EXHIBIT 10.5
EMPLOYEE MATTERS AGREEMENT
BETWEEN
DELUXE CORPORATION
AND
eFUNDS CORPORATION
DATED AS OF
___________, 2000
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS...................................................1
1.1. Affiliate.....................................................1
1.2. Agreement.....................................................1
1.3. Ancillary Agreement...........................................2
1.4. ASO Contracts.................................................2
1.5. COBRA.........................................................2
1.6. Code..........................................................2
1.7. Conversion Plan...............................................2
1.8. Deluxe........................................................2
1.9. Deluxe Deferred Compensation Plan.............................2
1.10. Deluxe 401(k) Plan............................................2
1.11. Deluxe Fringe Benefits........................................2
1.12. Deluxe Group..................................................2
1.13. Deluxe Health Plans...........................................2
1.14. Deluxe Health and Welfare Plans...............................2
1.15. Deluxe MPP....................................................3
1.16. Deluxe Option.................................................3
1.17. Deluxe Option Plans...........................................3
1.18. Deluxe PSP....................................................3
1.19. Deluxe Supplemental Benefit Plan..............................3
1.20. Deluxe VEBA...................................................3
1.21. Deluxe WCP....................................................3
1.22. Distribution..................................................3
1.23. Distribution Agreement........................................3
1.24. Distribution Date.............................................3
1.25. DOL...........................................................3
1.26. eFunds........................................................3
1.27. eFunds Employee...............................................4
1.28. eFunds 401(k) Plan............................................4
1.29. eFunds Group..................................................4
1.30. eFunds Health Plans...........................................4
1.31. eFunds Health and Welfare Plans...............................4
1.32. eFunds Option.................................................4
1.33. eFunds Stock..................................................5
1.34. eFunds Terminated Employee....................................5
1.35. ERISA.........................................................5
1.36. FMLA..........................................................5
1.37. HCFA..........................................................5
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1.38. HMO...........................................................5
1.39. HMO Agreements................................................5
1.40. iDLX..........................................................5
1.41. iDLX Employee.................................................5
1.42. iDLX Terminated Employee......................................6
1.43. Insurance Policies............................................6
1.44. IRS...........................................................6
1.45. Material Feature..............................................6
1.46. Outsource.....................................................6
1.47. Participating Employer........................................6
1.48. Person........................................................6
1.49. Plan..........................................................6
1.50. QDRO..........................................................6
1.51. QMCSO.........................................................7
ARTICLE II. GENERAL PRINCIPLES............................................8
2.1. Termination of Participating Employer Status..................8
2.2. Terms of Participation by eFunds Employees in eFunds Plans....8
2.3. eFunds' Obligation to Establish and Maintain Plans............9
2.4. Benefits Committee and Dispute Resolution.....................9
2.5. Deluxe Option Plans and Conversion Plan.......................9
ARTICLE III. QUALIFIED RETIREMENT PLANS...................................10
3.1. Establishment of 401(k) Plan and Trust Required..............10
3.2. Transfer of Deluxe 401(k) Plan Assets and Liabilities........10
3.3. Transfer of Deluxe PSP Assets and Liabilities................10
3.4. Transfer of Deluxe MPP Assets and Liabilities................10
3.5. Deluxe MPP 401(h) Benefits...................................11
3.6. No Distribution to eFunds and iDLX Employees.................11
3.7. Final Year Contribution......................................11
3.8. Qualified 401(k) Plan Loans..................................12
3.9. Qualified Domestic Relations Orders..........................12
3.10. Minimum Required Distributions...............................12
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ARTICLE IV. NON-QUALIFIED RETIREMENT PLANS...............................13
4.1. Establishment of Plans Discretionary.........................13
4.2. No Transfer of Liabilities...................................13
4.3. Final Year Credits...........................................13
ARTICLE V. HEALTH AND WELFARE PLANS.....................................14
5.1. Establishment of Health and Welfare Plans....................14
5.2. No Transfer of VEBA Assets...................................14
5.3. Assumption of Health and Welfare Plan Liabilities............14
5.4. Claims for Health and Welfare Plans..........................15
5.5. Post-Distribution Transitional Arrangements..................15
5.6. Vendor Arrangements..........................................16
5.7. COBRA........................................................17
5.8. Dependent and Health Care Reimbursement Accounts.............17
5.9. Long-Term Disability.........................................17
5.10. Deluxe Workers' Compensation Program.........................17
ARTICLE VI. EQUITY AND OTHER COMPENSATION................................19
6.1. Deluxe Stock Purchase Plan...................................19
6.2. Deluxe Option Plans..........................................19
6.3. Administrative Matters.......................................19
6.4. Fees and Expenses............................................19
ARTICLE VII. FRINGE AND OTHER BENEFITS....................................20
7.1. Auto/HomeownerInsurance Program..............................20
7.2. Adoption Assistance..........................................20
7.3. Employee Student Loan Program................................20
7.4. Other Deluxe Benefit Programs................................20
7.5. eFunds Benefit Programs......................................20
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ARTICLE VIII. ADMINISTRATIVE MATTERS.......................................21
8.1. Reporting and Disclosure Communications to Participants......21
8.2. Audits Regarding Vendor Contracts............................21
8.3. Employee Identification Numbers..............................21
8.4. Beneficiary Designations.....................................21
8.5. Requests for IRS and DOL Opinions............................22
8.6. Fiduciary Matters............................................22
8.7. Consent of Third Parties.....................................22
8.8. World Wide Web...............................................22
8.9. Tax Cooperation..............................................22
ARTICLE IX. EMPLOYMENT-RELATED MATTERS...................................23
9.1. Terms of eFunds Employment...................................23
9.2. Human Resources Data Support Systems.........................23
9.3. Confidentiality and Proprietary Information..................23
9.4. Personnel and Pay Records....................................23
9.5. Non-Termination of Employment; No Third-Party
Beneficiaries................................................23
9.6. Employment Litigation........................................24
ARTICLE X. GENERAL PROVISIONS...........................................26
10.1. Effect if Distribution Does Not Occur........................26
10.2. Relationship of Parties......................................26
10.3. Affiliates...................................................26
10.4. Incorporation of Distribution and Ancillary Agreement
Provisions...................................................26
10.5. Governing Law................................................26
10.6. Severability.................................................26
10.7. Amendment....................................................27
10.8. Termination..................................................27
10.9. Conflict.....................................................27
10.10. Counterparts.................................................27
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SCHEDULE 1-- HEALTH AND WELFARE PLANS.......................................S-1
SCHEDULE 2--THIRD PARTY ASO CONTRACTS.......................................S-2
SCHEDULE 3--INSURANCE POLICIES..............................................S-3
SCHEDULE 4--THIRD PARTY HMO CONTRACTS.......................................S-4
SCHEDULE 5(a) & (b)-- EMPLOYMENT LITIGATION TRANSFERRED CLAIMS..............S-5
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EMPLOYEE MATTERS AGREEMENT
This EMPLOYEE MATTERS AGREEMENT (this "Agreement") is entered into on May
1, 2000, between Deluxe Corporation ("Deluxe"), a Minnesota corporation, and
eFunds Corporation ("eFunds"), a Delaware corporation. Capitalized terms used
herein and not otherwise defined, shall have the respective meanings assigned to
them in Article I hereof.
