Exhibit 10.1
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this "Agreement") is entered
into on March 31, 2000 between Deluxe Corporation, a Minnesota corporation
("Deluxe"), and eFunds Corporation, a Delaware corporation ("eFunds").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in Article I hereof.
RECITALS
WHEREAS, the Board of Directors of Deluxe has determined that it would
be appropriate and desirable to completely separate the eFunds Business from
Deluxe;
WHEREAS, the Boards of Directors of Deluxe and eFunds have each
determined that it would be appropriate and desirable for Deluxe to contribute
and transfer to eFunds, and for eFunds to receive and assume, directly or
indirectly substantially all of the assets and liabilities currently associated
with the eFunds Business, including those assets and liabilities currently held
directly by Deluxe and the stock or similar interests currently held by Deluxe
in subsidiaries and other entities that conduct such business;
WHEREAS, Deluxe and eFunds intend that the contribution of assets by
Deluxe and the assumption of liabilities by eFunds will qualify as a tax-free
reorganization under Section 368(a)(1)(D) of the Internal Revenue Code of 1986,
as amended (the "Code");
WHEREAS, Deluxe and eFunds currently contemplate that, following the
contribution of assets and assumption of liabilities, eFunds will make an
initial public offering of an amount of its voting stock that will reduce
Deluxe's ownership of eFunds single class of voting stock to not less than
80.1%;
WHEREAS, Deluxe and eFunds currently contemplate that, several months
following such initial public offering, Deluxe will distribute to the holders of
its common stock, by means of an exchange offer and/or a pro rata distribution
of all of the shares of eFunds common stock owned by Deluxe (the
"Distribution");
WHEREAS, Deluxe and eFunds intend that the Distribution will be
tax-free to eFunds, Deluxe and Deluxe's shareholders under Section 355 of the
Code;
WHEREAS, Deluxe and eFunds intend in this Agreement, including the
Exhibits and Schedules attached hereto, to set forth the principal arrangements
between them regarding the transfer of assets and liabilities in connection with
the separation of the eFunds Business from Deluxe; and
WHEREAS, Deluxe and eFunds intend that entering into this Agreement
will constitute the adoption of a plan of reorganization under Section
368(a)(1)(D) of the Code.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Defined Terms. The following terms, as used herein, shall
have the following meanings:
"Affiliates" means, with respect to any specified Person, any Person
that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with such specified Person; provided,
however, that for purposes of this Agreement, (i) Deluxe and its Subsidiaries
(other than eFunds and its Subsidiaries) shall not be considered Affiliates of
eFunds and (ii) eFunds and its Subsidiaries shall not be considered Affiliates
of Deluxe;
"Assets" means, except for cash and cash equivalents, any and all
assets, properties and rights (including goodwill), wherever located (including
in the possession of vendors or other third parties or elsewhere), whether real,
personal or mixed, tangible, intangible or contingent, in each case whether or
not recorded or reflected or required to be recorded or reflected on the books
and records or financial statements of any Person, including the following:
(i) all accounting and other books, records and files whether
in paper, microfilm, microfiche, computer tape or disc, magnetic tape
or any other form;
(ii) all apparatus, computers and other electronic data
processing equipment, fixtures, machinery, equipment, furniture, office
equipment, automobiles, trucks, aircraft, rolling stock, vessels, motor
vehicles and other transportation equipment, special and general tools,
test devices, prototypes and models and other tangible personal
property;
(iii) all inventories of materials, parts, raw materials,
supplies, work-in-process and finished goods and products;
(iv) all interests in real property of whatever nature,
including easements, whether as owner, mortgagee or holder of a
security interest, lessor, sublessor, lessee, sublessee or otherwise;
(v) all interests in any capital stock or other equity
interests of any Subsidiary or any other Person; all bonds, notes,
debentures or other securities issued by any Subsidiary or any other
Person; all loans, advances or other extensions of credit or capital
contributions to any Subsidiary or any other Person; and all other
investments in securities of any Person;
(vi) all license agreements, leases of personal property, open
purchase orders for raw materials, supplies, parts or services,
unfilled orders for the manufacture and sale of products and other
contracts, agreements or commitments;
2
(vii) all notes, loans, accounts receivable and interests as a
beneficiary under letters of credit, advances and performance and
surety bonds;
(viii) all written technical information, data,
specifications, research and development information, engineering
drawings, operating and maintenance manuals, and materials and analyses
prepared by consultants and other third parties;
(ix) all Intellectual Property and licenses from third Persons
granting the right to use any Intellectual Property;
(x) all computer applications, programs and other software,
including operating software, network software, firmware, middleware,
design software, design tools, systems documentation and instructions;
(xi) all cost information, sales and pricing data, customer
prospect lists, supplier records, customer and supplier lists, customer
and vendor data, correspondence and lists, product literature, artwork,
design, development and manufacturing files, vendor and customer
drawings, formulations and specifications, quality records and reports
and other books, records, studies, surveys, reports, plans and
documents;
(xii) all rights under contracts or agreements, all claims or
rights against any Person arising from the ownership of any Asset, all
rights in connection with any bids or offers and all claims, choses in
action or similar rights, whether accrued or contingent;
(xiii) all rights under insurance policies and all rights in
the nature of insurance, indemnification or contribution;
(xiv) all licenses (including radio and similar licenses),
permits, approvals and authorizations which have been issued by any
Governmental Authority;
(xv) interest rate, currency, commodity or other swap, collar,
cap or other hedging or similar agreements or arrangements.
