Exhibit 10.4
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ADMINISTRATIVE SERVICES AGREEMENT
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THIS ADMINISTRATIVE SERVICES AGREEMENT ("Agreement") dated as of July
1, 2000, is entered into by XXXXXXXX & XXXXXX CORPORATION, a Wisconsin
corporation ("M&I"), and METAVANTE CORPORATION, a Wisconsin corporation
("Metavante").
RECITALS
WHEREAS, Metavante provides data processing services to the financial
services industry (the "Metavante Business"); and
WHEREAS, this Agreement is entered into in conjunction with an initial
public offering of Metavante's common stock, $.01 par value per share (the
"Metavante IPO"); and
WHEREAS, after the Metavante IPO, Metavante will continue to need
certain administrative services to be provided by M&I to Metavante with respect
to the operation of the Metavante Business for a period of time from and after
the Closing Date (as hereafter defined); and
WHEREAS, the parties desire to enter into an agreement to provide for
such services.
NOW, THEREFORE, in consideration of the premises and the mutual
promises of the parties contained herein, the parties agree as follows:
ARTICLE I
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DEFINITIONS
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As used in this Agreement, the following terms shall have the
indicated meanings:
"Base Fee" means the amount identified on Exhibit A attached hereto.
The Base Fee shall be paid for the Services described hereunder, exclusive of
any Service Upgrades, Reimbursable Costs and Extraordinary Expenditures.
"Closing Date" means the date the Metavante IPO is closed.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations thereunder.
"Reimbursable Costs" means [out-of-pocket expenses incurred by M&I in
providing the Services hereunder, but excludes subcontractor fees and corporate
overhead expenses of M&I].
"Services" means those corporate, administrative and technical
services to be provided by M&I to Metavante as set forth in Exhibit A attached
hereto, and as the same may be amended and revised from time to time in
accordance with the terms hereof.
ARTICLE II
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SERVICES
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Section 2.1. Scope of Services. In consideration of the Base Fee,
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M&I shall continue to provide the various administrative support services
currently provided by M&I to Metavante, as listed on Exhibit A to this
Agreement.
Section 2.2.1. Service Upgrades. The parties acknowledge that
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modifications, upgrades, and additions to the administrative services described
herein may be necessary to adequately service the Metavante Business
(collectively, "Service Upgrades"). Charges for Service Upgrades are not
included in the Base Fee. The parties agree to negotiate in good faith
regarding any Service Upgrades. It is the intention of the parties that to the
extent practicable, M&I will use reasonable efforts to provide Metavante with
any reasonable Service Upgrades requested by Metavante, and that the parties
will negotiate reasonable fees, reimbursement rates or other charges to
adequately compensate M&I for the Service Upgrades.
Section 2.2.2. Long-Term Commitments or Investments. The parties
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acknowledge and agree that certain long-term commitments or investments (the
"Extraordinary Expenditures") may be necessary to service the Metavante Business
as contemplated herein. Charges for Extraordinary Expenditures are not included
in the Base Fee. The parties agree to negotiate in good faith regarding the
incurrence by M&I of any Extraordinary Expenditures. The parties acknowledge
that no such costs, commitments or investments exist as of the date of this
Agreement.
Section 2.3. Limitations. Notwithstanding the foregoing, the nature
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and scope of the Services shall not be greater than that which M&I provided to
Metavante prior to the Closing Date and shall not be greater than, or interfere
with, those services which M&I provides during the term of this Agreement to its
own internal organization. Any upgrades and improvements of such services that
M&I provides to its own internal organization will be made available to
Metavante at M&I's election. Metavante agrees that its requests for Services
shall be reasonable, as to both the nature and the timing of the Services to be
provided.
Section 2.4. Location of Services. Except as expressly contemplated
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by the terms of this Agreement, the Services to be performed are contemplated to
be performed by M&I from Milwaukee, Wisconsin, or such other location as
determined by M&I in its sole discretion.