WHEREAS, the Board of Directors of Deluxe has determined that it is in the
best interests of Deluxe and its shareholders to separate Deluxe's existing
businesses into two (2) independent businesses, Deluxe and eFunds;
WHEREAS, in furtherance of the foregoing, Deluxe and eFunds have agreed to
enter into this Agreement to allocate between them assets, liabilities and
responsibilities with respect to certain employee compensation, benefit plans
and programs, and certain employment matters with respect to United States
employees; and
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Wherever used in this Agreement, the following terms shall have the meanings
indicated below, unless a different meaning is plainly required by the context.
The singular shall include the plural, unless the context indicates otherwise.
Headings of sections are used for convenience of reference only, and in case of
conflict, the text of this Agreement, rather than such headings, shall control:
1.1. Affiliate. "Affiliate" means, with respect to Deluxe, any business entity
which is under "common control" with Deluxe or which is a member of an
"affiliated service group" that includes Deluxe, as those terms are defined in
section 414(b), (c), and (m) of the Code, and with respect to eFunds, any
business entity which is under "common control" with eFunds or which is a member
of an "affiliated service group" that includes eFunds, as those terms are
defined in section 414(b), (c), and (m) of the Code. For purposes of this
Agreement, eFunds and its Affiliates shall not be considered Affiliates of
Deluxe and its Affiliates and Deluxe and its Affiliates (excluding eFunds and
its Affiliates) shall not be considered Affiliates of eFunds.
1.2. Agreement. "Agreement" means this Employee Matters Agreement, including all
the Addendums, Schedules and Exhibits hereto, and all amendments made hereto
from time to time.
1.3. Ancillary Agreement. "Ancillary Agreement" shall have the meaning in the
Distribution Agreement.
1.4. ASO Contracts. "ASO Contracts" is defined in Section 5.6(a) and Schedule 2.
1.5. COBRA. "COBRA" means the continuation coverage requirements for "group
health plans" under Title X of the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended from time to time, and as codified in Code Section 4980B
and ERISA Sections 601 through 608.
1.6. Code. "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
1.7. Conversion Plan. "Conversion Plan" means the eFunds Corporation Stock
Incentive Plan for Deluxe Conversion Awards.
1.8. Deluxe. "Deluxe" means Deluxe Corporation, a Minnesota corporation. In all
such instances in which Deluxe is referred to in this Agreement, it shall also
be deemed to include a reference to each member of the Deluxe Group, unless it
specifically provides otherwise; Deluxe shall be solely responsible to eFunds
for ensuring that each member of the Deluxe Group complies with the applicable
terms of this Agreement.
1.9. Deluxe Deferred Compensation Plan. "Deluxe Deferred Compensation Plan"
means the non-qualified deferred compensation plan maintained by Deluxe under a
document entitled "Deluxe Corporation Deferred Compensation Plan" effective
January 1, 1996, as amended.
1.10 Deluxe 401(k) Plan. "Deluxe 401(k) Plan" means the tax-qualified earnings
reduction profit sharing plan maintained by Deluxe under a document entitled
"Deluxe Corporation 401(k) Plan (1997 Statement)," as amended.
1.11. Deluxe Fringe Benefits. "Fringe Benefits" means all fringe benefits,
plans, programs and arrangements sponsored and maintained by Deluxe (as set
forth in Article VII).
1.12. Deluxe Group. "Deluxe Group" means Deluxe and each Affiliate of Deluxe (or
any predecessor organization thereof), but not including eFunds or iDLX.
1.13. Deluxe Health Plans. "Deluxe Health Plans" means all medical,
pharmaceutical, vision and dental plans, programs or arrangements listed on
Schedule 1 maintained by Deluxe for the benefit of the Deluxe Group.
1.14. Deluxe Health and Welfare Plans. "Deluxe Health and Welfare Plans" means
the health and welfare plans listed on Schedule 1 established and maintained by
Deluxe for the benefit of employees and retirees of the Deluxe Group.
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1.15. Deluxe MPP. "Deluxe MPP" means the tax-qualified money purchase pension
plan maintained by Deluxe under a document entitled "Deluxe Defined Contribution
Pension Plan (1997 Restatement)," as amended.
1.16. Deluxe Option "Deluxe Option" means an option to purchase shares of Deluxe
common stock which was granted under a Deluxe Option Plan and is outstanding
immediately prior to the Distribution.
1.17. Deluxe Option Plans "Deluxe Option Plans" means the Deluxe Corporation
1984 Stock Option Plan, the Deluxe Corporation Stock Incentive Plan (as amended)
and the Deluxe Corporation 1998 DeluxeSHARES Plan.
1.18. Deluxe PSP. "Deluxe PSP" means the tax-qualified profit sharing plan
maintained by Deluxe under a document entitled "Deluxe Corporation Profit
Sharing Plan (1997 Restatement),"as amended.
1.19. Deluxe Supplemental Benefit Plan. "Supplemental Benefit Plan" means the
non-qualified deferred compensation plan maintained by Deluxe under a document
entitled "Deluxe Corporation Supplemental Benefit Plan" effective January 1,
1996, as amended.
1.20. Deluxe VEBA. "Deluxe VEBA" means the Deluxe Corporation Voluntary Employee
Benefits Organization Trust which is intended to be a voluntary employees'
beneficiary association under Code Section 501(c)(9).
1.21. Deluxe WCP. "Deluxe WCP" means the Deluxe Workers' Compensation Program,
comprised of the various arrangements established by a member of the Deluxe
Group to comply with the workers, compensation requirements of the states in
which the Deluxe Group conducts business.
1.22. Distribution. "Distribution" means Deluxe's distribution to the holders of
its common stock by means of an exchange offer and/or a pro rata distribution of
all the shares of eFunds Stock owned by Deluxe.
1.23. Distribution Agreement. "Distribution Agreement" means the Initial Public
Offering and Distribution Agreement dated as of March 31, 2000, by and between
Deluxe and eFunds.
1.24. Distribution Date. "Distribution Date" means the date that the
Distribution is effective.
1.25. DOL. "DOL" means the United States Department of Labor.
1.26. eFunds. "eFunds" means eFunds Corporation, a Delaware corporation. In all
such instances in which eFunds is referred to in this Agreement, it shall also
be deemed to include a reference to each member of the eFunds Group, unless it
specifically provides otherwise; eFunds
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shall be solely responsible to Deluxe for ensuring that each member of the
eFunds Group complies with the applicable terms of this Agreement.
1.27. eFunds Employee. "eFunds Employee" means any individual who, as of the
Distribution Date, is: (a) either actively employed by, or on a leave of absence
from, the eFunds Group; (b) an eFunds Terminated Employee; (c) an alternate
payee under a QDRO, alternate recipient under a QMCSO, beneficiary, covered
dependent, or qualified beneficiary (as such term is defined under COBRA), in
each case, of an employee or former employee, described in clause (a) or (b)
with respect to that employee's or former employee's benefit under the
applicable Plan(s) (unless specified otherwise in this Agreement, such an
alternate payee, alternate recipient, beneficiary, covered dependent, or
qualified beneficiary shall not otherwise be considered an eFunds Employee with
respect to any benefits he or she accrues or accrued under any applicable
Plan(s), unless he or she is an eFunds Employee by virtue of clause (a) or (b));
or (d) an employee or group of employees designated by Deluxe and eFunds, by
mutual agreement, as eFunds Employees. An employee may be an eFunds Employee
pursuant to this Section regardless of whether such employee is, as of the
Distribution Date, alive, actively employed, on a temporary leave of absence
from active employment, on layoff, terminated from employment, retired or on any
other type of employment or post-employment status relative to a Deluxe Plan,
and regardless of whether, as of the Distribution Date, such employee is then
receiving any benefits from a Deluxe Plan.
