FIDELITY NATIONAL INFORMATION SERVICES, INC. STOCK PURCHASE RIGHT AGREEMENT
Exhibit 99.4
Stock Purchase Right Agreement, dated as of March 31, 2009 (as it may be amended from time to
time, this “Agreement”) among Fidelity National Information Services, Inc., a Georgia
corporation (the “Company”), WPM, L.P., a Delaware limited partnership (the
“Investor”), and solely for the purpose of Sections 5.1, 5.8 and 5.10, Metavante
Technologies, Inc., a Wisconsin corporation (“Metavante”).
WHEREAS, concurrently with the execution of this Agreement, the Company, Cars Holdings, LLC, a
Delaware limited liability company and a direct, wholly owned subsidiary of the Company
(“Merger Sub”), and Metavante are entering into an Agreement and Plan of Merger
(“Merger Agreement”), which provides, subject to Section 1.1 of the Merger Agreement, for
the merger (the “Merger”) of Metavante with and into Merger Sub, pursuant to which all of
the outstanding capital stock of Metavante will be converted into the right to receive shares of
capital stock of the Company, as set forth in the Merger Agreement;
WHEREAS, as of the date hereof, Investor owns shares of common stock of Metavante and is a
party to an Amended and Restated Stock Purchase Right Agreement, dated as of August 21, 2008,
between Metavante and Investor (the “Metavante Stock Purchase Right Agreement”);
WHEREAS, as a condition to, among other things, Investor’s willingness to enter into and
perform its obligations under that certain Support Agreement, dated as of the date hereof, among
the Company, Merger Sub, Investor and Metavante, the Company has agreed to enter into this
Agreement and the Shareholders Agreement; and
WHEREAS, upon consummation of the Merger, the Investor will own shares of common stock, par
value $0.01 per share, of the Company (the “Common Shares”), and the Investor and the
Company are entering into this Agreement in furtherance of that connection;
WHEREAS, except for Sections 2, 4.9, 5.1 through 5.8, 5.10 and 5.11, which shall be effective
upon the date set forth above, this Agreement shall be effective as of the date of the effective
time of the Merger pursuant to the terms of the Merger Agreement (the “Effective Time”);
and
WHEREAS, the actions contemplated herein on behalf of each of the Company and Investor have
been duly and validly authorized by all necessary action and no other proceedings on the part of
the Company or Investor are necessary to consummate the actions contemplated herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties do hereby
agree as follows:
1. Purchase Right. Upon the terms and subject to the conditions set forth in this
Agreement, the Company hereby grants to the Investor the right to purchase from the Company the
Subject Shares at the Purchase Prices; provided, however, that notwithstanding
anything to the contrary contained in this Agreement, the total number of Subject Shares that may
be
purchased under this Agreement shall equal one-third of the aggregate number of Common Shares
that may be issued under the Subject Employee Options, subject to reduction, if any, pursuant to
Section 3.1(b) hereof. As of the date hereof, there were (i) options to purchase 6,827,536 shares
of common stock of Metavante outstanding that (subject to reduction pursuant to Section 3.1(b) of
the Metavante Stock Purchase Right Agreement prior to the Effective Date) will be converted into
Subject Employee Options pursuant to the terms of the Merger Agreement (such options, the
“Applicable Metavante Options”). Within five business days after the determination of the
number of Subject Employee Options into which the Applicable Metavante Options are
convertible pursuant to the Merger Agreement (such date of determination to be as soon as
reasonably practicable after the Closing Date), the Company shall deliver to Investor a schedule
setting forth, with respect to each Subject Employee Option into which the Applicable
Metavante Options were converted pursuant to the Merger Agreement, the expiration date,
exercise price and number of Common Shares underlying such Subject Employee Option.
2. Expiration Date; Effectiveness. Subject to Section 5.9, in no event may the
Purchase Right (as defined in Section 3.2(a)) be exercised, in whole or in part, after the earlier
of (i) the date that is forty-five days after the Quarterly Notice (as defined herein) is given in
respect of the calendar quarter in which all Subject Employee Options expire, (ii) the date that
all Subject Shares (as they may have been reduced pursuant to Sections 3.1(b) or 3.2(b)) have been
purchased by the Investor or (iii) ten years from November 1, 2007, unless the Board shall extend
the expiration date of any of the Subject Employee Options beyond the end of such ten-year period,
in which case the Purchase Right shall be similarly extended (the “Expiration Date”).
