Administrative Services Agreement between Marshall & Ilsley Corporation and Metavante Corporation (July 1, 2000)

Summary

Marshall & Ilsley Corporation (M&I) and Metavante Corporation entered into this agreement on July 1, 2000. Under the agreement, M&I will provide various administrative, corporate, and technical support services to Metavante following Metavante’s initial public offering. The agreement outlines the scope of services, fees, and conditions for service upgrades or extraordinary expenditures, which require separate negotiation. M&I may use subsidiaries or subcontractors to fulfill its obligations, and Metavante agrees to provide necessary access and pay related costs. The agreement also covers reporting, staffing, and the administration of employee benefit plans.

EX-10.4 9 0009.txt FORM OF ADMINISTRATIVE SERVICES AGREEMENT Exhibit 10.4 ------------ ADMINISTRATIVE SERVICES AGREEMENT --------------------------------- THIS ADMINISTRATIVE SERVICES AGREEMENT ("Agreement") dated as of July 1, 2000, is entered into by MARSHALL & ILSLEY 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 --------- DEFINITIONS ----------- 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 ---------- SERVICES -------- Section 2.1. Scope of Services. In consideration of the Base Fee, ----------------- 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 ---------------- 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 ------------------------------------ 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 ----------- 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 -------------------- 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 -------- 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 ------ 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 ------------ 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 2 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 -------------- 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 -------------------------- 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, ---------- 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. 3 ARTICLE III ----------- FEES, BILLING AND PAYMENT ------------------------- Section 3.1. Fees. Metavante agrees that in consideration of each Service ---- 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 ------- 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 ------- 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 ----- 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. 4 ARTICLE IV ---------- TERM OF AGREEMENT ----------------- Section 4.1. Effective Date and Term. The initial term of this Agreement ----------------------- 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 ------- 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 ----------- 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 5 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 --------------------- 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 --------- MISCELLANEOUS ------------- Section 5.1. Independent Contractor Status. M&I shall perform the ----------------------------- 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 --------------- 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 ------------- 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. 6 Section 5.5. Standard of Performance; Remedies; Consequential Damages. In -------------------------------------------------------- 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, ------ 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, Marshall & Ilsley Corporation 770 North Water Street Milwaukee, Wisconsin 53202 Telecopy: (414) 765-7809 Attention: M. A. Hatfield If to Metavante, Metavante Corporation 4900 West Brown Deer Road Brown Deer, Wisconsin ###-###-#### Telecopy: (414) 362-1705 Attention: Norrie Daroga 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 ------------------------------------ shall assign this Agreement in whole or in part without the prior written consent of the other party hereto, which 7 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 ---------------------------- 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 ------------ 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 -------------- 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, ------------------------- 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 ------------ 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 ------------ 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 --------- 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. 8 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. MARSHALL & ILSLEY CORPORATION By:_______________________________ Name:__________________________ Title:_________________________ METAVANTE CORPORATION By:_______________________________ Name:__________________________ Title:_________________________ 9 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. 10