1.28. eFunds 401(k) Plan. "eFunds 401(k) Plan" means the tax-qualified earnings
reduction profit sharing plan to be established by eFunds pursuant to Section
3.1.
1.29. eFunds Group. "eFunds Group" means eFunds and each of the following United
States entities that are contemplated to be an Affiliate of eFunds after the
Distribution Date: Deluxe Analytic Research Technologies, Inc., a Minnesota
corporation; Chex Systems, Inc., a Minnesota corporation; eFunds Electronic
Benefits, a Delaware corporation; Deluxe Payment Protection Systems, Inc., a
Delaware corporation; eFunds Corporation (Tustin), a California corporation;
Deluxe Overseas, Inc., a Minnesota corporation. Notwithstanding anything to the
contrary in this Agreement, neither iDLX nor any foreign Affiliate of eFunds
shall be included as part of the eFunds Group for purposes of this Agreement.
1.30. eFunds Health Plans "eFunds Health Plans" means the health plans, programs
and arrangements to be established by eFunds pursuant to Article V that
correspond to the respective Deluxe Health Plans.
1.31. eFunds Health and Welfare Plans. "eFunds Health and Welfare Plans" means
the health and welfare plans established by eFunds pursuant to Article V that
correspond to the respective Deluxe Health and Welfare Plans.
1.32. eFunds Option "eFunds Option" means an option to purchase shares of eFunds
common stock, which option shall be granted pursuant to the terms of the
Conversion Plan.
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1.33. eFunds Stock. "eFunds Stock" means any class of eFunds capital stock,
including any class of eFunds voting stock and any class of eFunds nonvoting
stock.
1.34. eFunds Terminated Employee. "eFunds Terminated Employee" means any
individual who is a former employee of the eFunds Group. Notwithstanding the
foregoing, "eFunds Terminated Employee" shall not, unless otherwise expressly
provided to the contrary in this Agreement, include (a) an individual who is
employed by an Affiliate of the Deluxe Group (which is not an Affiliate of the
eFunds Group) at the Distribution Date, or (b) an individual who was formerly an
employee of eFunds but who is on long-term disability as of the Distribution
Date. Any employee described in clause (b) who returns to active employment with
eFunds after the Distribution Date shall be treated as an eFunds Employee.
1.35. ERISA. "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
1.36. FMLA. "FMLA" means the Family and Medical Leave Act of 1993, as amended
from time to time.
1.37. HCFA. "HCFA" means the United States Health Care Financing Administration.
1.38. HMO. "HMO" means a health maintenance organization that provides benefits
under the Deluxe Health Plans or the eFunds Health Plans.
1.39. HMO Agreements. "HMO Agreements" is defined in Section 5.6(c) and Schedule
4.
1.40. iDLX. "iDLX" means iDLX Corporation, a Delaware corporation (an Affiliate
of eFunds), and its domestic and foreign subsidiaries.
1.41. iDLX Employee. "iDLX Employee" means any individual who, as of the
Distribution Date, is: (a) either actively employed by, or on a leave of absence
from, iDLX; (b) an iDLX Terminated Employee; (c) an alternate payee under a
QDRO, alternate recipient under a QMCSO, beneficiary, covered dependent, or
qualified beneficiary (as such term is defined under COBRA), in each case, of an
employee or former employee, described in clause (a) or (b) with respect to that
employee's or former employee's benefit under the applicable Plan(s) (unless
specified otherwise in this Agreement, such an alternate payee, alternate
recipient, beneficiary, covered dependent, or qualified beneficiary shall not
otherwise be considered an iDLX Employee with respect to any benefits he or she
accrues or accrued under any applicable Plan(s), unless he or she is an iDLX
Employee by virtue of clause (a) or (b)); or (d) an employee or group of
employees designated by Deluxe and eFunds, by mutual agreement, as iDLX
Employees. An employee may be an iDLX Employee pursuant to this Section
regardless of whether such employee is, as of the Distribution Date, alive,
actively employed, on a temporary leave of absence from active employment, on
layoff, terminated from employment, retired or on any other type of employment
or post-employment status
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relative to an Deluxe Plan, and regardless of whether, as of the Distribution
Date, such employee is then receiving any benefits from a Deluxe Plan.
1.42. iDLX Terminated Employee. "iDLX Terminated Employee" means any individual
who is a former employee of iDLX. Notwithstanding the foregoing, "iDLX
Terminated Employee" shall not, unless otherwise expressly provided to the
contrary in this Agreement, include an individual who is employed by an
Affiliate of the Deluxe Group (which is not an Affiliate of the eFunds Group) at
the Distribution Date.
1.43. Insurance Policies. "Insurance Policies" is defined in Section 5.6(b) and
Schedule 3.
1.44. IRS. "IRS" means the United States Internal Revenue Service.
1.45. Material Feature. "Material Feature" means any feature of a Plan that
could reasonably be expected to be of material importance to the sponsoring
employer or the participants (or their dependents or beneficiaries) (in the
aggregate) of that Plan, which could include, depending on the type and purpose
of the particular Plan, the class or classes of employees eligible to
participate in such Plan, the nature, type, form, source, and level of benefits
provided under such Plan and the amount or level of contributions, if any,
required to be made by participants (or their dependents or beneficiaries) to
such Plan.
1.46. Outsource. "Outsource" is defined in Sections 5.4(b) and 5.10(a)(iii) for
purposes of each such respective section.
1.47. Participating Employer. "Participating Employer" means: (a) Deluxe; (b)
any Person (other than an individual) that Deluxe has approved for participation
in, has accepted participation in, and which is participating in, a Plan
sponsored by Deluxe; or (c) any Person (other than an individual) which, by the
terms of such Plan, participates in such Plan or any employees of which, by the
terms of such Plan, participate in or are covered by such Plan.
1.48. Person. "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.
1.49. Plan. "Plan," means any plan, policy, program, payroll practice,
arrangement, contract, trust, insurance policy, or any agreement or funding
vehicle providing compensation or benefits to employees, former employees or
directors of Deluxe, iDLX or eFunds.
1.50. QDRO. "QDRO" means a domestic relations order which qualifies under Code
Section 414(p) and ERISA Section 206(d) and which creates or recognizes an
alternate payee's right to, or assigns to an alternate payee, all or a portion
of the benefits payable to a participant under any of the Deluxe Retirement
Plans.
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1.51. QMCSO. "QMCSO" means a medical child support order which qualifies under
ERISA Section 609(a) and which creates or recognizes the existence of an
alternate recipient's right to, or assigns to an alternate recipient the right
to, receive benefits for which a participant or beneficiary is eligible under
any of the Health Plans.
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ARTICLE II
GENERAL PRINCIPLES
2.1. Termination of Participating Employer Status. Except as otherwise may be
mutually agreed upon by Deluxe and eFunds, effective as of the Distribution
Date, eFunds and all eFunds Affiliates shall automatically cease to be
Participating Employers in any and all Deluxe Plans.
2.2. Terms of Participation in eFunds Plans.
(a) Non-Duplication of Benefits. As of the Distribution Date or such later
date that applies to the particular eFunds Plan established
thereafter, the eFunds Plans shall be, with respect to eFunds
Employees (and where applicable, iDLX Employees), in all respects the
successors in interest to, and shall not provide benefits that
duplicate benefits provided by, the corresponding Deluxe Plans. Deluxe
and eFunds shall agree on methods and procedures, including amending
the respective Plan documents, to prevent employees from receiving
duplicate benefits from the Deluxe Plans and the eFunds Plans.