Except with respect to this Section 2, Section 4.9, Sections 5.1 through 5.8, Section 5.10 and
Section 5.11 which shall be effective on the date first set forth above, this Agreement will be
automatically effective as of the Effective Time and will continue in effect thereafter until the
Expiration Date. In the event the Merger Agreement is terminated in accordance with its terms
prior to the Closing Date, this Agreement shall automatically thereafter terminate and be of no
further force and effect; provided, however, this Section 2 and Section 5.10 shall remain in effect
pursuant to its terms and Section 5.1 shall remain in effect with respect to Investor and
Metavante.
3. Exercise of Purchase Right.
3.1. Quarterly Notice and Reduction of Right.
(a) No later than the last day of each month following the end of each calendar quarter
prior to the Expiration Date, the Company shall give the Investor a notice setting forth the
following: (i) the aggregate number of Common Shares issued during such quarter upon the
exercise of Subject Employee Options, (ii) the aggregate exercise price of such Subject
Employee Options for such Common Shares, and (iii) the aggregate number and exercise price
of Subject Employee Options that expired unexercised or were forfeited during such quarter
(the “Quarterly Notice”). The Quarterly Notice shall be accompanied by a schedule
setting forth, in the form of tranches of the same exercise dates and exercise prices, all
unexercised Subject Employee Options as of the end of such quarter.
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(b) The Subject Shares shall be automatically reduced by a number equal to one-third of
the Common Shares issuable (x) under Subject Employee Options that expire unexercised or are
forfeited and (y) under Out of the Money Options as provided in Sections 3.2(a) and 3.2(c).
3.2. Method of Exercise.
(a) The Investor shall have a purchase right (including the right to purchase via a
Cash Payment, the “Purchase Right”) to purchase a whole number of Common Shares
equal to the difference (rounded down to the nearest whole share) between (i) one-third of
the aggregate number of Common Shares issued under the Subject Employee Options during each
calendar quarter the exercise prices of which equal or are less than the Fair Market Value
as of the date of exercise of the Purchase Right for such Common Shares (each such Subject
Employee Option, an “In-the-Money Option”; but for clarity, when determining such
“In-the-Money Options”, the reference to “one-third” in this clause (i) shall be omitted),
and (ii) the quotient of (A) one-third of the aggregate exercise prices of such In-the-Money
Options for such Common Shares, in each case as specified in the Quarterly Notice with
respect to such quarter (it being understood that this number shall not be reduced for any
such Common Shares that are withheld from employees to pay the exercise price of such
Subject Employee Options, or any withholding taxes due, pursuant to net vesting settlement
and similar provisions) (such number as derived in this subclause (A), the “Exercise
Price Equivalent”), divided by (B) the Fair Market Value of a Common Share, determined
as of the close of business on the business day immediately before the date of purchase,
which date shall also be deemed the date of exercise of the Purchase Right for purposes of
determining the In-the-Money Options and Out of the Money Options, for a Purchase Price per
share equal to $0.01. Such purchase shall, subject to Section 5.9, take place 45 days
following the date the Quarterly Notice is given (or the first business day following such
45th day, if such day is not a business day). Following the Quarterly Notice and
prior to such date of purchase, the Investor may in lieu of the foregoing purchase right,
deliver to the Company a notice (the “Cash Payment Notice”) electing to purchase by
a Cash Payment a number of Common Shares equal to one-third of the aggregate number of
Common Shares issued under the In-the-Money Options for an aggregate Purchase Price equal to
the Exercise Price Equivalent, in which case the Cash Payment shall be made on the same date
the Cash Payment Notice is delivered to the Company; provided that, if the Investor
exercises its right to make the Cash Payment, such right shall also be included in the term
“Purchase Right” for purposes of this Agreement. Upon the purchase of any Common Shares
pursuant to this Section 3.2(a) or Section 3.3, the number of Subject Shares remaining shall
be reduced by the number of Common Shares that would have been purchased assuming the
Investor had purchased using the Cash Payment. The Subject Shares shall also be reduced by
a number equal to one-third of the number of Common Shares issued during each calendar
quarter pursuant to Out of the Money Options.