"Contracts" means any contract, agreement, lease, license, sales order,
purchase order, instrument or other commitment that is binding on any Person or
any part of its property under applicable law.
"Contribution Date" means March 31, 2000.
"Deluxe Group" means Deluxe, each Subsidiary and Affiliate of Deluxe
and each Person that becomes a Subsidiary or Affiliate of Deluxe after the
Contribution Date.
"eFunds Assets" means all of Deluxe's right, title and interest in and
to all Assets that (i) are, except as set forth on Schedule 2.1(c) or as
otherwise provided herein, reflected in the
3
eFunds Financial Statements and not disposed of by Deluxe after the date thereof
and before the Contribution Date (including assets written off or expensed but
still used by eFunds) or (ii) are acquired by the eFunds Businesses after the
date of the eFunds Financial Statements and would be reflected in the financial
statements of eFunds as of the Contribution Date if such financial statements
were prepared using the same accounting principles under which the eFunds
Financial Statements were prepared, or (iii) are expressly provided by this
Agreement to be transferred to eFunds, or (iv) except as otherwise provided by
express agreement of the parties, are used exclusively by the eFunds Businesses
as of the Contribution Date.
"eFunds Business" means the business and operations of eFunds as
currently conducted by eFunds, iDLX Corporation, eFunds Holding Ltd., Connex
Europe SRL, eFunds Overseas, Inc. (f/k/a Deluxe Overseas, Inc.), eFunds
Corporation, Deluxe Payment Protection Systems,Inc., Chex Systems, Inc. and
Analytic Research Technologies, Inc. (f/k/a Deluxe Analytic Research
Technologies, Inc.), and as such business and operations will continue following
the Contribution Date.
"eFunds Financial Statements" means the audited financial statements
(including the notes thereto) of eFunds for the year ended December 31, 1999, a
copy of which is set forth as Exhibit A hereto.
eFunds Group. "eFunds Group" means eFunds, each Subsidiary and
Affiliate of eFunds immediately after the Contribution Date and each Person that
becomes a Subsidiary or Affiliate of eFunds after the Contribution Date.
"eFunds Liabilities" means all of the Liabilities of eFunds or Deluxe
that (i) are, except as otherwise set forth on Schedule 2.2(c) or as otherwise
provided herein, reflected in the eFunds Financial Statements and remain
outstanding at the Contribution Date, or (ii) arise in connection with the
eFunds Businesses after the date of the eFunds Financial Statements and would be
reflected in financial statements of eFunds as of the Contribution Date if such
financial statements were prepared using the same accounting principles under
which the eFunds Financial Statements were prepared, or (iii) are expressly
contemplated by this Agreement, the IPO and Distribution Agreement or any
Ancillary Agreement (as defined in Section 1.01 of the IPO and Distribution
Agreement) and the Exhibits and Schedules referenced or attached hereto and
thereto as Liabilities to be transferred to and assumed by eFunds, or (iv)
except as otherwise provided in an express agreement of the parties, are related
to or arise out of or in connection with the eFunds Assets, or (v) except as
otherwise provided in an express agreement of the parties, are related to or
arise out of or in connection with the eFunds Businesses.
"Governmental Authority" means any federal, state, local, foreign or
international court, government, department, commission, board, bureau, agency,
official or other regulatory, administrative or governmental authority.
