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Exhibit 10
METAVANTE CHANGE OF CONTROL AGREEMENT
_____________________________________
THIS AGREEMENT, entered into as of the 12th day of May, 2004, by and
between XXXXXXXX & XXXXXX CORPORATION ("M&I"), METAVANTE CORPORATION
("Metavante"), and Xxxxx X. Xxxxxxx (the "Executive") (hereinafter
collectively referred to as "the parties").
W I T N E S S E T H :
WHEREAS, Executive is employed by Metavante, a wholly-owned
subsidiary of M&I; and
WHEREAS, M&I wants to induce Executive to remain in Metavante's
employ, particularly in the event of a threat of, or occurrence of, a
Change of Control of Metavante, as defined below, without concern for his
personal financial and employment security; and
WHEREAS, M&I has determined that Executive should be compensated in
the event of a Change of Control of Metavante if Executive's employment is
terminated without Cause, or Executive terminates his or her employment
with Metavante for Good Reason during the Term, both as defined below.
NOW, THEREFORE, for good and adequate consideration, the sufficiency
of which is hereby acknowledged, the parties hereto hereby agree as
follows.
1. Term of Agreement. The "Term" of this Agreement begins on the
date a Change of Control of Metavante occurs and ends on the fourth
anniversary after the date of a Change of Control of Metavante.
2. Change of Control of Metavante. For purposes of this Agreement,
a "Change of Control of Metavante" means a transaction described in
subsections (a), (b), (c), or (d):
(a) Consummation of a sale or other transfer by Metavante of
all or substantially all of its assets to an entity (other than M&I
or an Affiliate of M&I) and M&I and/or its Affiliates own less than
20% of the Equity Interests in the transferee entity. "Affiliate"
shall include any entity controlled by, controlling or under common
control with M&I. "Equity Interests" means voting securities
entitled to vote for the election of directors or other governing
authority of the entity. For example, the liquidation of Metavante
into M&I would not be a Change of Control of Metavante because its
assets would be transferred to M&I. However, the sale of all the
Metavante assets to a third party in which neither M&I and/or an
Affiliate have an Equity Interest ("Party A") would be a Change of
Control of Metavante.
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(b) Consummation of a sale or other transfer by Metavante of
all or substantially all of its assets to an entity (other than M&I
or an Affiliate of M&I), M&I and/or its Affiliates own 20% or more,
but less than 50%, of the Equity Interests in the transferee entity,
and an unrelated party owns a greater Equity Interest than M&I
and/or its Affiliates. For example, the contribution of Metavante
assets to a joint venture in which M&I owns 40% of the Equity
Interests and Party A owns 60% of the Equity Interests would be a
Change of Control of Metavante since M&I owns a lesser Equity
Interest than the other party. However, if M&I owns 40% of the
Equity Interests, Party A owns 30%, and Party B owns 30%, there
would not be a Change of Control of Metavante since M&I owns the
largest Equity Interest.
(c) Consummation of a sale or other transfer by M&I of more
than 80% of the Equity Interests in Metavante to an entity other
than an Affiliate (an "Unrelated Party"). For example, the sale by
M&I of all of the stock of Metavante to Party A would be a Change of
Control of Metavante.
(d) Consummation of a sale or other transfer by M&I of more
than 50% of the Equity Interests in Metavante, but not more than 80%
of the Equity Interests in Metavante, to an Unrelated Party, and an
Unrelated Party owns a greater Equity Interest in Metavante than M&I
and/or its Affiliates. For example, a sale of 60% of the stock of
Metavante to Party A would be a Change of Control of Metavante since
Party A would own a greater Equity Interest in Metavante than M&I.
However, a sale of 40% of the stock of Metavante to Party A would
not be a Change of Control of Metavante if M&I retained 60% of the
Equity Interests.
Notwithstanding the foregoing, the following events would not
constitute a Change of Control of Metavante: (a) distribution of all or a
portion of the Equity Interests of Metavante to M&I shareholders and (b)
an initial public offering ("IPO") of securities in Metavante unless (i)
M&I does not retain 20% or more of the Equity Interests in Metavante or
(ii) M&I retains 50% or less of the Equity Interest in Metavante and is
not the largest shareholder immediately after the IPO. If there is a
Change of Control of Metavante, any reference to Metavante herein shall
also refer to any surviving entity, resulting from such Change of Control
of Metavante.