(b) In the event the Investor sells, transfers, assigns or otherwise disposes of
(whether by operation of law or otherwise) (but only in the event that the Purchase Right is
not accelerated under Section 3.2(c) in connection with such event), to
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a third party that is not an affiliate of the Investor or distributes to its limited
partners (collectively, “Transfers”), any of the Common Shares it acquired pursuant
to the terms of the Merger Agreement, but not any Common Shares that it thereafter acquired
in excess of such Common Shares (it being understood that in connection with any such sale,
transfer, assignment or disposition the Investor shall be deemed to have first sold,
transferred, assigned or disposed of the Common Shares it acquired pursuant to the terms of
the Merger Agreement until the Investor has sold, transferred, assigned or disposed of all
such Common Shares), it may exercise the Purchase Right for a whole number of Common Shares
equal to the difference (rounded down to the nearest whole share) between (i) the number of
applicable Acceleration Subject Shares, and (ii) the quotient of (A) the related
Acceleration Purchase Price, divided by (B) the Fair Market Value of a Common Share,
determined as of the date the Acceleration Notice is given, for a Purchase Price per share
equal to $0.01, by delivering to the Company an irrevocable exercise notice within 10 days
of such sale (the “Acceleration Notice”). The Acceleration Notice shall set forth
the number of Common Shares that have been sold by the Investor and the dates of sales
thereof and shall certify that such Acceleration Notice is being given in accordance with
Section 3.2(b), and shall specify whether, in lieu of the foregoing Purchase Right, the
Investor wishes to elect to purchase by a Cash Payment the number of applicable Acceleration
Subject Shares for an amount equal to the Acceleration Purchase Price. Within 10 business
days of receiving the Acceleration Notice, the Company shall give the Investor notice (the
“Acceleration Details Notice”) of the Acceleration Purchase Price applicable to the
Acceleration Notice as well as the Company’s calculation of the number of Acceleration
Subject Shares being purchased by the Investor pursuant to such Acceleration Notice. In the
event that Investor elects to pay the Acceleration Purchase Price in cash, it shall deliver
the Acceleration Purchase Price specified in the Acceleration Notice no later than three
days following the giving of such Acceleration Details Notice. Upon the purchase of any
Acceleration Subject Shares pursuant to this Section 3.2(b), the number of Subject Shares
remaining shall be reduced by the number of Acceleration Subject Shares so purchased.
(c) Immediately prior to an all-cash merger or other business combination involving the
Company in which the Common Shares are converted into the right to receive only cash in
exchange for such Common Shares, the Purchase Right shall automatically be deemed exercised
for the number of Common Shares equal to the difference (rounded down to the nearest whole
share) between (i) all Subject Shares then still subject to the Purchase Right and (ii) the
quotient of (A) the related Acceleration Purchase Price, divided by (B) the Fair Market
Value of a Common Share, determined as of three business days before the date of such
acceleration, for a Purchase Price per share equal to $0.01. The Subject Shares shall be
reduced by a number equal to one-third of the number of Common Shares subject to Out of the
Money Options as of the date of an acceleration pursuant to this Section 3.2(c).
(d) The Purchase Right may be exercised by the Investor solely as and to the extent
expressly set forth in this Section 3.2. In no event may the Purchase Right be exercised
after it terminates as set forth in Section 2. No certificate representing a Common Share
shall be delivered to the Investor until the full purchase price therefore
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has been paid. Notwithstanding anything to the contrary contained in this Agreement,
the Company shall have no obligation to issue any fraction of a Common Share under this
Agreement and all of such fractional shares shall be disregarded.
3.3. Metavante Stock Purchase Right Agreement. In addition to the rights set forth in
this Agreement, in connection with the first Quarterly Notice required to be delivered by the
Company following the Closing Date, the Company shall deliver to the Investor a schedule setting
forth the aggregate Closing Metavante Subject Shares, including (i) a compution of the In-the-Money
Options (as defined in the Metavante Stock Purchase Right Agreement) and (ii) substantially the
same information regarding the Closing Metavante Subject Shares as the Company is required to
deliver in the Quarterly Notice. In addition to any Purchase Rights that the Investor has related
to such first Quarterly Notice, Investor shall have a right (the “Metavante Purchase
Right”) to purchase the Closing Metavante Subject Shares for a cash purchase price per share
equal to $0.01; provided, however, in lieu of the foregoing purchase right,
Investor may deliver to the Company a notice electing to purchase by a Cash Payment one-third of
the aggregate number of Metavante In-the-Money Option Shares for an aggregate purchase price equal
to one-third of the aggregate exercise prices of such Metavante In-the-Money Option Shares. Such
purchase shall, subject to Section 5.9, take place 45 days following the date the first Quarterly
Notice is given (or the first business day following such 45th day, if such day is not a
business day). Exhibit A hereto sets forth, for illustrative purposes only, an example of
the computation of the Metavante Purchase Right pursuant to this Section 3.3.