"Intellectual Property" means all domestic and foreign patents and
patent applications, together with any continuations, continuations-in-part or
divisional applications thereof, and all patents issuing thereon (including
reissues, renewals and re-examinations of the foregoing);
4
design patents, invention disclosures; mask works; copyrights, and copyright
applications and registrations; Web addresses, trademarks, service marks, trade
names, and trade dress, in each case together with any applications and
registrations therefor and all appurtenant goodwill relating thereto; trade
secrets, commercial and technical information, know-how, proprietary or
confidential information, including engineering, production and other designs,
notebooks, processes, drawings, specifications, formulae, and technology;
computer and electronic data processing programs and software (object and source
code), data bases and documentation thereof; inventions (whether patented or
not); utility models; registered designs, certificates of invention and all
other intellectual property under the laws of any country throughout the world.
"IPO and Distribution Agreement" means the Initial Public Offering and
Distribution Agreement entered into between Deluxe and eFunds on the date
hereof.
"IPO Effective Date" means the date on which the IPO Registration
Statement is declared effective by the Securities and Exchange Commission.
"IPO Registration Statement" means the registration statement on Form
S-1 pursuant to the Securities Act of 1933, as amended, to be filed with the
Securities and Exchange Commission registering the shares of common stock of
eFunds to be issued in the initial public offering, together with all amendments
thereto.
"Liabilities" means any and all debts, liabilities, guarantees,
assurances, commitments and obligations, whether fixed, contingent or absolute,
asserted or unasserted, matured or unmatured, liquidated or unliquidated,
accrued or not accrued, known or unknown, due or to become due, whenever or
however arising (including, without limitation, whether arising out of any
Contract or tort based on negligence or strict liability) and whether or not the
same would be required by generally accepted principles and accounting policies
to be reflected in financial statements or disclosed in the notes thereto.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Separation" means the transfer and contribution from Deluxe to eFunds,
and eFunds's receipt and assumption of, directly or indirectly, substantially
all of the Assets and Liabilities currently associated with the eFunds Business.
"Subsidiary" means, with respect to any Person, any corporation, any
limited liability company, any partnership or other legal entity of which such
Person or its Subsidiaries owns, directly or indirectly, more than 50% of the
stock or other equity interest entitled to vote on the election of members of
the board of directors or similar governing body. Unless the context otherwise
requires, with reference to Deluxe and its Subsidiaries, the term "Subsidiary"
shall not include eFunds or any Subsidiary of Deluxe that will be transferred to
eFunds after giving effect to the Separation.
5
ARTICLE II
CONTRIBUTION AND ASSUMPTION
Section 2.1 Contribution of Assets.
(a) On the Contribution Date, Deluxe hereby transfers to eFunds all of
its right, title and interest in and to the eFunds Assets in the following
order:
(i) all of the issued and outstanding capital stock of iDLX
Corporation, a Delaware corporation;
(ii) all of the issued and outstanding capital stock of eFunds
Holdings Ltd., a United Kingdom corporation;
(iii) the one percent (1%) ownership interest in Connex Europe
SRL, a corporation organized under the laws of Italy, held by Deluxe;
(iv) all of the issued and outstanding capital stock of eFunds
Overseas, Inc., a Minnesota corporation;
(v) all of the issued and outstanding capital stock of eFunds
Corporation , a California corporation;
(vi) all of the issued and outstanding capital stock of Deluxe
Payment Protection Systems, Inc., a Delaware corporation;
(vii) all of the issued and outstanding capital stock of Chex
Systems, Inc., a Minnesota corporation;
(viii) all of the issued and outstanding capital stock of
Analytic Research Technologies, Inc., a Minnesota corporation; and
(ix) all other eFunds Assets, including without limitation,
the Assets listed on Schedule 2.1 hereto.
(b) On the Contribution Date, Deluxe shall contribute to eFunds cash
and/or cash equivalents in the aggregate amount of $-0-.
(c) Notwithstanding anything to the contrary contained herein, the
eFunds Assets shall not include any of the Assets set forth on Schedule 2.1(c)
hereto (the "Excluded Assets") .
(d) In the event that at any time or from time to time (whether prior
to, on or after the Contribution Date), any party hereto (or any member of such
party's respective Group), shall receive or otherwise possess any Asset that is
allocated to any other person pursuant to this Agreement, such party shall
promptly transfer, or cause to be transferred, such Asset to the
6
Person so entitled thereto. Prior to any such transfer, the Person receiving or
possessing such Asset shall hold such Asset in trust for any such other Person.