Section 2.5. Staffing. In consultation with Metavante, M&I shall
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determine both the staffing required and particular personnel assigned to
perform the Services, including but not limited to clerical staff, technicians,
professionals or otherwise.
Section 2.6. Access. Metavante agrees to grant access to
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representatives of M&I to Metavante's facilities and its employees, agents and
consultants for the sole purpose of providing the Services provided for under
this Agreement, as necessary.
Section 2.7. Subsidiaries. The parties hereto agree that (i) the
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Services to be provided to Metavante under this Agreement will, at Metavante's
request, be provided to subsidiaries of Metavante and (ii) M&I may satisfy its
obligation to provide or procure the Services hereunder
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by causing one or more of its subsidiaries to provide or procure such Services.
With respect to Services provided to, or procured on behalf of, any subsidiary
of Metavante, (i) Metavante agrees to pay on behalf of such subsidiary all
amounts payable by or in respect of such Services and (ii) references in this
Agreement to Metavante shall be deemed to include such subsidiary.
Section 2.8. Subcontractors. M&I may hire or engage one or more
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subcontractors to perform any or all of its obligations under this Agreement.
M&I shall require such subcontractors, as a condition to their engagement, to
agree to be bound by the provisions substantially identical to those included in
this Agreement. Subject to Section 5.5 hereof, M&I shall in all cases remain
primarily responsible for all obligations undertaken by it in this Agreement
with respect to the scope, quality and nature of the Services provided to
Metavante.
Section 2.9. Reports; Books and Records. M&I shall maintain for and
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provide Metavante with or shall cause to be maintained for and provided to
Metavante data or reports requested by Metavante relating to (i) benefits paid
to or on behalf of Metavante employees under M&I employee benefit plans,
including, but not limited to, financial statements, claims history and census
information, (ii) information relating to the Services that is required to
satisfy any reporting or disclosure requirement, and (iii) other information,
including accounting reports, relating to the Services, as may be kept by M&I in
the ordinary course of its business. M&I shall provide, or cause to be
provided, to Metavante (i) regular periodic reports of such information at such
times and in such form as mutually agreed by the parties, and (ii) such other
related information within a reasonable period of time after it is requested.
Section 2.10. Delegation. Metavante hereby delegates to M&I final,
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binding, and exclusive authority, responsibility, and discretion to interpret
and construe the provisions of employee benefit plans in which Metavante has
elected to participate and which are administered by M&I under this Agreement
(collectively, the "Employee Plans"). M&I may further delegate such authority
to plan administrators to:
(i) provide administrative and other services;
(ii) reach factually supported conclusions consistent with the terms
of the Employee Plans;
(iii) make a full and fair review of each claim, denial, and decision
related to the provision of benefits provided or arranged for under the
Employee Plans, pursuant to the requirements of ERISA, if within sixty (60)
days after receipt of the notice of denial, a claimant requests in writing
a review for reconsideration of such decisions. The administrator shall
notify the claimant in writing of its decision on review. Such notice
shall satisfy all ERISA requirements relating thereto; and
(iv) notify the claimant in writing of its decision on review.
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ARTICLE III
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FEES, BILLING AND PAYMENT
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Section 3.1. Fees. Metavante agrees that in consideration of each Service
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described in this Agreement, Metavante shall pay M&I the Base Fee for that
Service. The entire Base Fee for a Service shall be paid by Metavante for each
period during which a Service is available under this Agreement, regardless of
whether such Service was used by Metavante during such period. Metavante shall
also pay M&I for all Service Upgrades in accordance with agreed upon rates and
fees.
In addition, Metavante shall reimburse M&I for all Reimbursable Costs
incurred by M&I in performing the Services. In the event that any Services are
terminated during a fiscal year in accordance with Section 4.3, payments shall
be made for such Services through the effective date of cancellation, said
payments to be a pro rata portion of the charges for such Services. Metavante
shall also pay M&I for any Reimbursable Costs incurred with respect to such
Services prior to cancellation of such Services, plus Metavante shall compensate
M&I for any Extraordinary Expenditures made by M&I in reliance upon this
Agreement.