4. Additional Terms and Conditions of Purchase Right.
4.1. Nontransferability of Purchase Right. The Purchase Right and the Metavante
Purchase Right are exercisable only by the Investor. Neither the Purchase Right nor the Metavante
Purchase Right may be sold, transferred, assigned, pledged, hypothecated, encumbered or otherwise
disposed of (whether by operation of law or otherwise) or be subject to execution, attachment or
similar process. Any attempt to so sell, transfer, assign, pledge, hypothecate, encumber or
otherwise dispose of the Purchase Right or the Metavante Purchase Right, shall be null and void.
4.2. Investment Representation.
(a) The Investor hereby represents and warrants that (a) any Common Shares purchased
upon exercise of either of the Purchase Right or the Metavante Purchase Right will be
purchased for investment and not with a view to the distribution thereof within the meaning
of the Securities Act of 1933, as amended (the “Securities Act”), unless such
purchase has been registered under the Securities Act and any applicable state securities
laws; (b) any subsequent sale of any such shares shall be made either pursuant to an
effective registration statement under the Securities Act and any applicable state
securities laws, or pursuant to an exemption from registration under the Securities Act and
such state securities laws; and (c) if requested by the Company, the Investor shall submit a
written statement, in form reasonably satisfactory to the Company, to the effect that such
representation (x) is true and correct as of the date of purchase of any shares hereunder or
(y) is true and correct as of the date of any sale of any such shares, as applicable.
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(b) All Common Shares issued under this Agreement and the shares issued in connection
with the Metavante Purchase Right shall bear the legend specified in Section 6.3 of the
Shareholders Agreement only for the time period specified in such Section 6.3.
4.3. Adjustment. In the event of any adjustment (i) in the Common Shares issuable
upon exercise of Subject Employee Options or the Metavante Purchase Right or (ii) to the terms of
any of the Subject Employee Options, including the exercise prices, in each case including as a
result of stock split, stock dividend, recapitalization, reorganization, merger, consolidation,
combination, exchange of shares, liquidation, spin-off or other similar change in capitalization or
event (for the avoidance of doubt, other than the transactions contemplated by the Merger
Agreement), the Subject Shares and the shares issuable in connection with the Metavante Purchase
Right and the terms and conditions thereof (including without limitation the Purchase Price
thereof) shall be equitably adjusted by the Board in the same manner as the Subject Employee
Options.
4.4. Compliance with Applicable Law. The Purchase Right and the Metavante Purchase
Right are subject to the condition that if the listing, registration or qualification of the
Subject Shares or the shares issuable in connection with the Metavante Purchase Right upon any
securities exchange or under any law, or the consent or approval of any governmental body, or the
taking of any other action is necessary or reasonably desirable as a condition of, or in connection
with, the purchase or delivery of Subject Shares or the shares issuable in connection with the
Metavante Purchase Right, the Purchase Right or the Metavante Purchase Right, as applicable, may
not be exercised, in whole or in part, unless such listing, registration, qualification, consent or
approval shall have been effected or obtained. The Company and the Investor agree to use
reasonable efforts to promptly effect or obtain any such listing, registration, qualification,
consent or approval. The Company represents and warrants that none of the execution and delivery of
this Agreement by the Company, the consummation by the Company of the transactions contemplated
hereby or compliance by the Company with any of the provisions hereof requires any listing,
registation or qualification of the Subject Shares or the shares issued in connection with the
Metavante Purchase Right upon any securities exchange or under any law, and that no consent or
approval of any governmental body, or the taking of any other action is necessary as a condition
of, or in connection with, the purchase or delivery of Subject Shares or the shares issuable in
connection with the Metavante Purchase Right by the Investor.
4.5. Delivery of Certificates. Upon the exercise of the Purchase Right or the
Metavante Purchase Right, as applicable, in whole or in part, the Company shall deliver or cause to
be delivered one or more certificates representing the number of shares purchased against full
payment therefore, subject to Section 4.2(b).
4.6. Purchase Right Confers No Rights as Shareholder. The Investor shall not be
entitled to any privileges of ownership with respect to Subject Shares or the shares issuable in
connection with the Metavante Purchase Right unless and until purchased and delivered upon the
exercise of the Purchase Right or the Metavante Purchase Right, as applicable, in whole or in part,
and the Investor becomes a shareholder of record with respect to such delivered shares; and
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the Investor shall not be considered a shareholder of the Company with respect to any such
shares not so purchased and delivered previously.