(b) Service Credit. Except as specified otherwise in this Agreement, with
respect to eFunds Employees (and where applicable iDLX Employees),
each eFunds Plan shall provide that all service, all compensation and
all other benefit-affecting determinations that, as of the
Distribution Date, were recognized under the corresponding Deluxe Plan
shall, as of the Distribution Date, receive full recognition and
credit and be taken into account under such eFunds Plan to the same
extent as if such items occurred under such eFunds Plan, except to the
extent that duplication of benefits would result. Notwithstanding the
foregoing, Deluxe and eFunds shall recognize service with either
Deluxe or eFunds that was recognized as of the Distribution Date,
except to the extent provided in Section 2.2(a) above. The service
crediting provisions shall be subject to any respectively applicable
"service bridging," "break in service," "employment date," "adjusted
hire date" or "eligibility date" rules under the eFunds Plans and the
Deluxe Plans.
(c) Assumption of Liabilities. The provisions of this Agreement for the
transfer of assets relating to Deluxe Plans to eFunds and/or the
appropriate eFunds Plans are based upon the understanding of the
parties that eFunds and/or the appropriate eFunds Plan will assume all
liabilities of the corresponding Deluxe Plan to or relating to eFunds
Employees (and where applicable, iDLX Employees), as provided for
herein. If any such liabilities are not effectively assumed by eFunds
and/or the appropriate eFunds Plan, then the amount of transferred
assets shall be recomputed accordingly, taking into account the
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retention of such liabilities by such Deluxe Plan, and assets shall be
transferred from eFunds and/or the appropriate eFunds Plan to Deluxe
and/or the appropriate Deluxe Plan so as to place eFunds and/or the
appropriate eFunds Plan in the position it would have been in, had the
initial asset transfer been made in accordance with such recomputed
amount of assets.
2.3. eFunds' Obligation to Establish and Maintain Plans. Except as otherwise
provided in this Agreement, eFunds shall not be required to establish or
maintain any employee benefit plan or program of any kind. Except as otherwise
provided in this Agreement, eFunds may, at any time after the Distribution Date,
amend, merge, modify, terminate, eliminate, reduce, or otherwise alter in any
respect any eFunds Plan, any benefit under any eFunds Plan or any trust,
insurance policy or funding vehicle related to any eFunds Plan (to the extent
permitted by law.
2.4. Benefits Committee and Dispute Resolution. From the date of this Agreement
through the Distribution Date, the management of the Plans shall be conducted
under the supervision of the Benefits Committee. The Benefits Committee shall be
comprised of an equal number of representatives from Deluxe and eFunds as
appointed by their respective Chief Executive Officer, and shall provide
strategic oversight and direction of the cohesive administration of the Plans.
Issues that cannot be resolved by the Benefits Committee shall be decided, at
the request of either party, by the eFunds Vice President, Human Resources (or
his or her authorized delegate) and the Deluxe Vice President, Human Resources
(or his or her authorized delegate). After exhaustion of this process, any
outstanding issues shall be resolved in accordance with Section 7.01(g) of the
Distribution Agreement.
2.5 Deluxe Option Plans and Conversion Plan. Notwithstanding any provision in
this Agreement to the contrary, the Deluxe Option Plans and the Conversion Plan
shall be administered as provided in the respective plans, including, without
limitation, the termination thereof and any amendment, modification,
interpretation, delegation of authority, exercise of discretion or adoption,
modification or discontinuation of any procedure or practice relating thereto
and permitted or authorized therein.
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ARTICLE III
QUALIFIED RETIREMENT PLANS
3.1. Establishment of 401(k) Plan and Trust Required. Effective as of the
Distribution Date or such other date(s) as Deluxe and eFunds may mutually agree,
eFunds shall adopt the eFunds 401(k) Plan and shall establish, or cause to be
established, a separate trust, which is intended to be qualified under Code
Section 401(a), to be exempt from taxation under Code Section 501(a)(1), and to
hold assets of the eFunds 401(k) Plan. eFunds shall determine the Material
Features of the eFunds 401(k) Plan; provided, however, that any optional form of
distribution or other "section 411(d)(6) protected benefit" (as defined by
Treasury Regulations ss. 1.411(d)-4 and any subsequent guidance from the
Internal Revenue Service) available as to all or a portion of the transferred
assets and liabilities shall continue to be available with respect to the
portion of transferred assets and liabilities to which such protected benefit
applies.
3.2. Transfer of Deluxe 401(k) Plan Assets and Liabilities. Effective as of the
Distribution Date: (i) the eFunds 401(k) Plan shall assume and be solely
responsible for all liabilities for or relating to eFunds and iDLX Employees
(excluding eFunds Terminated Employees and iDLX Terminated Employees) under the
Deluxe 401(k) Plan; and (ii) Deluxe shall cause the accounts of the eFunds
Employees and iDLX Employees (excluding eFunds Terminated Employees and iDLX
Terminated Employees) under the Deluxe 401(k) Plan and assets attributable
thereto that are held by its related trust as of the Distribution Date to be
transferred to the eFunds 401(k) Plan and its related trust, and eFunds shall
cause such transferred accounts and assets to be accepted by such plan and its
related trust.
3.3. Transfer of Deluxe PSP Assets and Liabilities. Effective as of the
Distribution Date: (i) the eFunds 401(k) Plan shall assume and be solely
responsible for all liabilities for or relating to eFunds Employees (excluding
eFunds Terminated Employees) under the Deluxe PSP; and (ii) Deluxe shall cause
the accounts of the eFunds Employees (excluding eFunds Terminated Employees)
under the Deluxe PSP and assets attributable thereto that are held by its
related trust as of the Distribution Date to be transferred to the eFunds 401(k)
Plan and its related trust, and eFunds shall cause such transferred accounts and
assets to be accepted by such plan and its related trust.
3.4. Transfer of Deluxe MPP Assets and Liabilities. Effective as of the
Distribution Date: (i) the eFunds 401(k) Plan shall assume and be solely
responsible for all pension liabilities (excluding any benefit liabilities
funded through the Code section 401(h) account) for or relating to eFunds and
iDLX Employees (excluding eFunds Terminated Employees and iDLX Terminated
Employees) under the Deluxe MPP; and (ii) Deluxe shall cause the pension
accounts (but no portion of the Code section 401(h) account) of the eFunds and
iDLX Employees (excluding eFunds Terminated Employees and iDLX Terminated
Employees) under the Deluxe MPP and assets attributable thereto that are held by
its related trust as of the Distribution Date to be transferred to the eFunds
401(k) and its related trust, and eFunds shall cause such transferred accounts
and assets to be accepted by such plan and its related trust.
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3.5. Deluxe MPP 401(h) Benefits. Effective as of the Distribution Date, eFunds
and iDLX Employees who have satisfied the age, service and/or other requirements
necessary to become a Qualified Retiree (as defined under the Deluxe MPP) shall
be eligible to receive retiree medical benefits under the Deluxe MPP after the
Distribution Date. eFunds and iDLX Employees who have not met the age, service
and/or other requirements as of the Distribution Date shall not be eligible to
receive retiree medical benefits under the Deluxe MPP after the Distribution
Date.