3. Severance. If, during the Term, Executive's employment with
Metavante is terminated, either by M&I or Metavante, other than for Cause
or Disability or due to Executive's death, or by Executive for Good Reason
(solely as defined in Section 4 of this Agreement), Executive shall be
entitled to the compensation and benefits set forth in Section 7 of this
Agreement, subject to fulfilling the requirement of Executive executing,
and not revoking, a Complete and Permanent Release.
4. Definitions. For purposes of this Agreement, the following
terms shall have the meanings described hereunder:
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(a) Cause. A termination for Cause is a termination
evidenced by a resolution adopted in good faith by a majority of the
Board of Directors of Metavante that Executive willfully,
deliberately and continually failed to substantially perform his
duties (other than a failure resulting from Executive's incapacity
due to physical or mental illness) which failure constitutes gross
misconduct, and results in and was intended to result in
demonstrable material injury to Metavante or M&I, monetary or
otherwise, or committed acts of fraud and dishonesty constituting a
felony, as determined by a final judgment or order of a court of
competent jurisdiction, and resulting or intended to result in gain
to or personal enrichment of Executive at Metavante's or M&I's
expense, provided, however, that no termination of Executive's
employment shall be for Cause as set forth in (i), above, until (a)
Executive shall have had at least sixty (60) days to cure any
conduct or act alleged to provide Cause for termination after a
written notice of demand has been delivered to Executive specifying
in detail the manner in which Executive's conduct violates this
Agreement, and (b) Executive shall have been provided an opportunity
to be heard by the Board (with the assistance of Executive's counsel
if Executive so desires). No act, or failure to act, on Executive's
part, shall be considered "willful" unless he has acted or failed to
act in bad faith and without a reasonable belief that his action or
failure to act was in the best interest of Metavante. During the
60-day cure period, Executive may be put on paid administrative
leave by the management of M&I or Metavante.
(b) Disability. "Disability" shall mean the absence of
Executive from Executive's duties with Metavante on a full-time
basis for one hundred eighty (180) consecutive business days as a
result of incapacity due to mental or physical illness which is
determined to be total and permanent by a physician selected by
Metavante or its insurers and acceptable to Executive or Executive's
legal representative, provided if the parties are unable to agree,
the parties shall request the Xxxx of the Medical College of
Wisconsin to choose such physician. If Metavante determines in good
faith that the Disability of Executive has occurred during the Term
(pursuant to the definition of Disability set forth above), it may
give to Executive written notice in accordance with Section 5 of
this Agreement of its intention to terminate Executive's employment.
In such event, Executive's employment with Metavante shall terminate
effective on the thirtieth (30th) day after receipt of such notice
by Executive (the "Disability Effective Date"), provided that,
within thirty (30) days after such receipt, Executive shall not have
returned to full-time performance of Executive's duties.
(c) Good Reason.
(1) For purposes of this Agreement, "Good Reason" means
the occurrence of any one of the following:
(i) A reduction in Executive's base salary or target
short-term incentive opportunity below that immediately
prior to the Change of Control of Metavante;
(ii) Failure to provide Executive with the same long-
term incentive opportunities or benefits (including
retirement plans) provided to other peer executives of the
entity which employs Executive after the Change of Control
of Metavante; or
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(iii) Transferring Executive to a primary work location
that is more than 30 miles further away from his residence
than the primary work location immediately prior to the
Change of Control of Metavante.
(2) Any event or condition described in Section 4(c)(1)
which occurs prior to the date of the Change of Control of
Metavante but which Executive reasonably demonstrates (i) was
at the request of a third party who has indicated an intention
or taken steps reasonably calculated to effect a Change of
Control of Metavante, or (ii) otherwise arose in connection
with or in anticipation of a Change of Control of Metavante,
shall constitute Good Reason for purposes of this Agreement
notwithstanding that it occurred prior to the date of the
Change of Control of Metavante.