4.7. Company to Reserve Shares. The Company shall at all times prior to the
expiration or termination of each of the Purchase Right and the Metavante Purchase Right reserve
and keep available, either in its treasury or out of its authorized but unissued Common Shares, the
full number of shares subject from time to time to the Purchase Right and the Metavante Purchase
Right.
4.8. Shareholders Agreement. Any Common Shares issued upon exercise of the Purchase
Right and all Common Shares issuable upon exercise of the Metavante Purchase Right shall be subject
to the provisions of the Shareholders Agreement, and shall be shares of “Common Stock” that are
“Beneficially Owned” by Investor for purposes of the Shareholders Agreement. Without limiting the
generality of the foregoing, such Common Shares issued upon exercise of the Purchase Right and all
Common Shares issued upon exercise of the Metavante Purchase Right shall be subject to (i) the
registration rights provisions of Article II of the Shareholders Agreement, (ii) the transfer
restriction provisions of Section 3.1 of the Shareholders Agreement, and (iii) the provisions of
Section 6.3 of the Shareholders Agreement only for the time period specified in such Section 6.3.
4.9. Defined Terms. Capitalized terms used in this Agreement have the following
meanings:
“Acceleration Purchase Price” shall mean with respect to any Acceleration Subject Shares,
one-third of the aggregate exercise price of the Subject Employee Options to the extent used in
determining such Acceleration Subject Shares.
“Acceleration Subject Shares” shall mean (x) in the case of Section 3.2(b) a number of
Common Shares equal to one-third of a percentage of the Reference Common Shares that is equal to
the percentage of the Common Shares transferred by the Investor as contemplated by Section 3.2(b)
and in respect of which an Acceleration Notice had not been delivered previously, and (y) in the
case of Section 3.2(c) a number of Common Shares equal to one-third of all Common Shares subject to
then outstanding Subject Employee Options the exercise prices of which are equal to or are less
than the Fair Market Value as of the date of an acceleration pursuant to Section 3.2(c).
“Board” shall mean the Board of Directors of the Company, excluding the Investor Designee
(as defined in the Shareholders Agreement).
“Cash Payment” shall mean a wire transfer of immediately available funds to such account as
the Company may specify from time to time.
“Closing Date” shall mean the date of the Effective Time of the Merger pursuant to the
Merger Agreement.
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“Closing Metavante Subject Shares” shall be determined by reference to the Closing Date and
shall be equal to the number of shares of Common Shares equal to the sum (rounded down to the
nearest whole share number) obtained by adding (A) any Subject Shares (as defined in the Metavante
Stock Purchase Right Agreement) that, but for Section 5.10, the Investor would have had a right to
purchase as a result of a Quarterly Notice (as defined in the Metavante Stock Purchase Right
Agreement) that Metavante would have been required to give to the Investor, including, without
limitation, any Quarterly Notice (as defined in the Metavante Stock Purchase Right Agreement)
Metavante would have been required to give to the Investor assuming the one month period set forth
in the Metavante Stock Purchase Right Agreement had expired prior to the Closing Date, but that the
Investor did not exercise on or prior to the Closing Date, as contemplated by Section 5.10, plus
(B), without duplication of the time period set forth in the preceding clause (A), the number of
Subject Shares (as defined in the Metavante Stock Purchase Right Agreement) the Investor could
purchase if Metavante was obligated to determine, as of the Closing Date, the Investor’s Purchase
Right (as defined in the Metavante Stock Purchase Right Agreement) for the time period beginning on
the first day of the most recent calendar quarter and ending on and including the Closing Date;
provided, however, in calculating the number of Subject Shares (as defined in the
Metavante Stock Purchase Right Agreement) for the purposes of clause (A) and (B) above, the number
of Common Shares (as defined in the Metavante Stock Purchase Right Agreement) obtained in respect
of clause (i) of Section 3.2(a) of the Metavante Stock Purchase Right Agreement shall first be
multiplied by the Exchange Ratio (as defined in the Merger Agreement) prior to subtracting the
number obtained in clause (ii) of Section 3.2(a) of the Metavante Stock Purchase Right Agreement.
For purposes of determining the Closing Metavante Subject Shares, (i) all computations and other
determinations shall be made as of the Closing Date, including, without limitation, the
determination of Fair Market Value (as defined in the Metavante Stock Purchase Right Agreement),
In-the-Money Options (as defined in the Metavante Stock Purchase Right Agreement) and Out of the
Money Options (as defined in the Metavante Stock Purchase Right Agreement) and (ii) all time
periods regarding exercise of the Investor’s rights with respect to such Closing Metavante Subject
Shares under the Metavante Stock Purchase Right Agreement shall be disregarded.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, or any similar
federal statute and the rules and regulations thereunder, as in effect from time to time.