3.6. No Distribution to eFunds and iDLX Employees. The Deluxe PSP, the Deluxe
MPP, the Deluxe 401(k) Plan and the eFunds 401(k) Plan shall provide that no
distribution of account balances shall be made to any eFunds Employee or iDLX
Employee on account of eFunds or iDLX ceasing to be a Participating Employer
under the Deluxe Plans.
3.7. Final Year Contribution.
(a) Profit Sharing Contributions. Profit sharing contributions that would
have been made by or on behalf of eFunds to the Deluxe PSP (absent the
event of Distribution) for the plan year ending December 31, 2000 as
determined by Deluxe on any reasonable basis shall be made by eFunds
to the eFunds 401(k) Plan based on compensation earned by eFunds
Employees from January 1, 2000 through, but not after, the
Distribution Date. At the time of such contribution, Deluxe shall
reimburse eFunds in full for all amounts charged eFunds for the cost
of such contributions during the aforesaid period.
(b) Money Purchase Contributions. Money purchase contributions that would
have been made by or on behalf of eFunds and iDLX to the Deluxe MPP
(absent the event of Distribution) for the plan year ending December
31, 2000 shall be made by eFunds and iDLX to the eFunds 401(k) Plan
based on compensation earned by eFunds and iDLX Employees respectively
from January 1, 2000 through, but not after, the Distribution Date. At
the time of such contribution, Deluxe shall reimburse eFunds and iDLX
in full for all amounts charged eFunds and iDLX for the cost of such
contributions during the aforesaid period.
(c) Refunds of Excess Contributions. If Deluxe receives a distribution of
any excess contribution under the Deluxe 401(k) Plan that is
attributable to an employer matching contribution charged eFunds (and
not reimbursed by Deluxe to eFunds), Deluxe shall promptly pay the
amount thereof to eFunds. If eFunds receives a distribution of any
excess contribution under the Deluxe 401(k) Plan that is attributable
to an employer matching contribution paid by Deluxe (and not charged
to eFunds), eFunds shall promptly pay the amount thereof to Deluxe. In
the event that Deluxe, eFunds or iDLX receives a distribution of any
excess employee contribution under any of their 401(k)
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plans, each shall promptly pay over such distribution to the employee
making the excess contribution.
3.8. Qualified 401(k) Plan Loans. Effective as of the Distribution Date, all
outstanding loans of eFunds and iDLX Employees (excluding Terminated Employees)
from the Deluxe 401(k) Plan shall be transferred to the eFunds 401(k) Plan
pursuant to Section 3.2. As of the Distribution Date, eFunds shall be solely
responsible for implementing its own payroll system and making payroll
deductions for eFunds Employees with loans outstanding from the eFunds 401(k)
Plan. As of the Distribution Date, iDLX shall continue making and be solely
responsible for payroll deductions under its existing payroll system for iDLX
Employees with loans outstanding from the eFunds 401(k) Plan.
3.9. Qualified Domestic Relations Orders. Effective as of the Distribution Date,
all QDROs pertaining to accounts of eFunds and iDLX Employees (excluding
Terminated Employees) under the Deluxe 401(k) Plan, the Deluxe PSP or the Deluxe
MPP shall be the sole responsibility of eFunds.
3.10. Minimum Required Distributions. With respect to any eFunds or iDLX
Employee who, as of the Distribution Date, is employed past the "required
beginning date" (as defined in section 401(a)(9) of the Code) as applied to such
Employee, eFunds shall be solely responsible for ensuring that distributions
continue to be made from such Employee's account under the eFunds 401(k) Plan in
accordance with the relevant method of distribution selected under the Deluxe
401(k) Plan, the Deluxe PSP or the Deluxe MPP, as the case may be. With respect
to any eFunds or iDLX Employee who has attained age seventy and one-half
(70-1/2) and has elected to defer distribution until retirement pursuant to
Section 1.5 of the Deluxe 401(k) Plan, Section 1.4 of the Deluxe PSP or Section
1.4 of the Deluxe MPP, as the case may be, eFunds shall be solely responsible
for ensuring that distributions commence as of such Employee's required
beginning date.
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ARTICLE IV
NON-QUALIFIED RETIREMENT PLANS
4.1. Establishment of Plans Discretionary. After the Distribution Date, eFunds
may, but shall not be required to, establish any supplemental benefit, deferred
compensation or other non-qualified retirement plan for the benefit of eFunds
Employees. eFunds shall determine the Material Features of any such
non-qualified retirement plans.
4.2. No Transfer of Liabilities. All liabilities for or relating to eFunds
Employees under the Deluxe Supplemental Benefit Plan and the Deluxe Deferred
Compensation Plan shall remain with each respective Deluxe Plan following the
Distribution Date.
4.3. Final Year Credits. Any and all pay credits for eFunds Employees under the
Deluxe Supplemental Benefit Plan or the Deluxe Deferred Compensation Plan,
respectively, for the plan year beginning January 1, 2000 shall be made based on
compensation earned by eFunds Employees from January 1, 2000 through, but not
after, the Distribution Date.
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ARTICLE V
HEALTH AND WELFARE PLANS
5.1. Establishment of Health and Welfare Plans. Except as provided otherwise in
this Article V, effective as of the Distribution Date or such other date(s) as
Deluxe and eFunds may mutually agree, eFunds shall adopt the eFunds Health and
Welfare Plans. The foregoing eFunds Plans as in effect as of the Distribution
Date shall be substantially identical in all Material Features to the comparable
Deluxe Plans as in effect on the Distribution Date.
5.2. No Transfer of VEBA Assets. All assets under the Deluxe VEBA shall remain
with the Deluxe VEBA.
5.3. Assumption of Health and Welfare Plan Liabilities.
(a) General. Except as specified otherwise in this Agreement, as of the
Distribution Date, all liabilities for or relating to eFunds Employees
under the Deluxe Health and Welfare Plans shall cease to be
liabilities of the Deluxe Health and Welfare Plans and shall be
assumed by the corresponding eFunds Health and Welfare Plans.
(b) Pending Treatments. Notwithstanding Section 5.3(a) above, all
treatments which have been pre-certified for or are being provided to
an eFunds Employee as of the Distribution Date shall be provided
without interruption under the appropriate Deluxe Health and Welfare
Plan until such treatment is concluded or discontinued pursuant to
applicable Plan rules and limitations, but eFunds shall continue to be
responsible for all liabilities relating to, arising out of, or
resulting from such on-going treatments as of the Distribution Date
and shall reimburse Deluxe or the Deluxe Health and Welfare Plan for
the costs of such treatment to the extent that the cost of such
treatments have been paid by Deluxe or the Deluxe Health and Welfare
Plan.
(c) Pending Commitments. eFunds shall assume, effective as of the
Distribution Date, all liabilities relating to, arising out of or
resulting from special commitments made by Deluxe before the
Distribution Date to provide benefits to or with respect to eFunds
Employees for care or services not covered by any Deluxe Health and
Welfare Plans, but only if such special commitments were made with
prior written consent of the eFunds Vice President, Human Resources or
his or her authorized delegate, to the extent such commitments are
made after the Distribution Date. Before the Distribution Date, Deluxe
shall transfer to eFunds copies of all documentation, and a complete
written description, of the terms of all such special commitments to
eFunds Employees.
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5.4. Claims for Health and Welfare Plans.
