxxxxx LLP to serve as its (and its
Subsidiaries') independent certified public accountants ("Metavante's
Auditors") for purposes of providing a report on its consolidated financial
statements without M&I's prior written consent (which shall not be
unreasonably withheld).
(b) Date of Auditors' Report and Quarterly Reviews. Metavante
shall use its reasonable efforts to enable the Metavante Auditors to
complete their audit such that they will date their report on Metavante's
audited annual financial statements on the same date that M&I's independent
certified public accountants ("M&I's Auditors") date their report on M&I's
audited annual financial statements, and to enable M&I to meet its
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timetable for the printing, filing and public dissemination of M&I's annual
financial statements. Metavante shall use its reasonable efforts to enable
the Metavante Auditors to complete their quarterly review procedures such
that they will provide a review report on Metavante's quarterly financial
statements on the same date that M&I's Auditors provide a review report on
M&I's quarterly financial statements.
(c) Annual and Quarterly Financial Statements. Metavante shall
provide to M&I on a timely basis all information that M&I reasonably
requires to meet its schedule for the preparation, printing, filing, and
public dissemination of M&I's annual and quarterly financial statements.
Without limiting the generality of the foregoing, Metavante will provide
all required financial information with respect to Metavante and its
Subsidiaries to Metavante's Auditors in a sufficient and reasonable time
and in sufficient detail to permit Metavante's Auditors to take all steps
and perform all reviews necessary to provide sufficient assistance to M&I's
Auditors with respect to information to be included or contained in M&I's
annual and quarterly financial statements. Similarly, M&I shall provide to
Metavante on a timely basis all information that Metavante reasonably
requires to meet its schedule for the preparation, printing, filing, and
public dissemination of Metavante's annual and quarterly financial
statements. Without limiting the generality of the foregoing, M&I will
provide all required financial information with respect to M&I and its
Subsidiaries to M&I's Auditors in a sufficient and reasonable time and in
sufficient detail to permit M&I's Auditors to take all steps and perform
all reviews necessary to provide sufficient assistance to Metavante's
Auditors with respect to Information to be included or contained in
Metavante's annual and quarterly financial statements.
(d) Identity of Personnel Performing the Annual Audit and
Quarterly Reviews. Metavante shall authorize Metavante's Auditors to make
available to M&I's Auditors both the personnel who performed or are
performing the annual audits and quarterly reviews of Metavante and work
papers related to the annual audits and quarterly reviews of Metavante, in
all cases within a reasonable time prior to Metavante's Auditors' report
date, so that M&I's Auditors are able to perform the procedures they
consider necessary to take responsibility for the work of Metavante's
Auditors as it relates to M&I's Auditors' report on M&I's financial
statements, all within sufficient time to enable M&I to meet its timetable
for the printing, filing and public dissemination of M&I's annual and
quarterly statements. Similarly, M&I shall authorize M&I's Auditors to
make available to Metavante's Auditors both the personnel who performed or
are performing the annual audits and quarterly reviews of M&I and work
papers related to the annual audits and quarterly reviews of M&I, in all
cases within a reasonable time prior to M&I's Auditors' report date, so
that Metavante's Auditors are able to perform the procedures they consider
necessary to take responsibility for the work of M&I's Auditors as it
relates to Metavante's Auditors' report on Metavante's statements, all
within sufficient time to enable Metavante to meet its timetable for the
printing, filing and public dissemination of Metavante's annual and
quarterly financial statements.
(e) Access to Books and Records. Metavante shall provide M&I's
internal auditors and their designees access to Metavante's and its
Subsidiaries' books
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and records so that M&I may conduct reasonable audits relating to the
financial statements provided by Metavante pursuant hereto as well as to
the internal accounting controls and operations of Metavante and its
Subsidiaries. Similarly, M&I shall provide Metavante's internal auditors
and their designees access to M&I's and its Subsidiaries' books and records
so that Metavante may conduct reasonable audits relating to the financial
statements provided by M&I pursuant hereto as well as to the internal
accounting controls and operations of M&I and its Subsidiaries.