Section 3.2. Billing. Metavante shall pay the Base Fee for Services
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rendered within each month during the term of this Agreement. No invoices for
the Base Fee shall be sent, and no backup documentation shall be required for
the Services included in the Base Fee; provided, however, that M&I shall provide
Metavante with a quarterly statement of fees and costs incurred hereunder for
informational purposes only. The fees for Service Upgrades, Reimbursable Costs
and Extraordinary Expenditures shall be invoiced monthly by the thirtieth (30th)
calendar day of the calendar month next following the calendar month in which
the Service Upgrades were performed or Reimbursable Costs and Extraordinary
Expenditures were incurred. Such invoices shall specify the value of Service
Upgrades determined in accordance with the agreed upon arrangements, and shall
be accompanied by supporting detail for all Service Upgrades, Reimbursable Costs
and Extraordinary Expenditures.
Section 3.3. Payment. Metavante shall pay for all Services provided
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hereunder during each calendar month within ten (10) days following the end of
each such month. In the event a written statement is sent by M&I, payment shall
be made within ten (10) days following receipt of such statement.
Section 3.4. Taxes. Metavante will reimburse M&I for all sales, use or
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excise taxes levied on amounts payable by Metavante to M&I pursuant to this
Agreement, provided that Metavante shall not be responsible for remittance of
such taxes to applicable tax authorities. Metavante shall not be responsible
for any ad valorem, income, franchise, privilege, value added or occupational
taxes of M&I. M&I shall cooperate with Metavante's efforts to identify taxable
and nontaxable portions of amounts payable pursuant to this Agreement (including
segregation of such portions on invoices) and to obtain refunds of taxes paid,
where appropriate. Metavante may furnish M&I with certificates or other
evidence supporting applicable exemptions from sales, use or excise taxation.
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ARTICLE IV
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TERM OF AGREEMENT
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Section 4.1. Effective Date and Term. The initial term of this Agreement
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shall commence on the Closing Date and, except as otherwise provided below,
continue for a period of one hundred eighty (180) days (the "Initial Term").
This Agreement will be renewed automatically thereafter for successive thirty
(30) day terms (each a "Renewal Term") unless either Metavante or M&I elects not
to renew this Agreement by giving the other party written notice of its
intention not to renew the Agreement not less than thirty (30) days prior to the
end of the Initial Term or fifteen (15) days prior to the end of any Renewal
Term. Either party may terminate any specified Service under the prior notice
provision in Section 4.3(c).
Section 4.2. Reviews. Reviews of the scope and pricing of the Services
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being provided as of the applicable annual review date may be scheduled by
either party upon providing thirty (30) days' advance written notice. Each such
review and any resulting amendment of this Agreement will be undertaken in good
faith and with as much advance notification, lead time and discussion as is
reasonable under the circumstances, in the spirit of providing appropriate
services to Metavante at a fair cost and without undue burden to M&I.
Accordingly, before any termination or significant alteration of the scope of
Services is made, the parties shall take into account all elements of cost,
inconvenience and other direct and indirect impact on both parties of
terminating or altering the Services.
Section 4.3. Termination. This Agreement and the scope of the Services
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may be reduced, suspended, or terminated as follows:
(a) Either party hereto may terminate this Agreement immediately
upon written notice to the other party (i) in the event of the other
party's voluntary bankruptcy or insolvency, (ii) in the event that the
other party shall make an assignment for the benefit of creditors, or (iii)
in the event that a petition shall have been filed against the other party
under a bankruptcy law, a corporate reorganization law or any other law for
relief of debtors (or other law similar in purpose or effect).