(a) Administration of Deluxe Claims. Deluxe shall administer claims
incurred under the Deluxe Health and Welfare Plans by eFunds Employees
before the Distribution Date but only to the extent that eFunds has
not, before the Distribution Date, established and assumed
administrative responsibility for a comparable Plan. Any determination
made or settlements entered into by Deluxe with respect to such claims
shall be final and binding. Deluxe shall transfer to eFunds, effective
as of the Distribution Date, responsibility for administering all
claims incurred by eFunds Employees before the Distribution Date
(including any claims that were administered by Deluxe as of, on, or
after the Distribution Date). eFunds shall administer such claims in a
substantially similar manner, using substantially similar methods and
procedures, as Deluxe used in administering such claims. eFunds shall
have sole and absolute discretionary authority to make any necessary
determinations with respect to such claims, including entering into
settlements with respect to such claims.
(b) Outsourcing of Claims by Deluxe. Deluxe shall have the right to engage
a third party administrator, vendor, or insurance company to
administer ("Outsource") claims incurred under the Deluxe Health and
Welfare Plans, including claims incurred by eFunds Employees before
the Distribution Date. Deluxe may determine the manner and extent of
such Outsourcing, including the selection of one or more third party
administrators, vendors, or insurance companies and the ability to
transfer the liability for such claims to one or more independent
insurance companies. Deluxe has Outsourced administration of several
Deluxe Health and Welfare Plans, as set forth in Section 5.6 and the
Schedule thereto. To the extent not otherwise set forth in Section 5.6
and the Schedule thereto, Deluxe shall promptly notify eFunds of its
intent to further Outsource such claims, and the material terms and
conditions of the Outsourcing, before the effective date thereof.
(c) Outsourcing of Claims by eFunds. Deluxe shall use its commercially
reasonable best efforts for and on behalf of eFunds to procure
Outsourcing arrangements with its third party administrators, vendors,
or insurance companies with the Material Features of each of Deluxe's
current Outsourcing arrangements. eFunds agrees, as of the
Distribution Date or such other date as eFunds and Deluxe may mutually
agree upon, to Outsource claims under the eFunds Health and Welfare
Plans pursuant to arrangements procured by Deluxe.
5.5. Post-Distribution Transitional Arrangements.
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(a) Continuance of Elections, Co-Payments and Maximum Benefits.
(i) As of the Distribution Date or such other date as Deluxe and
eFunds may mutually agree, eFunds shall cause the eFunds Health
and Welfare Plans to recognize and maintain all coverage and
contribution elections made by eFunds Employees under the Deluxe
Health and Welfare Plans and apply such elections under the
eFunds Health and Welfare Plans for the remainder of the period
or periods for which such elections are by their terms
applicable. The transfer or other movement of employment between
Deluxe to eFunds at any time upon or before the Distribution Date
shall neither constitute nor be treated as a "status change" or
termination of employment under the Deluxe Health and Welfare
Plans or the eFunds Health and Welfare Plans.
(ii) On and after the Distribution Date, eFunds shall cause the eFunds
Health Plans to recognize and give credit for (A) all amounts
applied to deductibles, out-of-pocket maximums, co-payments and
other applicable benefit coverage limits with respect to which
such expenses have been incurred by eFunds Employees under the
Deluxe Health Plans for the remainder of the calendar year in
which the Distribution Date occurs, and (B) all benefits paid to
eFunds Employees under the Deluxe Health Plans for purposes of
determining when such persons have reached their lifetime maximum
benefits under, the eFunds Health Plans.
(b) HCFA Administration. As of the Distribution Date, eFunds shall assume
all liabilities relating to, arising out of or resulting from claims
verified by Deluxe or eFunds under the HCFA data match reports that
relate to eFunds Employees.
5.6. Vendor Arrangements. Deluxe shall use its commercially reasonable best
efforts for and on behalf of eFunds to procure, effective as of the Distribution
Date or such other date as Deluxe and eFunds mutually agree upon: (a) third
party ASO Contracts with the Material Features of the ASO Contracts entered into
by Deluxe, as set forth in Schedule 2 (the "ASO Contracts"); (b) Insurance
Policies, with the Material Features of the Insurance Policies entered into by
Deluxe, as set forth in Schedule 3 (the "Insurance Policies"); and (c) HMO
Agreements with the Material Features of the HMO Agreements entered into by
Deluxe, as set forth in Schedule 4 (the "HMO Agreements"). In each case, eFunds
shall, as of the Distribution Date or such other date as Deluxe and eFunds
mutually agree upon, establish, adopt and/or implement such contracts,
agreements or arrangements.
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5.7. COBRA. Deluxe shall be responsible through the Distribution Date, for
compliance with the health care continuation coverage requirements of COBRA and
the Deluxe Health and Welfare Plans with respect to eFunds Employees and
qualified beneficiaries (as such term is defined under COBRA). eFunds shall be
responsible for providing Deluxe with all necessary employee change notices and
related information for covered dependents, spouses, qualified beneficiaries (as
such term is defined under COBRA), and alternate recipients pursuant to QMCSO,
in accordance with applicable Deluxe COBRA policies and procedures. Effective as
of the Distribution Date, eFunds shall be solely responsible for compliance with
the health care continuation coverage requirements of COBRA and the eFunds
Health and Welfare Plans for eFunds Employees and their qualified beneficiaries
(as such term is defined under COBRA who terminate their employment with eFunds
after the Distribution Date).
5.8. Dependent and Health Care Reimbursement Accounts. Effective as of the
Distribution Date or such other date as Deluxe and eFunds may agree, eFunds
shall adopt and offer to eFunds Employees a dependent and health care
reimbursement plan substantially identical in all material respects to the
comparable Deluxe plan. All liabilities for or relating to eFund Employees under
the Deluxe dependent and health care reimbursement accounts shall remain
liabilities of the Deluxe Corporation Employee Health and Reimbursement Plan for
the period of January 1, 2000 through, but not after, the Distribution Date.
5.9. Long-Term Disability. Effective as of the Distribution Date, eFunds
Employees shall no longer be covered under the Deluxe Corporation Employee Group
Long-Term Disability Plan; provided, however, that eFunds Employees on long-term
disability as of the Distribution Date shall continue to be covered under the
Deluxe Corporation Employee Group Long-Term Disability Plan. Notwithstanding
anything to the contrary in this Article V, eFunds shall be under no obligation
to establish or maintain a long-term disability program.
5.10. Deluxe Workers' Compensation Program.
(a) Administration of Claims.
(i) After the Distribution Date, Deluxe shall continue to be
responsible for the administration and payment of all claims that
(A) have occurred under the Deluxe WCP before the Distribution
Date by eFunds Employees, regardless of whether or not such
claims are reported before the Distribution Date, and (B) have
been historically administered by Deluxe or its third party
administrator.
(ii) Effective as of the Distribution Date or such other date as
Deluxe and eFunds may mutually agree, eFunds shall be responsible
for the administration and payment of all claims that occur on or
after the Distribution Date by eFunds Employees.
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(iii) Each party shall fully cooperate with the other with respect to
the administration and reporting of claims for which each party
is responsible. Either party shall have the right to "Outsource"
(i.e., transfer the administration of claims to a third party
administrator or cause claims to be paid through insurance) any
and all claims for which it is administratively responsible.
(b) Insurance Policy.
(i) Effective as of the Distribution Date, Deluxe shall use its
commercially reasonable best efforts to procure workers
compensation insurance policies on behalf of eFunds from the
issuing insurance companies or different insurance companies
which are substantially identical in all Material Features to the
policies previously maintained by Deluxe; provided that the
retention under such eFunds policies shall be as determined by
eFunds.