(f) Notice of Change in Accounting Principles. Metavante shall give
M&I as much prior notice as reasonably practical of any proposed
determination of, or any significant changes in, its accounting estimates
or accounting principles from those in effect on the Separation Date.
Metavante will consult with M&I and, if requested by M&I, Metavante will
consult with M&I's Auditors with respect thereto. M&I shall give Metavante
as much prior notice as reasonably practical of any proposed determination
of, or any significant changes in, its accounting estimates or accounting
principles from those in effect on the Separation Date.
(g) Conflict with Third-Party Agreements. Nothing in this Agreement
shall require either M&I or Metavante to violate any agreement with any
third parties regarding the confidential information relating to that third
party or its business; provided, however, that in the event that either M&I
or Metavante is required under this Agreement to disclose any such
information, such party shall use all reasonable efforts to seek to obtain
such customer's consent to the disclosure of such information.
Section 5.02 No Violations.
(a) For so long as M&I owns, in the aggregate, greater than or equal
to 50% of the total combined voting power of the outstanding Metavante
Stock, Metavante covenants and agrees that it will not take any action or
enter into any commitment or agreement which may reasonably be anticipated
to result, with or without notice and with or without lapse of time or
otherwise, in a contravention or event of default by any of its Affiliates
of (i) any provisions of applicable law or regulation, including but not
limited to provisions pertaining to the Bank Holding Company Act of 1956,
as amended, the Code, or the Employee Retirement Income Security Act of
1974, as amended, (ii) any provision of M&I's Articles of Incorporation or
Bylaws, (iii) any credit agreement or other material agreements binding
upon M&I or (iv) any judgment, order or decree of any governmental body,
agency or court having jurisdiction over M&I or any of its respective
assets.
(b) Metavante and M&I agree to provide to the other any information
and documentation necessary or requested by the other for the purpose of
evaluating and ensuring compliance with Section 5.02(a) hereof.
(c) Notwithstanding the foregoing, nothing in this Agreement is
intended to limit or restrict in any way M&I's rights as a stockholder of
Metavante.
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Section 5.03 Other Agreements. On or prior to the consummation of the IPO,
M&I and Metavante shall have executed and delivered each of the Ancillary
Agreements.
ARTICLE VI
M&I OWNERSHIP
Section 6.01 M&I Ownership. Metavante hereby agrees that it will not take
any actions which would cause M&I to own any less than 80.1% of the total
combined voting power of the outstanding Metavante Stock except in connection
with the Distribution. The obligations of Metavante set forth in the foregoing
sentence shall terminate on the first to occur of the following:
(a) receipt by Metavante of an Abandonment Notice; and
(b) completion of the Distribution.
ARTICLE VII
INDEMNIFICATION
Section 7.01 Indemnification.
(a) M&I shall indemnify Metavante and each of its Subsidiaries and their
respective officers, directors, employees, agents and representatives (each, an
"Metavante Indemnified Party") and hold them harmless against any and all Losses
resulting from, relating to or arising out of (i) any breach of, or failure to
perform, any agreement of M&I contained in this Agreement or (ii) any third
party claims arising in connection with the performance by M&I of its agreements
contained in this Agreement.
(b) Metavante shall indemnify M&I and each of its Subsidiaries and their
respective officers, directors, employees, agents and representatives (each, a
"M&I Indemnified Party") and hold them harmless against any and all Losses
resulting from, relating to or arising out of (i) any breach of or failure to
perform any agreement of Metavante contained in this Agreement or (ii) any third
party claims arising in connection with the performance by Metavante of its
agreements contained in this Agreement.
(c) The indemnification procedures set forth in the Assignment and
Assumption Agreement are applicable to any indemnity granted herein.
ARTICLE VIII
CONDITION TO CONSUMMATION OF TRANSACTIONS; TERMINATION
Section 8.01 Condition. Consummation of the transactions provided for in
this Agreement and the Ancillary Agreements is conditioned upon, and shall only
be effected upon or after the consummation of the IPO.
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Section 8.02 Termination. This Agreement may be terminated and the IPO
and Distribution abandoned by the Board of Directors of M&I in its sole
discretion, without the approval of Metavante at any time prior to the IPO
Completion Date or Distribution Date, as applicable. In the event of any such
termination, no party shall have any liability of any kind to the other party.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Limitation of Liability. Neither M&I nor Metavante shall be
liable to the other for any special, indirect, incidental or consequential
damages of the other arising in connection with this Agreement.