“Fair Market Value” shall mean the closing transaction price of a Common Share as reported
in the New York Stock Exchange Composite Transactions (or the equivalent reporting system for any
other national securities exchange on which the Common Shares are primarily listed) on the date as
of which such value is being determined or, if there shall be no reported transactions for such
date, on the next preceding date for which transactions were reported; provided,
however, that if the Common Shares are not listed on any national securities exchange, the
Fair Market Value may be determined by the Board by whatever means or method as the Board, in the
good faith exercise of its discretion, shall at such time deem appropriate.
“Metavante In-the-Money Option Shares” shall be determined by reference to the Closing Date
and shall be equal to the number of shares of Common Shares equal to the product (rounded down to
the nearest whole share number) obtained by multiplying (A) the Exchange Ratio (as defined in the
Merger Agreement) by (B) one-third of the aggregate number of shares
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of common stock of Metavante issued pursuant to all of the In-the-Money Options (as defined in the
Metavante Stock Purchase Right Agreement; but for clarity, when determining such “In-the-Money
Options”, the reference to “one-third” in Section 3.2(a) of such Metavante Stock Purchase Right
Agreement shall be omitted) included in the determination of the Closing Metavante Subject Shares.
“Out of the Money Options” shall mean (x) in the case of Section 3.2(a), Subject Employee
Options the exercise prices of which are greater than the Fair Market Value as of the date of
exercise of the Purchase Right for such Common Shares, and (y) in the case of Section 3.2(c),
Subject Employee Options the exercise prices of which are greater than the Fair Market Value as of
the date of an acceleration pursuant to such Section 3.2(c).
“Purchase Prices” shall mean the purchase prices for which the Investor may purchase
Subject Shares hereunder.
“Reference Common Shares” shall mean, as of any time of determination, the Subject Shares
subject to those Subject Employee Options (i) that are outstanding, unexercised and vested, (ii)
the exercise prices of which equal or are less than the Fair Market Value as of such date, (iii)
not previously used in determining the Acceleration Subject Shares in connection with any
Acceleration Notice, and (iv) have the earliest grant dates (when compared to other Subject
Employee Options that meet the specifications in clause (i) – (iii) immediately above).
“Shareholders Agreement” shall mean that certain Shareholders Agreement, dated as of the
date hereof, among the Company, the Investor and any other Shareholders (as defined therein) that
become a party thereto, as amended from time to time.
“Subject Employee Options” shall mean the options to acquire shares of common stock of
Metavante that are subject to the Metavante Stock Purchase Right Agreement immediately prior to the
Effective Time of the Merger, which options are, pursuant to the terms set forth in the Merger
Agreement, being converted into options to acquire Common Shares of the Company in connection with
the Merger. The number of Subject Employee Options, if determined as of the date hereof after
giving effect to the Exchange Ratio (as defined in the Merger Agreement), is 9,217,173, and such
number shall only be reduced prior to the Effective Time of the Merger in accordance with Section
3.1(b)(x) of the Metavante Stock Purchase Right Agreement.
“Subject Shares” shall mean the Common Shares issuable pursuant to Section 3 hereof.
5. Miscellaneous Provisions.
5.1. Successors. This Agreement shall be binding upon and inure to the benefit of the
Investor, the Company and the successors and assigns of the Company and with respect to Section
5.10, the successors and assigns of Metavante. The Investor may not assign any of its rights or
obligations under this Agreement, whether by operation of law or otherwise. Nothing in this
Agreement, express or implied, is intended to or shall confer upon any other person any right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
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5.2. Notices. All notices and other communications hereunder shall be in writing and
shall be deemed duly given (a) on the date of delivery if delivered personally, (b) upon
confirmation of receipt if delivered by telecopy or telefacsimile, (c) on the first business day
following the date of dispatch if delivered by a recognized next-day courier service, or (d) on the
date received if delivered by registered or certified mail, return receipt requested, postage
prepaid. All notices hereunder shall be delivered as set forth below, or pursuant to such other
instructions as may be designated in writing by the party to receive such notice:
If to the Company, to it at:
Fidelity National Information Services, Inc.