(ii) Deluxe shall use its commercially reasonable best efforts to
maintain the premium rates for all workers' compensation
insurance policies for both Deluxe and eFunds in effect for
periods through the Distribution Date to be based on the
aggregate number of employees covered under the workers'
compensation insurance policies of both Deluxe and eFunds. Any
premiums due under the separate workers' compensation insurance
issued to eFunds shall be payable by eFunds.
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ARTICLE VI
EQUITY AND OTHER COMPENSATION
6.1. Deluxe Stock Purchase Plan. Effective as of the Distribution Date, eFunds
Employees shall be treated as terminated employees under the Deluxe Corporation
2000 Employee Stock Purchase Plan, and shall no longer be eligible to
participate in such plan. eFunds shall be under no obligation to establish or
maintain an employee stock purchase plan after the Distribution Date.
6.2. Deluxe Option Plans. Effective immediately prior to the Distribution,
Deluxe shall make the applicable adjustments to all Deluxe Options outstanding
under the Deluxe Option Plans in accordance with the stock option conversion
equation set forth in Exhibit A to the Conversion Plan, and eFunds shall grant
all eFunds Options in accordance with the Conversion Plan as a result of such
adjustments and take such other actions to effectuate and administer the
Conversion Plan, including without limitation the reservation of shares to be
issued upon exercise of the eFunds Options and the filing of any applicable
listing notices or applications relating to the shares. Prior to the
Distribution, eFunds shall register on a Form S-8 Registration Statement filed
with the Securities and Exchange Commission all shares which may be issued
pursuant to the Conversion Plan. Following the grant of the eFunds Options under
the Conversion Plan, eFunds shall deliver to each person receiving an eFunds
Option a prospectus and such other documents that are required to be delivered
pursuant to the applicable rules and regulations under the Securities Act of
1933, as amended.
6.3. Administrative Matters. Deluxe and eFunds shall adopt such procedures and
information sharing practices necessary or appropriate to permit Deluxe to
administer and maintain the Deluxe Option Plans and eFunds to administer and
maintain the Conversion Plan (including, for example, timely informing the other
of any termination of employment that affects the exercise period of a Deluxe
Option or eFunds Option). In addition, eFunds shall deliver to eFunds Employees
any prospectuses, notices or other documents provided by Deluxe relating to the
Deluxe Option Plans and Deluxe shall deliver to its employees any prospectuses,
notices or other documents provided by eFunds relating to the Conversion Plan.
6.4. Fees and Expenses. Deluxe shall be responsible for all fees and expenses
relating to the Deluxe Option Plans and eFunds shall be responsible for all fees
and expenses relating to the Conversion Plan.
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ARTICLE VII
FRINGE AND OTHER BENEFITS
7.1. Auto/HomeownerInsurance Program. Effective as of the Distribution Date,
eFunds Employees shall no longer be eligible to participate in the Deluxe
auto/homeowner insurance program. Deluxe shall offer eFunds Employees
participating in the program as of the Distribution Date the option to apply for
conversion to an individual policy. After the Distribution Date, eFunds shall be
solely responsible for implementing and maintaining auto/homeowner insurance or
similar programs for the eFunds Group. eFunds shall reimburse Deluxe for any and
all actual costs and expenses incurred by Deluxe related to its participation in
the Deluxe auto/homeowner insurance program and Deluxe's procurement of any and
all contracts and/or arrangements on behalf of eFunds and eFunds Employees.
7.2. Adoption Assistance. Effective as of the Distribution Date, eFunds
Employees shall no longer be eligible to participate in the Deluxe adoption
assistance program. eFunds shall be under no obligation to establish or maintain
an adoption assistance program after the Distribution Date.
7.3. Employee Student Loan Program. Effective as of the Distribution Date,
eFunds Employees shall no longer be eligible to participate in the Deluxe
student loan program. eFunds shall be under no obligation to establish or
maintain a student loan program after the Distribution Date.
7.4. Other Deluxe Benefit Programs. To the extent that Deluxe maintains,
sponsors or provides other benefits to eFunds Employees, then eFunds and Deluxe
shall agree to make commercially reasonable best efforts to mutually agree on
whether, when, and on what terms any member of the eFunds Group shall maintain,
sponsor or offer such benefits.
7.5. eFunds Benefit Programs. Except as provided otherwise in this Agreement, to
the extent that eFunds maintains, sponsors or provides fringe and other benefits
to eFunds Employees, including but not limited to, any short-term disability
program, tuition assistance program, business travel accident insurance, and
vacation, holiday and sick pay programs, then eFunds shall continue to have sole
responsibility with respect to such programs after the Distribution Date.
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ARTICLE VIII
ADMINISTRATIVE MATTERS
8.1. Reporting and Disclosure Communications to Participants. While eFunds is a
Participating Employer in the Deluxe Plans, eFunds shall take, or cause to be
taken, all actions necessary or appropriate to facilitate the distribution of
all Deluxe Plan-related communications and materials to employees, participants
and beneficiaries, including (without limitation) summary plan descriptions and
related summaries of material modification(s), summary annual reports,
investment information, prospectuses, notices and enrollment material for the
Deluxe Plans and eFunds Plans. eFunds shall reimburse Deluxe for any and all
actual costs and expenses relating to the copies of all such documents provided
to eFunds, except to the extent such costs are otherwise addressed in this
Agreement or pursuant to an Ancillary Agreement. eFunds shall assist, and eFunds
shall cause each other applicable member of the eFunds Group to assist, Deluxe
in complying with all reporting and disclosure requirements of ERISA, including
the preparation of Form Series 5500 annual reports for the Deluxe Plans, where
applicable.
8.2. Audits Regarding Vendor Contracts. From the period beginning as of the
Distribution Date and ending on such date as Deluxe and eFunds may mutually
agree, Deluxe and eFunds and their duly authorized representatives shall have
the right to conduct joint audits with respect to any vendor contracts that
relate to both the Deluxe Health and Welfare Plans and the eFunds Health and
Welfare Plans. The scope of such audits shall encompass the review of all
correspondence, account records, claim forms, canceled drafts (unless retained
by the bank), provider bills, medical records submitted with claims, billing
corrections, vendor's internal corrections of previous errors and any other
documents or instruments relating to the services performed by the vendor under
the applicable vendor contracts. Deluxe and eFunds shall agree on the
performance standards, audit methodology, auditing policy and quality measures,
reporting requirements, and the manner in which costs incurred in connection
with such audits will be shared.
8.3. Employee Identification Numbers. Until the Distribution Date, Deluxe and
eFunds shall not change any employee identification numbers assigned by Deluxe.
Deluxe and eFunds mutually agree to establish a policy pursuant to which
employee identification numbers assigned to either employees of Deluxe or eFunds
shall not be duplicated between Deluxe and eFunds.
8.4. Beneficiary Designations. All life insurance beneficiary designations made
by eFunds Employees for the Deluxe Plans shall be transferred to and be in full
force and effect under the corresponding eFunds Plans until such beneficiary
designations are replaced or revoked by the eFunds Employee who made the
beneficiary designation; provided, however, that any eFunds Plan may provide
otherwise. All beneficiary designations made by eFunds Employees and iDLX
Employees under the Deluxe 401(k) Plan, the Deluxe PSP or the Deluxe MPP shall
be void as of the Distribution Date. eFunds and iDLX Employees with accounts
transferred to the eFunds 401(k) Plan under Article III shall designate new
beneficiaries pursuant to the terms of the eFunds 401(k) Plan. If
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the event that an eFunds or iDLX Employee fails to designate a new beneficiary,
the employee's account shall be payable pursuant to the automatic beneficiary
rules under the eFunds 401(k) Plan.