(3) Executive's right to terminate his employment
pursuant to this Section 4(c) shall not be affected by his
incapacity due to physical or mental illness. Executive's
continued employment or failure to give Notice of Termination
shall not constitute consent to, or a waiver of rights with
respect to, any circumstances constituting Good Reason
hereunder.
5. Notice of Termination. Any purported termination by Metavante
or by Executive (other than by death of Executive) shall be communicated
by Notice of Termination to the other. For purposes of this Agreement, a
"Notice of Termination" shall mean a written notice which (i) indicates
the specific termination provision in this Agreement relied upon, (ii) to
the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated, and (iii) the Termination
Date. For purposes of this Agreement, no such purported termination of
employment shall be effective without such Notice of Termination.
6. Definitions.
(a) "Termination Date" shall mean in the case of Executive's
death, his date of death, or in all other cases, the date specified in the
Notice of Termination subject to the following:
(i) If Executive's employment is terminated by Metavante,
the date specified in the Notice of Termination shall be at
least thirty (30) days after the date the Notice of
Termination is given to Executive, provided, however, that in
the case of Disability, Executive shall not have returned to
the full-time performance of his duties during such period of
at least thirty (30) days;
(ii) If Executive's employment is terminated for Good
Reason, the date specified in the Notice of Termination shall
not be more than sixty (60) days after the date the Notice of
Termination is given to Metavante; and
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(iii) In the event that within thirty (30) days
following the date of receipt of the Notice of Termination,
one party notifies the other that a dispute exists concerning
the basis for termination, Executive's employment hereunder
shall not be terminated except after the dispute is finally
resolved and a Termination Date is determined either by a
mutual written agreement of the parties, or by a binding and
final judgment order or decree of a court of competent
jurisdiction (the time for appeal therefrom having expired and
no appeal having been perfected).
(b) Annual Base Salary. "Annual Base Salary" shall mean the
greater of (i) the salary paid or payable to Executive by Metavante
and its affiliated companies in respect of the twelve (12) month
period immediately preceding the month in which the date of a Change
of Control of Metavante occurs, or (ii) Executive's salary on the
Termination Date, including any amounts which were deferred under
applicable plans.
(c) Annual Bonus. "Annual Bonus" shall mean the annual
bonus, if any, awarded to Executive in the last fiscal year
immediately preceding the fiscal year in which a Change of Control
of Metavante occurs.
(d) Recent Average Bonus. "Recent Average Bonus" shall mean
the average annualized (for any fiscal year consisting of less than
twelve (12) full months or with respect to which Executive has been
employed by Metavante for less than twelve (12) full months) bonuses
paid or payable, including any amounts which were deferred under any
applicable plans, to Executive by Metavante in respect of the three
(3) fiscal years immediately preceding the fiscal year in which the
date of the Change of Control occurs.
7. Obligations of Metavante Upon Termination.
(a) Good Reason; Other Than for Cause, Death or Disability.
If, during the Term, M&I or Metavante shall terminate Executive's
employment, other than for Cause, Disability or due to Executive's
death, or Executive shall terminate employment for Good Reason:
(1) M&I shall pay to Executive in a lump sum in cash
within five (5) days after the Termination Date the aggregate
of the following amounts:
(i) The sum of:
(A) Executive's Annual Base Salary through the
Termination Date to the extent not theretofore paid; and
(B) The product of (x) the higher of (I) the Recent
Average Bonus or (II) the Annual Bonus paid or payable,
including any amount deferred, (and annualized for any
fiscal year consisting of less than twelve (12) full
months or for which Executive has been employed for less
than twelve (12) full months) for the most recently
completed fiscal year prior to the Termination Date, if
any (such higher amount being referred to as the
"Highest Annual Bonus") and (y) a fraction, the
numerator of which is the number of days completed in
the current fiscal year through the Termination Date,
and the denominator of which is 365.