(b) If either party hereto (the "Defaulting Party") shall fail
adequately to perform in any material respect any of its material
obligations under this Agreement, whether voluntarily or involuntarily or
as a result of any law or regulation or otherwise, the other party hereto
shall have the option to terminate this Agreement upon sixty (60) days'
written notice (which shall be reduced to thirty (30) days' written notice
in the event of a failure to make payment in accordance with the terms
hereof) to the Defaulting Party specifying the respects in which the
Defaulting Party has so failed to perform its obligations under this
Agreement, unless during such period the Defaulting Party shall have
substantially remedied the default therein specified.
(c) Following the Initial Term, either party may terminate any of
the Services by giving the other party written notice at least fifteen (15)
days prior to the end of the Renewal Term. For purposes of this Section
4.3(c), Services may only be terminated as to a category for which there is
a specified charge on Exhibit A unless the other party
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agrees to a partial Services reduction and a corresponding reduction in the
appropriate charge is agreed between the parties.
Section 4.4. Transition Assistance. Prior to and for a period of one
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hundred twenty (120) days following the termination of this Agreement or the
provisions of any of the Services, including any Service terminated pursuant to
Section 4.3(c), M&I shall provide, at Metavante's request and expense,
transition services with respect to the terminated Services and assistance in
engaging or training another person or persons to provide such Services or their
equivalent. M&I shall provide Metavante full access to all records and other
information relating to the Services provided by M&I immediately preceding such
termination.
ARTICLE V
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MISCELLANEOUS
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Section 5.1. Independent Contractor Status. M&I shall perform the
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Services hereunder as an independent contractor. Nothing in this Agreement
shall constitute or be deemed to constitute a partnership or joint venture
between the parties hereto, or, except to the extent provided in Section 2.10,
constitute or be deemed to constitute any party as the agent or employee of the
other party for any purpose whatsoever and neither party shall have authority or
power to bind the other or to contract in the name of, or create a liability
against, the other in any way or for any purpose. Each party shall be
responsible for any injury or death to its own employees, including all workers'
compensation claims or liabilities resulting therefrom, and each such party
shall remain responsible for reporting its income and paying its own taxes.
Section 5.2. Confidentiality. The parties each agree that they will not
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divulge to any third party, or to any person within each respective corporation
who does not have a need to know, any confidential matters relating to each
other's business and the businesses of the other party's customers, vendors,
employees or competitors which may become known by reason of performance of the
Services described in this Agreement; provided, however, that the obligations of
either party under this section shall not apply to information which has been in
the public domain or becomes in the public domain without breach of this
Agreement or which a party is legally obligated to disclose. The obligations of
the parties hereto set forth in this section shall survive the expiration or
termination of this Agreement for a period of one (1) year.
Section 5.3. [Reserved.]
Section 5.4. Force Majeure. Each party shall be excused for failure to
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perform any part of this Agreement due to events beyond its control, including
but not limited to fire, storm, flood, earthquake, explosion, accident, riots
and other civil disturbances, sabotage, strikes or other labor disturbances,
injunctions, transportation embargoes or delays, failure of performance of third
parties necessary for the parties' performance under this Agreement (but
excluding subcontractors or agents of M&I), or the laws or regulations of the
federal, state or local government or branch or agency thereof; provided,
however, no force majeure event shall excuse the obligation of the party
claiming the benefit of a force majeure event from paying the applicable fees
for any services provided by the other party.
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Section 5.5. Standard of Performance; Remedies; Consequential Damages. In
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performing its obligations under this Agreement, M&I represents that it will use
the same standard of care and good faith as it uses in performing services for
its own account. M&I agrees to exercise reasonable diligence to correct errors
or deficiencies in the Services provided by it hereunder. EXCEPT AS EXPRESSLY
SET FORTH IN THIS AGREEMENT, M&I MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATION OR
WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARISING OUT
OF THIS AGREEMENT AND THE SERVICES TO BE PROVIDED HEREUNDER. The sole remedy of
Metavante for any claim relating to the performance or nonperformance of the
Services shall be a refund by M&I to Metavante of any charges or fees paid for
the applicable Services, except that this limitation on remedies shall not apply
to claims arising out of the gross negligence or willful misconduct of M&I. In
addition, in no event shall either party be liable to the other for special,
punitive, incidental or consequential damages arising out of this Agreement,
except that each party shall be liable for such damages arising out of its own
gross negligence or willful misconduct.