Section 2.2 Assumption of Liabilities.
(a) Effective as of the Contribution Date, eFunds hereby assumes and
agrees on a timely basis to pay, perform, satisfy and discharge, or will cause
the eFunds Subsidiaries to pay, perform, satisfy and discharge all the eFunds
Liabilities, in accordance with their respective terms, including, without
limitation, the liabilities set forth on Schedule 2.2(a) hereto.
(b) eFunds and Deluxe agree that to the extent that Deluxe entered into
a lease with a third party dated prior to the Contribution Date pursuant to
which Deluxe agreed to lease machinery and/or equipment for use by the eFunds
Businesses, upon identification of any such lease, eFunds will be deemed to have
entered into a sublease with Deluxe with terms identical or as similar as
possible to such original lease pursuant to which eFunds will sublease from
Deluxe that portion of the machinery and/or equipment used by the eFunds
Businesses covered under such original lease.
(c) Notwithstanding anything to the contrary contained herein, eFunds
shall not assume any of the Liabilities set forth on Schedule 2.2(c) hereto.
(d) Notwithstanding anything herein to the contrary, any nonrecurring
costs and expenses incurred by the parties hereto to effect the transactions
contemplated hereby which are not allocated pursuant to the terms of this
Agreement or the IPO and Distribution Agreement shall be the responsibility of
the party which incurs such costs and expenses.
Section 2.3 Methods of Transfer and Assumption.
(a) eFunds and Deluxe agree that transfers of Assets set forth in
Section 2.1 hereof shall be effected by delivery by Deluxe or one of its
Subsidiaries to eFunds or one of its Subsidiaries, as the case may be of (a)
with respect to those eFunds Assets which are evidenced by capital stock
certificates or similar instruments, certificates duly endorsed in blank or
accompanied by stock powers or other instruments of assignment executed in blank
or (b) with respect to all other eFunds Assets owned by Deluxe (or its
Subsidiaries), such good and sufficient instruments of contribution, conveyance,
assignment and transfer, in form and substance reasonably satisfactory to Deluxe
and eFunds, as shall be necessary to vest in eFunds or its Subsidiaries, as the
case may be, all of Deluxe's title and ownership interest in and to any such
eFunds Asset
(b) To the extent necessary, the assumption of the Assumed Liabilities
contemplated pursuant to Section 2.2 hereof shall be effected by delivery by
eFunds to Deluxe of such good and sufficient instruments of assumption, in form
and substance reasonably satisfactory to Deluxe and eFunds as shall be necessary
for the assumption by eFunds of the Assumed Liabilities.
7
(c) Each of the parties hereto also agrees to deliver to any other
party hereto such other documents, instruments and writings as may be reasonably
requested by such other party hereto in connection with the transactions
contemplated hereby.
(d) NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO THE
CONTRARY, THE TRANSFERS AND ASSUMPTIONS REFERRED TO IN THIS ARTICLE II AND THE
SEPARATION OF THE EFUNDS BUSINESS FROM DELUXE ARE BEING MADE WITHOUT ANY
REPRESENTATION OR WARRANTY OF ANY NATURE (I) AS TO THE VALUE OR FREEDOM FROM
ENCUMBRANCE OF ANY ASSETS, (II) AS TO ANY WARRANTY OF MERCHANTABILITY OR
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER MATTER CONCERNING
ANY ASSETS, OR (III) AS TO THE LEGAL SUFFICIENCY TO CONVEY TITLE TO ANY ASSETS.
The instruments of transfer or assumption referred to in this Section 2.3 shall
not include any separate representations and warranties. Deluxe and eFunds
hereby acknowledge and agree that all eFunds Assets are being transferred "AS
IS, WHERE IS." eFunds shall bear the economic and legal risks that any
conveyances of the eFunds Assets to eFunds shall prove to be insufficient or
that eFunds's or any of its Subsidiary's title to any of the eFunds Assets which
they currently own (or, after giving effect to the transfers contemplated by
this Agreement, will own) shall be other than good and marketable and free from
encumbrances, and Deluxe shall bear the economic and legal risk that any
conveyances of Excluded Assets to Deluxe shall be other than good and marketable
and free from encumbrances.
(e) Deluxe and eFunds hereby further acknowledge and agree that in the
event and to the extent that there is any conflict between the provisions of
this Agreement and the provisions of any of the instruments of transfer or
assumption referred to in this Section 2.3, the provisions of this Agreement
shall control except where a specific conveyancing instrument specifically
provides that such instrument shall control over this Section 2.3 and refers to
this specific Section 2.3 by number.