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The sum of the amounts described in Clauses (A) and (B)
shall be hereinafter referred to as the "Accrued Obligations";
(ii) The amount equal to the product of (A) three and
(B) the sum of (x) Executive's Annual Base Salary
(increased for this purpose by any Section 401(k)
deferrals, cafeteria plan elections, or other deferrals
that would have increased Executive's Annual Base Salary if
paid in cash to Executive when earned) and (y) Executive's
Highest Annual Bonus;
(iii) A separate lump-sum supplemental retirement
benefit equal to the difference between (1) the actuarial
equivalent (utilizing for this purpose the most favorable
to Executive actuarial assumptions and M&I's contribution
history with respect to the applicable retirement plan,
incentive plans, savings plans and other similar such plans
(or any successor plan thereto) (the "Retirement Plans")
during the twelve (12) month period immediately preceding
the date of a Change of Control of Metavante) of the
benefit payable under the Retirement Plans and any
supplemental and/or excess retirement plan providing
benefits for Executive (the "SERP") which Executive would
receive if Executive's employment continued for an
additional three (3) years after the Termination Date with
annual compensation equal to the sum of the Annual Base
Salary and Highest Annual Bonus, assuming for this purpose
that all accrued benefits and contributions are fully
vested and that benefit accrual formulas and M&I
contributions are no less advantageous to Executive than
those in effect during the twelve (12) month period
immediately preceding the date of a Change of Control of
Metavante, and (2) the actuarial equivalent (utilizing for
this purpose the actuarial assumptions utilized with
respect to the Retirement Plans during the twelve (12)
month period immediately preceding the date of a Change of
Control) of Executive's actual benefit (paid or payable),
if any, under the Retirement Plans and the SERP. For
example, if there were a termination today this
supplemental retirement benefit would be interpreted with
respect to two plans in existence today as follows: (i)
with respect to the Retirement Growth component of the
retirement program of M&I, Executive would receive three
times eight percent (8%) (or twenty-four percent (24%)) of
the sum of Executive's Annual Base Salary (determined in
accordance with this Section 7(a)(1)(ii)) and Executive's
Highest Annual Bonus; and (ii) with respect to the
Incentive Savings component of the retirement program of
Metavante, Executive would receive three times the annual
M&I match of fifty percent (50%) of Executive's maximum
allowable contribution to the Plan assuming Executive's
compensation is as set forth above; and
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(iv) The amount equal to the product of (i) three and
(ii) the sum of (x) the imputed income reflected on
Executive's W-2 attributable to the car provided to
Executive by Metavante or its affiliates, if any, for the
last calendar year ending before the date of a Change of
Control of Metavante and (y) the club dues for Executive
paid by Metavante or its affiliates attributable to such
year, if any.
(2) For thirty-six (36) months after the Termination Date,
M&I shall continue to provide medical and dental benefits to
Executive and/or Executive's family in accordance with the most
favorable plans, practices, programs or policies of M&I and its
affiliated companies applicable generally to other peer executives
who are active employees and their families as in effect from time
to time thereafter; provided, however, that if Executive becomes
reemployed with another employer and is eligible to receive medical
or other benefits under another employer provided plan, the medical
and other benefits described herein shall be secondary to those
provided under such other plan during such applicable period of
eligibility, provided that the aggregate coverage of the combined
benefit plans is no less favorable to Executive, in terms of amounts
and deductibles and costs to him, than the coverage required
hereunder. For purposes of determining eligibility of Executive for
retiree health insurance, Executive shall be considered to have
remained employed until the end of such thirty-six (36) month period
and to have retired on the last day of such period. If Executive
would qualify at the end of such thirty-six (36) month period for
retiree health insurance under M&I's plan guidelines as in existence
on the date of the Change of Control of Metavante, M&I shall provide
to Executive and his or her spouse, for life, retiree health
insurance, subsidized to at least the same percentage extent as
under M&I's plan as in existence on the date of the Change of
Control of Metavante. Such retiree health insurance shall provide
medical benefits to Executive and/or Executive's spouse in
accordance with the most favorable plans, practices, programs or
policies of M&I and its affiliated companies applicable generally to
other peer executives who are active employees and their spouses as
in effect from time to time thereafter; provided, however, that if
Executive and/or Executive's spouse qualifies for coverage by
Medicare or any successor program, M&I may require that Executive
and/or Executive's spouse fully participate in Medicare and pay the
premiums therefor personally.