000 Xxxxxxxxx Xxx.
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Executive Vice President and General Counsel
Facsimile: (000) 000-0000
000 Xxxxxxxxx Xxx.
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Executive Vice President and General Counsel
Facsimile: (000) 000-0000
and
Fidelity National Information Services, Inc.
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxxx, XX 00000
Attention: Executive Vice President, Legal
Facsimile: (000) 000-0000
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxxx, XX 00000
Attention: Executive Vice President, Legal
Facsimile: (000) 000-0000
with a copy to (which shall not constitute notice):
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx X. Xxxxx, Esq.
Xxxxxxx X. Guest, Esq.
Facsimile: (000) 000-0000
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx X. Xxxxx, Esq.
Xxxxxxx X. Guest, Esq.
Facsimile: (000) 000-0000
If to Investor, to it at:
WPM, L.P.
c/o Warburg Pincus & Co.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
c/o Warburg Pincus & Co.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
with a copy to (which shall not constitute notice):
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
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Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Metavante, to it at:
Metavante Technologies, Inc.
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
and
Metavante Technologies, Inc.
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to (which shall not constitute notice):
Xxxxxxxx & Xxxxx LLP
Citigroup Center
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
Citigroup Center
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
and
Xxxxxxx & Xxxxx LLP
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other persons or addresses as may be designated in writing by the party to receive such
notice as provided above.
5.3. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware (without giving effect to choice of law principles thereof).
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5.4. Consent to Jurisdiction. Each of Investor and the Company irrevocably agrees
that any legal action or proceeding with respect to this Agreement, any provision hereof, the
breach, performance, validity or invalidity hereof or for recognition and enforcement of any
judgment in respect hereof brought by another party hereto or its successors or permitted assigns
may be brought and determined in any federal or state court located in the State of Delaware, and
each of Investor and the Company hereby irrevocably submits with regard to any such action or
proceeding for itself and in respect to its property, generally and unconditionally, to the
exclusive jurisdiction of the aforesaid courts. Each of Investor and the Company hereby
irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or
otherwise, in any action or proceeding with respect to this Agreement, any provision hereof or the
breach, performance, enforcement, validity or invalidity hereof, (i) any claim that it is not
personally subject to the jurisdiction of the above-named courts for any reason other than the
failure to lawfully serve process, (ii) that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such courts (whether through
service of notice, attachment prior to judgment, attachment in aid of execution of judgment,
execution of judgment or otherwise) and (iii) to the fullest extent permitted by applicable laws,
that (A) the suit, action or proceeding in any such court is brought in an inconvenient forum, (B)
the venue of such suit, action or proceeding is improper and (C) this Agreement, or the subject
matter hereof, may not be enforced in or by such courts.
5.5. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (a) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, TO IT THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER, (b) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF
THIS WAIVER, (c) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (d) EACH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 5.5.
5.6. Counterparts. This Agreement may be executed in counterparts each of which shall
be deemed an original and which together shall constitute one and the same instrument.
5.7. Descriptive Headings. The descriptive headings of this Agreement are inserted
for convenience only and do not constitute a part of this Agreement.
5.8. Amendments and Waivers. The provisions of this Agreement may be amended or
waived only upon the prior written consent of the Company (to the extent approved by a majority of
Independent Directors, excluding the Investor Designee, each as defined in the Shareholders
Agreement) and Investor; provided, however, that with respect to any amendments to
this
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Section 5.8 or Sections 5.1 or 5.10 prior to the Closing Date, the prior written consent of
Metavante shall also be required.
5.9. Section 16 Matters. The exercise dates set forth herein applicable to the
Investor shall, at the request of the Investor, automatically be extended as necessary to avoid
liability, if any, to the Investor under Section 16 of the Exchange Act; provided,
however, in the event the Investor requests that such exercise date be extended, all
computations and other determinations shall be made as of the date on which the exercise period
(without giving effect to any extension pursuant to this Section 5.9) would have otherwise
occurred. For as long as the Investor is entitled to appoint the Investor Designee pursuant to the
terms of the Shareholders Agreement, the Board of Directors of the Company, or a committee thereof
consisting of non-employee directors (as such term is defined for purposes of Rule 16b-3 under the
Exchange Act), shall, if requested by the Investor, and to the extent then permitted under
applicable law, adopt resolutions and otherwise use reasonable efforts to cause any acquisition
from the Company of Common Shares issued pursuant to this Agreement and Common Shares issuable in
connection with the Metavante Purchase Right or dispositions to the Company of Common Shares issued
pursuant to this Agreement or Common Shares issuable in connection with the Metavante Purchase
Right to be exempt under Rule 16b-3 under the Exchange Act.