Section 5.6. Notice. Any notice, request, designation, direction, demand,
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election, acceptance or other communication shall be in writing and shall be
effective and deemed to have been given when it is (i) mailed postage prepaid,
by certified first class mail, return receipt requested, addressed to a party
and received by such party; (ii) hand or courier delivered; or (iii) sent by
telecopy with receipt confirmed, as follows:
If to M&I,
Xxxxxxxx & Xxxxxx Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: M. A. Xxxxxxxx
If to Metavante,
Metavante Corporation
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxxx
Any party may from time to time designate another address to which notice
or other communication shall be addressed or delivered to such party and such
new designation shall be effective on the later of (i) the date specified in the
notice or (ii) receipt of such notice by the intended recipient.
Section 5.7. Assignability; Successor and Assigns. Neither party hereto
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shall assign this Agreement in whole or in part without the prior written
consent of the other party hereto, which
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consent shall not be unreasonably withheld. This Agreement shall inure to the
benefit of and shall be binding upon the successor and permitted assigns of the
parties hereto.
Section 5.8. No Third Party Beneficiaries. Each of the provisions of this
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Agreement is for the sole and exclusive benefit of the parties hereto
respectively, as their interests may appear, and shall not be deemed for the
benefit of any other person or entity or group of persons or entities.
Section 5.9. Severability. If any term or condition of this Agreement
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shall be held invalid in any respect, such invalidity shall not affect the
validity of any other term or condition hereof.
Section 5.10. Applicable Law. This Agreement shall be construed under the
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laws of the State of Wisconsin and the rights and obligations of the parties
shall be determined under the substantive law of Wisconsin, without giving
effect to Wisconsin's conflict of law rules or principles.
Section 5.11. Amendment or Modification. This Agreement may be amended,
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modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties, or in the case of a waiver, by the party waiving compliance. Any
waiver by either party hereto of any condition, or of the breach of any
provision or term in any one or more instances shall not be deemed to be nor
construed as a further or continuing waiver of any such condition, or of the
breach of any other provision or term of this Agreement.
Section 5.12. Construction. Descriptive headings to sections and
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paragraphs are for convenience only and shall not control or affect the meaning
or construction of any provisions in this Agreement.
Section 5.13. Counterparts. This Agreement may be executed in two
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counterparts, each of which shall constitute an original, and both of which,
when taken together, shall constitute one and the same instrument.
Section 5.14. Look-Back. The parties acknowledge that the intent of this
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Agreement is to accurately capture the scope and nature of the administrative
services provided to Metavante by M&I as of the date hereof, so that such
services may continue uninterrupted for the term of this Agreement. Both
parties have made a good faith attempt to identify all of the administrative
services provided to Metavante by M&I as of the date hereof. If, however, it is
later determined that the parties unintentionally omitted a description of
services or charges therefor, both parties shall negotiate in good faith to
amend this Agreement to include such services and charges, and charges and
credits for such additional services shall be retroactive back to the
commencement date of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the parties as of the date first written above.
XXXXXXXX & ILSLEY CORPORATION
By:_______________________________
Name:__________________________
Title:_________________________
METAVANTE CORPORATION
By:_______________________________
Name:__________________________
Title:_________________________
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Index to Exhibits
Exhibit A Base Fees and Services
The above exhibit has been omitted. This exhibit will be furnished
supplementally to the Securities and Exchange Commission upon request.
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