(3) Executive shall have the right to purchase the car
provided to him by M&I or its affiliates during the twelve (12)
month period immediately preceding the date of a Change of Control
of Metavante, if applicable, (or a comparable car acceptable to
Executive if such car is no longer owned by Metavante or its
affiliates), at the book value thereof on the Termination Date,
exercisable within thirty (30) days after the Termination Date; and
if the car is not purchased, Executive shall return the car to M&I.
(4) To the extent not theretofore paid or provided, M&I
shall timely pay or provide to Executive any other amounts or
benefits required to be paid or provided or which Executive is
eligible to receive pursuant to this Agreement under any plan,
program, policy or practice or contract or agreement of M&I and its
affiliated companies (such other amounts and benefits shall be
hereinafter referred to as the "Other Benefits").
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Notwithstanding anything herein contained to the contrary, the
payments and benefits provided in this Section 7(a) (other than the
Accrued Obligations) shall not be paid or provided to Executive
unless and until he executes a Complete and Permanent Release (the
"Release") in the form attached hereto, and the applicable period
for rescission of the Release has expired. The parties agree that
the Release may be expanded to include any successor company and its
affiliates as "Released Parties," as defined in the Release.
(b) Death. If Executive's employment is terminated by
reason of Executive's death during the Term, this Agreement shall
terminate without further obligations to Executive's legal
representatives under this Agreement, except that M&I shall pay or
provide the Accrued Obligations, six (6) months of Annual Base
Salary, and the Other Benefits. The Accrued Obligations shall be
paid to Executive's estate or beneficiary, as applicable, in a lump
sum in cash within thirty (30) days of the Termination Date. The
six (6) months of Annual Base Salary shall be paid during the six
(6) month period following the Termination Date on a monthly basis.
With respect to the provision of Other Benefits, the term Other
Benefits as utilized in this Section 7(b) shall include, and
Executive's family shall be entitled to receive, benefits at least
equal to the most favorable benefits provided by M&I and any of its
affiliated companies to surviving families of peer executives of M&I
and such affiliated companies under such plans, programs, practices
and policies relating to family death benefits, if any, as in effect
with respect to other peer executives and their families at any time
during the twelve (12) month period immediately preceding the date
of the Change of Control of Metavante or, if more favorable to
Executive and/or Executive's family, as in effect on the date of
Executive's death with respect to other peer executives of M&I and
its affiliated companies and their families.
(c) Disability. If Executive's employment is terminated by
reason of Executive's Disability during the Term, this Agreement
shall terminate without further obligations to Executive, except
that M&I shall pay or provide the Accrued Obligations and the Other
Benefits. The Accrued Obligations shall be paid to Executive in a
lump sum in cash within thirty (30) days of the Termination Date.
With respect to the provision of Other Benefits, the term Other
Benefits as utilized in this Section 7(c) shall include, and
Executive shall be entitled after the Disability Effective Date to
receive, disability and other benefits at least equal to the most
favorable of those generally provided by M&I and its affiliated
companies to disabled executives and/or their families in accordance
with such plans, programs, practices and policies relating to
disability, if any, as in effect generally with respect to other
peer executives and their families at any time during the twelve
(12) month period immediately preceding the date of a Change of
Control of Metavante or, if more favorable to Executive and/or
Executive's family, as in effect at any time thereafter generally
with respect to other peer executives of M&I and its affiliated
companies and their families.
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(d) Cause; Other Than for Good Reason. If Executive's
employment shall be terminated for Cause during the Term, or if
Executive voluntarily terminates employment during the Term for
other than Good Reason, this Agreement shall terminate without
further obligations to Executive other than the obligation to pay to
Executive Annual Base Salary through the Date of Termination and any
other amounts earned or accrued through the Termination Date, in
each case to the extent theretofore unpaid; provided that if
Executive voluntarily terminates, Executive shall receive the
benefits normally provided upon normal or early retirement with
respect to other peer Executives and their families to the extent he
qualifies therefore. All salary or compensation hereunder shall be
paid to Executive in a lump sum in cash within thirty (30) days of
the Date of Termination.