Section 9.02 Further Assurances. Each party agrees to execute,
acknowledge, deliver, file, record and publish such further certificates,
amendments to certificates, instruments and documents, and do all such other
acts and things as may be required by law, or as may be required to carry out
the intent and purposes of this Agreement and the Ancillary Agreements and the
transactions contemplated thereby.
Section 9.03 Remedies. Each of M&I and Metavante acknowledges and agrees
that under certain circumstances the breach by M&I or any of its Affiliates or
Metavante or any of its Affiliates of a term or provision of this Agreement will
materially and irreparably harm the other party, that money damages will
accordingly not be an adequate remedy for such breach and that the non-
defaulting party, in its sole discretion and in addition to its rights under
this Agreement and any other remedies it may have at law or in equity, may apply
to any court of law or equity of competent jurisdiction for specific performance
and/or other injunctive relief in order to enforce or prevent any breach of the
provisions of this Agreement.
Section 9.04 Performance. Each of the parties hereto shall use all
commercially reasonable efforts to cause to be performed all actions, agreements
and obligations set forth herein to be performed by any Affiliate of such party.
Section 9.05 Amendments. This Agreement shall not be supplemented,
amended or modified in any manner whatsoever (including without limitation by
course of dealing or of performance or usage of trade) except in writing signed
by the parties.
Section 9.06 Successors and Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
permitted assigns. This Agreement may not be assigned by any party by operation
of law or otherwise without the express written consent of the other party
(which consent may be granted or withheld).
Section 9.07 Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law. If any portion of this Agreement is declared invalid for
any reason in any jurisdiction, such declaration shall have no effect upon the
remaining portions of this Agreement, which shall continue in full force and
effect as if this Agreement had been executed with the invalid portions thereof
deleted; provided,
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that, the entirety of this Agreement shall continue in full force and effect in
all other jurisdictions.
Section 9.08 Entire Agreement; Parties in Interest. Other than the
Assignment and Assumption Agreement and the Ancillary Agreements, this Agreement
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof and thereof and supersedes all prior agreements and
undertakings, both written and oral, between the parties with respect to the
subject matter hereof and thereof. Nothing in this Agreement, express or
implied, is intended to confer any rights or remedies of any nature whatsoever
under or by reason of this Agreement on parties other than M&I and Metavante.
Section 9.09 Notices. All notices, consents, requests, approvals, and
other communications provided for or required herein, and all legal process in
regard thereto, must be in writing and shall be deemed validly given, made or
served, (a) when delivered personally or sent by telecopy to the facsimile
number indicated below with a required confirmation copy sent in accordance
with subsection (c) below; or (b) on the next business day after delivery to a
nationally-recognized express delivery service with instructions and payment for
overnight delivery; or (c) on the fifth (5th) day after deposited in any
depository regularly maintained by the United States postal service, postage
prepaid, certified or registered mail, return receipt requested, addressed to
the following addresses or to such other address as the party to be notified
shall have specified to the other party in accordance with this section:
If to M&I:
M.A. Xxxxxxxx
Senior Vice President and Secretary
Xxxxxxxx & Ilsley Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Metavante:
N. "Norrie" X. Xxxxxx
Senior Vice President and General Counsel
Metavante Corporation
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Section 9.10 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Wisconsin. Each of the
parties hereto agrees that any dispute relating to or arising from this
Agreement or the transactions contemplated hereby shall be resolved only in the
court of the State of Wisconsin sitting in Milwaukee County or the
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Xxxxxx Xxxxxx Xxxxxxxx Xxxxx for the Eastern District of Wisconsin and the
appellate court having jurisdiction of appeals in such courts.
Section 9.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date and year first written above.
XXXXXXXX & XXXXXX CORPORATION
By: /s/ M. A. Xxxxxxxx
----------------------------
Name: M. A. Xxxxxxxx
Title: Senior Vice President and
Secretary
METAVANTE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: President and Chief Executive
Officer
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