(f) The parties intend to complete the transfer of all eFunds Assets
and the assumption of all eFunds Liabilities effective on or prior to the
Contribution Date but, to the extent that any such transfers and assumptions are
not completed prior to the Contribution Date, the parties shall take all actions
reasonably necessary or appropriate to complete such transactions as promptly
thereafter as possible. In addition to those transfers and assumptions
accurately identified and designated by the parties to take place but which the
parties are not able to effect prior to the Contribution Date, there may exist
(i) Assets that the parties discover were, contrary to the agreements between
the parties, by mistake or omission, transferred to eFunds or retained by Deluxe
or (ii) liabilities that the parties discover were, contrary to the agreements
between the parties, by mistake or omission, assumed by eFunds or not assumed by
eFunds. The parties shall, between the Contribution Date and the date the
Distribution occurs, cooperate in good faith to effect the transfer or
re-transfer of such Assets, and/or the assumption or re-assumption of such
liabilities, to or by the appropriate party and shall not use the determination
of remedial actions contemplated herein to alter the original intent of the
parties hereto with respect to Assets to be transferred to or the liabilities to
be assumed by eFunds. Each party shall reimburse the other or make other
financial adjustments (e.g., without limitation, cash reserves)
8
or other adjustments to remedy any mistakes or omissions relating to any of the
Assets transferred hereby or liabilities assumed hereby.
Section 2.4 Nonassignable Contracts. Notwithstanding anything contained
herein to the contrary, this Agreement shall not constitute an agreement to
assign any Asset or assume any Liability if an assignment or assumption or
attempted assignment or assumption of the same without the consent of another
Person would constitute a breach thereof or in any way impair the rights of a
party thereunder (including a party hereunder) or give to any third party any
rights with respect thereto. If any such consent is not obtained or if any
attempted assignment or assumption would be ineffective or would so impair a
party's rights with respect to any such Asset or Liability so that the party
entitled to the benefits (including relief from Liability) associated with such
purported transfer (the "Intended Transferee") would not receive all of such
benefits, then, as appropriate, (w) the party purporting to make such transfer
(the "Intended Transferor") shall use commercially reasonable efforts to provide
or cause to be provided to the Intended Transferee, to the extent permitted by
law, the benefits of any such Asset or Liability (x) the Intended Transferee, to
the extent permitted by law, shall use commercially reasonable efforts to assume
such Liability so that the Intended Transferor is relieved therefrom, (y) the
Intended Transferor shall promptly pay or cause to be paid to the Intended
Transferee when received all moneys received by the Intended Transferor with
respect to any such Asset and (y) the Intended Transferee shall pay, perform and
discharge on behalf of the Intended Transferor all of the Intended Transferor's
Liabilities thereunder in a timely manner and accordance with the terms thereof
which it may do without breach. In addition, the Intended Transferor and
Intended Transferee, as the case may be, shall take such other actions as may be
reasonably be requested by the other party in order to place the (i) Intended
Transferee, insofar as reasonably possible, in the same position as if such
Asset had been transferred as contemplated hereby and so all the benefits and
burdens relating thereto, including possession, use, risk of loss, potential for
gain and dominion, control and command, shall inure to the Intended Transferee
and (ii) Intended Transferor, insofar as reasonably possible, in the same
position as if such Liability had been transferred as contemplated hereby so
that the Intended Transferor shall be relieved therefrom. If and when such
consents and approvals are obtained, the transfer of the applicable Asset shall
be effected in accordance with the terms of this Agreement.
Section 2.5 Novation of Assumed eFunds Liabilities.
(a) Each of Deluxe and eFunds, at the request of the other, shall use
their reasonable commercial efforts to obtain, or to cause to be obtained, any
consent, substitution, approval or amendment required to novate (including with
respect to any federal government contract) or assign all rights and obligations
under agreements, leases, licenses and other obligations or Liabilities of any
nature whatsoever that constitute eFunds Liabilities or to obtain in writing the
unconditional release of all parties to such arrangements other than any member
of the eFunds Group, so that, in any such case, eFunds and its Subsidiaries will
be solely responsible for such Liabilities; provided, however, that neither
Deluxe, eFunds nor their Subsidiaries shall be obligated to pay any
consideration therefor to any third party from whom such consents, approvals,
substitutions and amendments are requested.