(e) Delinquent Payments. If any of the payments referred to
in this Section 7 are not paid within the time specified after the
Termination Date (hereinafter a "Delinquent Payment"), in addition
to such principal sum, M&I will pay to Executive interest on all
such Delinquent Payments computed at the prime rate as announced
from time to time by M&I Xxxxxxxx & Ilsley Bank, or its successor,
compounded monthly. Notwithstanding the foregoing, no interest
shall be due and owing as regards payments which are delayed because
of Executive's failure to execute the Release or the rescission
thereof.
(f) Vacation Pay. In consideration of all payments made by
M&I to Executive pursuant to this Agreement, Executive hereby waives
any claim he may have for accrued and unpaid vacation pay as of the
Termination Date.
8. No Mitigation. In no event shall Executive be obligated to seek
other employment or take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this Agreement
and such amounts shall not be reduced (except to the extent set forth in
Section 7(a)(2)) whether or not Executive obtains other employment.
9. Excise Tax Payments.
(a) If any payment or distribution to or for the
benefit of Executive, whether paid or payable or distributed
or distributable pursuant to the terms of this Agreement or
otherwise in connection with, or arising out of, his
employment with Metavante (a "Payment" or "Payments"), would
be subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code"), or any
interest or penalties are incurred by Executive with respect
to such excise tax (such excise tax, together with any
interest and penalties, are collectively referred to as the
"Excise Tax"), then Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such
that after payment by Executive of all taxes (including any
interest or penalties imposed with respect to such taxes),
including any Excise Tax, imposed upon the Gross-Up Payment,
Executive retains, or has paid to the taxing authority on his
behalf, an amount of the Gross-Up Payment equal to the Excise
Tax imposed upon the Payments. Notwithstanding the foregoing,
no Gross-Up Payment will be made to Executive if reducing the
amount paid to Executive under Section 7(a)(1)(ii) of this
Agreement by $50,000 or less would avoid the application of
the Excise Tax.
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(b) A determination shall be made as to whether and
when a Gross-Up Payment is required pursuant to this Section 9
and the amount of such Gross-Up Payment, such determination to
be made within fifteen (15) business days of the Termination
Date, or such other time as reasonably requested by M&I or by
Executive (provided Executive reasonably believes that any of
the Payments may be subject to the Excise Tax). Such
determination shall be made by a national independent
accounting firm selected by Executive (the "Accounting Firm").
All fees, costs and expenses (including, but not limited to,
the cost of retaining experts) of the Accounting Firm shall be
borne by M&I and M&I shall pay such fees, costs and expenses
as they become due. The Accounting Firm shall provide
detailed supporting calculations, acceptable to Executive,
both to M&I and Executive. The Gross-Up Payment, if any, as
determined pursuant to this Section 9(b) shall be paid by M&I
to Executive or paid by M&I on behalf of Executive to the
applicable government taxing authorities by means of payroll
tax withholding if required by law or if timely requested by
Executive when payment of all or any portion of the Excise Tax
is due. If the Accounting Firm determines that no Excise Tax
is payable by Executive with respect to a Payment or Payments,
it shall furnish Executive with an unqualified opinion that no
Excise Tax will be imposed with respect to any such Payment or
Payments. Any such initial determination by the Accounting
Firm of the Gross-Up Payment shall be binding upon M&I and
Executive subject to the application of Section 9(c).