5.10. Suspension of Rights under Metavante Stock Purchase Right Agreement; Amendment and
Termination of Metavante Stock Purchase Right Agreement.
(a) Investor and Metavante agree that from and after the date hereof the rights and
obligations of Investor and Metavante under the Metavante Stock Purchase Right Agreement shall be
suspended and in lieu of the Investor’s purchase rights under such Metavante Stock Purchase
Agreement, Investor shall be entitled to exercise the Metavante Purchase Right at the time and on
the terms set forth in Section 3.3 herein. In the event this Agreement is terminated pursuant to
the last sentence of Section 2 herein, Investor and Metavante, in good faith, shall determine the
purchase rights Investor would have had under the Metavante Stock Purchase Right Agreement
(assuming any Quarterly Notices (as defined in such Metavante Stock Purchase Right Agreement) were
delivered to Investor on the date that is 15 days following the end of each calendar quarter during
which Investor’s purchase rights were suspended pursuant to this Section 5.10 and assuming Investor
would have exercised such purchase rights 45 days following the date such Quarterly Notice is
assumed to have been given (or the first business day following such 45th day, if such
day is not a business day)), and Investor shall have 45 days following the date of termination of
this Agreement to exercise such purchase rights for the purchase price determined pursuant to the
Metavante Stock Purchase Right Agreement and from and after the date of termination of this
Agreement, the Metavante Stock Purchase Right Agreement shall remain in full force and effect in
accordance with its terms and Investor’s and Metavante’s respective rights and obligations shall no
longer be deemed to be suspended. Investor and Metavante agree that the provisions of Sections 4.9
and 5.1 through and including 5.7 shall govern this Section 5.10.
(b) Effective as of the date hereof, each of Metavante and Investor hereby agrees that Section
3.2(c) of the Metavante Stock Purchase Right Agreement be, and hereby is, amended and restated in
its entirety as follows:
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“Subject to the proviso below, 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 the number of Subject Shares
equal to the difference (rounded down to the nearest whole share) between (i) all Subject
Shares then still subject to the Purchase Right and (ii) the quotient of (A) the related
Acceleration Purchase Price, divided by (B) the Fair Market Value of a Subject Share,
determined as of three business days before the date of such acceleration, for a Purchase
Price per share equal to $0.01; provided, however, notwithstanding anything
to the contrary in the foregoing, the Purchase Right shall not automatically be deemed
exercised, as a result of, or in connection with, any of the transactions contemplated by,
relating to or resulting from that certain Agreement and Plan of Merger (the “Merger
Agreement”), dated as of March 31, 2009 by and between Fidelity National Information
Services, Inc., a Georgia Corporation, Cars Holdings, LLC, a Delaware limited liability
company and a direct, wholly owned subsidiary of Fidelity National Information Services,
Inc. and the Company, including without limitation, any acceleration of the vesting of the
Subject Employee Options in connection with, or as a result of, any of the transactions
contemplated by the Merger Agreement or actions relating thereto. 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).”
(c) Effective as of the Effective Time, each of Metavante and Investor hereby agrees that the
Metavante Stock Purchase Right Agreement shall be deemed terminated and be of no further force or
effect.
5.11. Entire Agreement. This Agreement constitutes the entire agreement and supersedes all
prior agreements, understandings, representations and warranties, both written and oral, among the
parties with respect to the subject matter hereof and thereof.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement by their authorized
representatives as of the date first above written.
| FIDELITY NATIONAL INFORMATION SERVICES, INC. |
||||
| By: | /s/ Xxx X. Xxxxxxx | |||
| Name: | Xxx X. Xxxxxxx | |||
| Title: | President and CEO | |||
[SIGNATURE PAGE TO STOCK PURCHASE RIGHT AGREEMENT]
| WPM, L.P. | ||||||
| By: | WPM GP, LLC, its general partner | |||||
| By: | /s/ Xxxxx Xxxxx | |||||
| Name: Title: |
Xxxxx Xxxxx Managing Director |
|||||
[SIGNATURE PAGE TO STOCK PURCHASE RIGHT AGREEMENT]
| METAVANTE TECHNOLOGIES, INC. (Solely for the purpose of Sections 5.1, 5.8 and 5.10) |
||||
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxxx, Xx. | |||
| Title: | Senior Executive Vice President | |||
[SIGNATURE PAGE TO STOCK PURCHASE RIGHT AGREEMENT]