9
(b) If Deluxe or eFunds is unable to obtain, or to cause to be
obtained, any such required consent, approval, release, substitution or
amendment, the applicable member of the Deluxe Group shall continue to be bound
by such agreements, leases, licenses and other obligations and, unless not
permitted by law or the terms thereof, eFunds shall, as agent or subcontractor
for Deluxe or such other Person, as the case may be, pay, perform and discharge
fully, or cause to be paid, transferred or discharged all the obligations or
other Liabilities of Deluxe or such other Person, as the case may be, thereunder
from and after the date hereof. Deluxe shall, without further consideration, pay
and remit, or cause to be paid or remitted, to eFunds or its appropriate
Subsidiary promptly all money, rights and other consideration received by it or
any member of its respective Group in respect of such performance (unless any
such consideration is an Excluded Asset). If and when any such consent,
approval, release, substitution or amendment shall be obtained or such
agreement, lease, license or other rights or obligations shall otherwise become
assignable or able to be novated, Deluxe shall thereafter assign, or cause to be
assigned, all its rights, obligations and other Liabilities thereunder or any
rights or obligations of any member of its respective Group to eFunds without
payment of further consideration and eFunds shall, without the payment of any
further consideration, assume such rights and obligations.
(c) In the event that Deluxe and eFunds are not able to obtain a
novation or other unconditional release of Deluxe's obligations with respect to
the eFunds Liabilities prior to the IPO Effective Date, Deluxe and eFunds shall
enter into an Indemnification Agreement in substantially the form attached
hereto as Exhibit A on or prior to the IPO Effective Date.
Section 2.6 Use of "Deluxe" Name. eFunds covenants and agrees that it
will use all commercially reasonable efforts to take any and all actions
necessary or appropriate to remove the word "Deluxe" or any variation thereof
from the name of any Subsidiary of eFunds as soon as practicable. In
furtherance, and not in limitation of the foregoing, eFunds shall use
commercially reasonable efforts to obtain any approval or consent from all
Governmental Authorities necessary or appropriate to remove the name "Deluxe"
from each Subsidiary of eFunds. Notwithstanding the foregoing, no later than six
months after the date the Distribution occurs, no Subsidiary of eFunds shall use
the word "Deluxe" or any variation thereof in its name or business.
ARTICLE III
INDEMNIFICATION
Section 3.1. Indemnification by eFunds. eFunds shall jointly and
severally indemnify in full Deluxe and each of its Subsidiaries and their
respective officers, directors, employees, agents and representatives (the
"Deluxe Indemnitees") and hold them harmless against any and all losses,
liabilities, deficiencies, damages, expenses or costs (including reasonable
legal and other external advisors fees and expenses) (each an "Indemnifiable
Loss"), resulting from, relating to or arising, whether prior to or following
the Contribution Date, out of or in connection with (a) the eFunds Assets and
the eFunds Liabilities and/or (b) eFunds's conduct of its business and affairs
after the Contribution Date. Any indemnification payment made under this
10
Agreement shall be characterized for tax purposes as if such payment were made
immediately prior to the Contribution Date.
Section 3.2. Indemnification Procedures.
(a) If a claim or demand for an Indemnifiable Loss is made against a
Deluxe Indemnitee by any Person who is not a party to the this Agreement (a
"Third Party Claim") as to which such Deluxe Indemnitee is entitled to
indemnification pursuant Section 1 hereof, such Deluxe Indemnitee shall give
eFunds notice of such Third Party Claim, as promptly as practicable, but in any
event no later than 15 days of the receipt by the Deluxe Indemnitee of such
notice; provided, however, that the failure to provide such notice shall not
release eFunds from any of its obligations under this Agreement except to the
extent eFunds is materially prejudiced by such failure and shall not relieve
eFunds from any other obligation or liability that it may have to any Deluxe
Indemnitee otherwise than under this Agreement. If eFunds acknowledges in
writing its obligations to indemnify the Deluxe Indemnitee hereunder against any
Indemnifiable Losses that may result from such Third Party Claim, then eFunds
shall be entitled to assume and control the defense of such Third Party Claim at
its expense and through counsel of its choice, subject to the approval of the
Deluxe Indemnitee (which approval shall not be unreasonably withheld or
delayed), if it gives notice of its intention to do so to the Deluxe Indemnitee
within 15 days of the receipt of such notice from the Deluxe Indemnitee (or such
shorter period as may be required to avoid a default in responding to the
assertion of the Third Party Claim in any tribunal before which such claim has
been brought); provided, however, that if there exists or is reasonably likely
to exist a conflict of interest that would make it inappropriate in the
reasonable judgment of the Deluxe Indemnitee for the same counsel to represent
both the Deluxe Indemnitee and eFunds, then the Deluxe Indemnitee shall be