(c) As a result of the uncertainty in the application
of Sections 4999 and 280G of the Code, it is possible that a
Gross-Up Payment (or a portion thereof) will be paid which
should not have been paid (an "Overpayment") or a Gross-Up
Payment (or a portion thereof) which should have been paid
will not have been paid (an "Underpayment"). An Underpayment
shall be deemed to have occurred upon notice (formal or
informal) to Executive from any governmental taxing authority
that the tax liability of Executive (whether in respect of the
then current taxable year of Executive or in respect of any
prior taxable year of Executive) may be increased by reason of
the imposition of the Excise Tax on a Payment or Payments with
respect to which M&I has failed to make a sufficient Gross-Up
Payment. An Overpayment shall be deemed to have occurred upon
a "Final Determination" (as hereinafter defined) that the
Excise Tax shall not be imposed upon a Payment or Payments
with respect to which Executive had previously received a
Gross-Up Payment. A Final Determination shall be deemed to
have occurred when Executive has received from the applicable
governmental taxing authority a refund of taxes or other
reduction in his tax liability by reason of the Overpayment
and upon either (i) the date a determination is made by, or an
agreement is entered into with, the applicable governmental
taxing authority which finally and conclusively binds
Executive and such taxing authority, or in the event that a
claim is brought before a court of competent jurisdiction, the
date upon which a final determination has been made by such
court and either all appeals have been taken and finally
resolved or the time for all appeals has expired or (ii) the
expiration of the statute of limitations with respect to
Executive's applicable tax return. If an Underpayment occurs,
Executive shall promptly notify M&I and M&I shall pay to
Executive at least five (5) business days prior to the date on
which the applicable governmental taxing authority has
requested payment, an additional Gross-Up Payment equal to the
amount of the Underpayment plus any interest and penalties
imposed on the Underpayment. If an Overpayment occurs, the
amount of the Overpayment shall be treated as a loan by M&I to
Executive and Executive shall, within ten (10) business days
of the occurrence of such Overpayment, pay to M&I the amount
of the Overpayment plus interest at an annual rate equal to
the rate provided for in Section 1274(b)(2)(B) of the Code
from the date the Gross-Up Payment (to which the Overpayment
relates) was paid to Executive.
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(d) If no Gross-Up Payment is made because reducing the
Payments to Executive under Section 7(a)(2)(ii) of this Agreement by
$50,000 or less would avoid the application of the Excise Tax, then
the amount paid to Executive under Section 7(a)(2)(ii) of this
Agreement shall be reduced by the amount necessary to avoid the
Excise Tax; provided, however, the reduction will only be made if
doing so would result in Executive retaining more after-tax than if
the reduction were not made.
10. Unauthorized Disclosure. During the term of Executive's
employment with Metavante, and during the two-year period following the
Termination Date, Executive shall not make any Unauthorized Disclosure.
For purposes of this Agreement, "Unauthorized Disclosure" shall mean
disclosure by Executive without the consent of the Board of M&I to any
person, other than an employee of Metavante or a person to whom disclosure
is reasonably necessary or appropriate in connection with the performance
by Executive of his duties as an executive of Metavante or as may be
legally required, of any confidential information obtained by Executive
while in the employ of Metavante (including, but not limited to, any
confidential information with respect to any of Metavante's customers or
methods of operation) the disclosure of which he knows or has reason to
believe will be materially injurious to Metavante or M&I; provided,
however, that such term shall not include the use or disclosure by
Executive, without consent, of any information known generally to the
public (other than as a result of disclosure by him in violation of this
Section 10) or any information not otherwise considered confidential by a
reasonable person engaged in the same business as that conducted by
Metavante. Notwithstanding the foregoing, Executive's obligation
hereunder not to make any Unauthorized Disclosure shall continue after the
end of the two-year period following his termination of employment with
Metavante as regards any information which is a trade secret as defined in
Section 134.90 of the Wisconsin Statutes. In no event shall an asserted
violation of this Section 10 constitute a basis for deferring or
withholding any amounts otherwise payable to Executive under this
Agreement.
11. Successors and Assigns.
(a) This Agreement shall be binding upon and shall inure to
the benefit of M&I, Metavante, its successors and assigns and M&I
shall require any successor or assign (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to expressly assume
and agree to perform this Agreement in the same manner and to the
same extent that M&I and Metavante would be required to perform if
no such succession or assignment had taken place.
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(b) Neither this Agreement nor any right or interest
hereunder shall be assignable or transferable by Executive, his
beneficiaries or legal representatives, except by will or by the
laws of descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by Executive's legal representative.
12. Legal Fees and Expenses. M&I, or a successor entity, shall pay
all legal fees and related expenses (including the costs of experts,
evidence and counsel) reasonably incurred by Executive as they become due
as a result of (i) Executive's hearing before the Board as contemplated in
Section 4(a) of this Agreement, (ii) a dispute between Executive and the
Internal Revenue Service (or any other taxing authority) with regard to an
"Underpayment" (as defined in Section 9 of this Agreement), or (iii)
Executive seeking to obtain or enforce any right or benefit provided by
this Agreement or by any other plan or arrangement maintained by M&I or
its affiliate under which Executive is or may be entitled to receive
benefits.
13. Notice. For the purposes of this Agreement, notices and all
other communications provided for in this Agreement (including the Notice
of Termination) shall be in writing and shall be deemed to have been duly
given when personally delivered or sent by certified mail, return receipt
requested, postage prepaid, if to M&I, to Xxxxxxxx & Xxxxxx Corporation,
000 X. Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attn: Sr. V.P.-Human
Resources, if to Metavante, to Metavante Corporation, 0000 Xxxx Xxxxx Xxxx
Xxxx, Xxxxx Xxxx, XX 00000-0000, Attn: Chief Executive Officer, or if to
Executive, to the address set forth below Executive's signature, or to
such other address as the party may be notified. All notices and
communications shall be deemed to have been received on the date of
delivery thereof or on the third business day after the mailing thereof,
except that notice of change of address shall be effective only upon
receipt.
14. Non-Exclusivity of Rights. Nothing in this Agreement shall
prevent or limit Executive's continuing or future participation in any
benefit, bonus, incentive or other plan or program provided by M&I or any
of its affiliates for which Executive may qualify. Amounts which are
vested benefits or which Executive is otherwise entitled to receive under
any plan or program of M&I or any of its affiliates shall be payable in
accordance with such plan or program, except as explicitly modified by
this Agreement.
15. Change of Control of M&I. In no event will Executive be
entitled to any compensation or benefits under Section 7 of this Agreement
if there is a Change of Control of M&I (as defined in that certain Change
of Control Agreement between M&I and Executive dated as of January 13,
2003 ("M&I Change of Control Agreement")), prior to, or concurrent with, a
Change of Control of Metavante. In that event, Executive's rights and
responsibilities will be governed solely by the M&I Change of Control
Agreement. In addition, if there is a Change of Control of Metavante, the
M&I Change of Control Agreement will cease and Executive will not be
entitled to any compensation or benefits under the M&I Change of Control
Agreement. In no event will Executive be entitled to receive compensation
or benefits under both this Agreement and the M&I Change of Control
Agreement.
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16. Settlement of Claims. M&I's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right
which Metavante may have against Executive or others.
17. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by Executive and M&I. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreement or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been
made by either party which are not expressly set forth in this Agreement.
18. Employment. Executive and M&I acknowledge that the employment
of Executive by Metavante is "at will" and prior to the date of a Change
of Control of Metavante, may be terminated by either Executive, M&I or
Metavante at any time. Moreover, if prior to the date of a Change of
Control of Metavante, Executive's employment with Metavante terminates,
Executive shall have no further rights under this Agreement.
19. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Wisconsin without giving effect to the conflict of law principles thereof.
20. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof.
21. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements,
if any, understandings and arrangements, oral or written, between the
parties hereto with respect to the subject matter hereof.
22. Headings. The headings herein contained are for reference only
and shall not affect the meaning or interpretation of any provision of
this Agreement.
23. Modification. No provision of this Agreement may be modified
or amended unless such modification or amendment is agreed to in writing
signed by both Executive, M&I and Metavante.
24. Withholding. M&I or Metavante shall be entitled to withhold
from amounts paid to Executive hereunder any federal, estate or local
withholding or other taxes or charges which it is, from time to time,
required to withhold. M&I or Metavante shall be entitled to rely on an
opinion of counsel if any question as to the amount or requirement of any
such withholding shall arise.
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IN WITNESS WHEREOF, M&I and Metavante have caused this Agreement to
be executed by their duly authorized officers, and Executive has executed
this Agreement, as of the day and year first above written.
XXXXXXXX & ILSLEY CORPORATION
By: /s/ Xxxx X. Xxxxxx
______________________________
Xxxx X. Xxxxxx
Senior Vice President
METAVANTE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
______________________________
Xxxxxx X. Xxxxxxx
Chairman
EXECUTIVE:
/s/ Xxxxx X. Xxxxxxx
______________________________
Xxxxx X. Xxxxxxx
Address:
_______________________________
_______________________________
MW3yr Metavante COC Agreement.doc