entitled to retain its own counsel, in each jurisdiction for which the Deluxe
Indemnitee determines counsel is required to participate in such defense, at the
expense of eFunds. In the event eFunds exercises the right to undertake any such
defense against any such Third Party Claim as provided above, the Deluxe
Indemnitee shall cooperate with eFunds in such defense and make available to
eFunds, at the eFunds's expense, all witnesses, pertinent records, materials and
information in the Deluxe Indemnitee's possession or under the Deluxe
Indemnitee`s control relating thereto as is reasonably required by eFunds,
subject to reimbursement of reasonable out-of-pocket expenses. Similarly, in the
event the Deluxe Indemnitee is, directly or indirectly, conducting the defense
against any such Third Party Claim, eFunds shall cooperate with the Deluxe
Indemnitee in such defense and make available to the Deluxe Indemnitee all such
witnesses, records, materials and information in eFunds's possession or under
eFunds's control relating thereto as is reasonably required by the Deluxe
Indemnitee, subject to reimbursement of reasonable out-of-pocket expenses. No
such Third Party Claim may be settled by eFunds without the prior written
consent of the Deluxe Indemnitee (which shall not be unreasonably withheld or
delayed) unless such settlement is solely for money and includes an
unconditional release of each Deluxe Indemnitee from any and all Indemnifiable
Losses arising out of such action, claim, suit or proceeding and would not
otherwise adversely affect the Deluxe Indemnitee. No such Third Party Claim may
be settled by the Deluxe Indemnitee without the prior written consent of eFunds
which shall not be unreasonably withheld or delayed.
11
(b) All Deluxe Indemnitees (other than Deluxe) shall, as a condition of
their rights to indemnification hereunder, be deemed to have granted Deluxe an
irrevocable power of attorney, coupled with an interest, with respect to all
matters for which any determination may be made, action may be taken or consent
may be given or withheld under this Section 2, including, without limitation,
any determination regarding selection of counsel and any consent regarding
settlement, and any such determination, action or consent made, taken, given or
withheld by such party shall be binding up such Deluxe Indemnitee as if made,
taken, given or withheld by such Deluxe Indemnitee personally.
(c) Notwithstanding the foregoing, eFunds shall not be entitled to
assume the defense of any Third Party Claim and shall be liable for the fees and
expenses of counsel incurred by the Deluxe Indemnitee in defending such Third
Party Claim if the Third Party Claim seeks an order, injunction or other
equitable relief or relief for other than money damages against the Deluxe
Indemnitee which the Deluxe Indemnitee reasonably determines, after conferring
with its counsel, cannot be separated from any related claim for money damages.
If such equitable relief or other relief portion of the Third Party Claim can be
so separated from that for money damages, eFunds shall be entitled to assume the
defense of the portion relating to money damages.
(d) In the event any Deluxe Indemnitee should have a claim against
eFunds that does not involve a Third Party Claim, the Deluxe Indemnitee shall
deliver a notice of such claim with reasonable promptness to eFunds. If eFunds
notifies the Deluxe Indemnitee that it does not dispute the claim described in
such notice or fails to notify the Deluxe Indemnitee within 20 business days
after delivery of such notice by the Deluxe Indemnitee whether eFunds disputes
the claim described in such notice, the Indemnifiable Loss in the amount
specified in the Deluxe Indemnitee's notice will be conclusively deemed a
liability of eFunds and eFunds shall pay the amount of such Indemnifiable Loss
to the Deluxe Indemnitee on demand. If eFunds has timely disputed the liability
with respect to such claim, the Chief Financial Officer of eFunds and the Chief
Financial Officer of Deluxe will proceed in good faith to negotiate a resolution
of such dispute, and if not resolved through the negotiations of such
individuals within 20 days after the delivery of the Deluxe Indemnitee's notice
of such claim, such dispute shall be resolved fully and finally in Minneapolis,
Minnesota, by an arbitrator selected pursuant to and an arbitration governed by
Commercial Arbitration Rules of the American Arbitration Association, as
modified herein. The parties will jointly appoint a mutually acceptable
independent arbitrator, seeking assistance in such regard from the American
Arbitration Association. The arbitrator shall resolve the dispute within 30 days
after selection and judgment upon the award rendered by such arbitrator may be
entered in any court of competent jurisdiction. Each of Deluxe, on the one hand,
and eFunds, on the other, shall bear its own fees and expenses in connection
with such arbitration and shall bear 50% of the fees and expenses of the
arbitrator.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Entire Agreement. This Agreement, the IPO and Distribution
Agreement, and the Exhibits and Schedules referenced or attached hereto and
thereto, constitutes the entire agreement between the parties with respect to
the subject matter hereof and shall supersede all
12
prior written and oral and all contemporaneous oral agreements and
understandings with respect to the subject matter hereof.
Section 4.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota without regard
to its conflicts of laws principles.
Section 4.3 Notices. All notices, consents, requests, approvals, and
other communications provided for or required herein, and all legal process in
regard thereto, must be in writing and shall be deemed validly given, made or
served, (a) when delivered personally or sent by telecopy to the facsimile
number indicated below with a required confirmation copy sent in accordance with
subsection (c) below; or (b) on the next business day after delivery to a
nationally recognized express delivery service with instructions and payment for
overnight delivery; or (c) on the fifth (5th) day after deposited in any
depository regularly maintained by the United States postal service, postage
prepaid, certified or registered mail, return receipt requested, addressed to
the following addresses or to such other address as the party to be notified
shall have specified to the other party in accordance with this section:
If to Deluxe:
Deluxe Corporation
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Chief Financial Officer
Facsimile:
Copy to: General Counsel
Facsimile:
If to eFunds:
eFunds Corporation
000 Xxxx Xxxxxx Xxxxxxx
P.O. Box 12536
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Chief Financial Officer
Facsimile:
Copy to: General Counsel
Facsimile:
Section 4.4 Parties in Interest. This Agreement, including the
Schedules and Exhibits hereto, and the other documents referred to herein, shall
be binding upon and inure solely to the benefit of each party hereto and their
legal representatives and successors, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights or remedies of
any nature whatsoever under or by reason of this Agreement.
13
Section 4.5 Counterparts. This Agreement, including the Schedules and
Exhibits hereto, and the other documents referred to herein, may be executed in
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
Section 4.6 Assignment. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective legal
representatives and successors. This Agreement may not be assigned by any party
hereto.
Section 4.7 Severability. If any term or other provision of this
Agreement or the Schedules or Exhibits attached hereto is determined by a
nonappealable decision by a court, administrative agency or arbitrator to be
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the fullest extent
possible.
Section 4.8 No Waiver; Remedies Cumulative. No failure or delay on the
part of any party hereto in the exercise of any right hereunder shall impair
such right or be construed to be a waiver of, or acquiescence in, any breach of
any representation, warranty or agreement herein, nor shall any single or
partial exercise of any such right preclude other or further exercise thereof or
of any other right. All rights and remedies existing under this Agreement or the
Schedules or Exhibits attached hereto are cumulative to, and not exclusive of,
any rights or remedies otherwise available.
Section 4.9 Amendment. No change or amendment will be made to this
Agreement except by an instrument in writing signed on behalf of each of the
parties to such agreement.
Section 4.10 Authority. Each of the parties hereto represents to the
other that (a) it has the corporate or other requisite power and authority to
execute, deliver and perform this Agreement, (b) the execution, delivery and
performance of this Agreement by it have been duly authorized by all necessary
corporate or other action, (c) it has duly and validly executed and delivered
this Agreement, and (d) this Agreement is a legal, valid and binding obligation,
enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors, rights generally and general equity principles.
Section 4.11 Interpretation. The headings contained in this Agreement,
in any Exhibit or Schedule hereto and in the table of contents to this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Any capitalized term used in any Schedule or
Exhibit but not otherwise defined therein, shall have the meaning assigned to
such term in this Agreement. When a reference is made in this Agreement to an
14
Article or a Section, Exhibit or Schedule, such reference shall be to an Article
or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated.
[SIGNATURES ON FOLLOWING PAGE]
15
IN WITNESS WHEREOF, each of the parties has caused the Assignment and
Assumption Agreement to be executed on its behalf by its officers thereunto duly
authorized on the day and year first above written.
DELUXE CORPORATION
By: /s/ Xxxx XxXxxxx
-------------------------
Name: Xxxx XxXxxxx
Title: Senior Vice President
EFUNDS CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx III
-------------------------
Name: Xxxx X. Xxxxxxxxx III
Title:Chief Executive Officer
16