8.5. Requests for IRS and DOL Opinions. Deluxe and eFunds shall make such
applications to regulatory agencies, including the IRS and DOL, as may be
necessary or appropriate. eFunds and Deluxe shall cooperate fully with one
another on any issue relating to the transactions contemplated by this Agreement
for which Deluxe and/or eFunds elects to seek a determination letter or private
letter ruling from the IRS or an advisory opinion from the DOL. eFunds shall
reimburse Deluxe for all out-of-pocket costs and expenses incurred by Deluxe in
connection with any such applications made on behalf of eFunds.
8.6. Fiduciary Matters. Deluxe and eFunds each acknowledge that actions
contemplated to be taken pursuant to this Agreement may be subject to fiduciary
duties or standards of conduct under ERISA or other applicable law, and no party
shall be deemed to be in violation of this Agreement if such party fails to
comply with any provisions hereof based upon such party's good faith
determination that to do so would violate such a fiduciary duty or standard.
8.7. Consent of Third Parties. If any provision of this Agreement is dependent
on the consent of any third party (such as a vendor) and such consent is
withheld, Deluxe and eFunds shall use their commercially reasonable best efforts
to implement the applicable provisions of this Agreement. If any provision of
this Agreement cannot be implemented due to the failure of such third party to
consent, Deluxe and eFunds shall negotiate in good faith to implement the
provision in a mutually satisfactory manner.
8.8. World Wide Web. Through the Distribution Date or such other date as eFunds
and Deluxe may mutually agree, Deluxe shall make its internet site available to
eFunds Employees and iDLX Employees on substantially the same terms as such
internet site is made available to Deluxe employees. eFunds shall reimburse
Deluxe for any and all actual costs and expenses related thereto. eFunds shall
reimburse Deluxe for any and all costs and expenses related thereto.
8.9. Tax Cooperation. In connection with the interpretation and administration
of this Agreement, Deluxe and eFunds shall take into account the agreements and
policies established pursuant to the Distribution Agreement and the parties'
intent to qualify the Distribution as a tax-free reorganization under the Code.
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ARTICLE IX
EMPLOYMENT-RELATED MATTERS
9.1. Terms of eFunds Employment. Except as otherwise provided in this Agreement,
eFunds shall have sole responsibility for determining all basic terms and
conditions of employment for eFunds Employees and iDLX Employees including,
without limitation, their pay and benefits in the aggregate. eFunds shall be
responsible, in its discretion, for securing the agreement of eFunds Employees
and iDLX Employees to any new agreements regarding confidential information and
proprietary developments and establishing all other terms and conditions of
employment. In addition, nothing in this Agreement or the Distribution Agreement
or any Ancillary Agreement should be construed to change the at-will status of
any of the employees of the Deluxe Group or the eFunds Group or iDLX.
9.2. Human Resources Data Support Systems. Deluxe shall provide human resources
data support for eFunds Employees and iDLX Employees for a period mutually
agreed upon between Deluxe and eFunds. Deluxe and eFunds each reserves the right
to discontinue eFunds' access to any Deluxe human resources data support systems
with reasonable notice. eFunds agrees to fully reimburse Deluxe for any and all
associated actual costs and expenses relating to its use of the Deluxe human
resources data support systems.
9.3. Confidentiality and Proprietary Information. No provision of this Agreement
or the Distribution Agreement or any Ancillary Agreement shall be deemed to
release any individual for any violation of the Deluxe, eFunds or iDLX
non-competition guideline or any agreement or policy pertaining to confidential
or proprietary information of any member of the Deluxe Group, eFunds Group or
iDLX, as the case may be, or otherwise relieve any individual of his or her
obligations under such non-competition guideline, agreement, or policy.
9.4. Personnel and Pay Records. For the period beginning on the Distribution
Date and ending on such date as Deluxe and eFunds may mutually agree, Deluxe
shall make reasonably available to eFunds, subject to applicable laws on
confidentiality and data protection, all current and historic forms, documents
or information, no matter in what format stored, relating to pre-Distribution
Date personnel, medical records, and payroll information for eFunds Employees
and iDLX Employees. Such forms, documents or information may include, but is not
limited to: (a) information regarding an eFunds Employee's or iDLX Employee's
ranking or promotions; (b) the existence and nature of garnishment orders or
other judicial or administrative actions or orders affecting an employee's or
service provider's compensation; and (c) performance evaluations. eFunds shall
fully reimburse Deluxe for the cost associated with such availability and
access.
9.5. Non-Termination of Employment; No Third-Party Beneficiaries. No provision
of this Agreement or the Distribution Agreement or any Ancillary Agreement shall
be construed to create any right, or accelerate entitlement, to any compensation
or benefit whatsoever on the part of any eFunds Employee, iDLX Employee, Deluxe
Employee or other future, present or former employee of
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eFunds, iDLX or Deluxe under any eFunds Plan, iDLX Plan, Deluxe Plan or
otherwise. Without limiting the generality of the foregoing, except as provided
in this Agreement or under any agreement relating to a Deluxe Option or eFunds
Option in accordance with the terms of the Conversion Plan, neither the
Distribution nor the termination of the Participating Employer status of eFunds
or any member of the eFunds Group or iDLX shall cause any employee to be deemed
to have incurred a termination of employment.
9.6. Employment Litigation.
(a) Claims to be Transferred to eFunds. As of the date of this Agreement,
the legal responsibility for claims identified in Schedule 5(a) filed
by or relating to eFunds Employees shall be transferred in their
entirety from Deluxe to eFunds. Thereafter, eFunds shall assume the
defense of these claims. eFunds hereby indemnifies, defends and holds
harmless Deluxe against these claims. eFunds shall reimburse Deluxe
for any reasonable attorneys' fees and other out-of-pocket expenses
reasonably incurred by Deluxe subsequent to the date of this Agreement
in connection with investigating and/or defending against any such
claim and after the Distribution Date a reasonable reimbursement for
any services provided by members of the Deluxe legal staff.
(b) Claims to be Jointly Defended by Deluxe and eFunds. Deluxe and eFunds
shall jointly defend the claims identified in Schedule 5(b); provided,
however, that (i) eFunds shall indemnify and hold harmless Deluxe
against any judgments entered against Deluxe on the claims identified
in Schedule 5(b) or settlements of the claims identified in Schedule
5(b), provided, however, that Deluxe shall not compromise or settle
any such claim regarding eFunds Employees without the prior consent of
eFunds, which such consent shall not be unreasonably withheld or
delayed, and provided further, however, that such compromise or
settlement shall be without any admission of fault or liability and
shall release eFunds in full from any further liability with respect
to such claim; and (ii) eFunds and Deluxe shall share pro rata the
attorneys' fees and all other expenses reasonably incurred subsequent
to the date of this Agreement in connection with defending against the
unemployment claims identified in Schedule 5(b) based on the number of
employees of each organization that are claimants in the litigation.
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(c) Unscheduled Claims. After the date of this Agreement, eFunds and
Deluxe shall supplement Schedules 9.6(a) and 9.6(b) for additional
employment-related claims which will be subject to the provisions of
such Sections. eFunds shall have the sole responsibility for all
employment-related claims regarding eFunds Employees and iDLX
Employees that exist, or come into existence, on or after the
Distribution Date arising out of or relating to their employment in
the eFunds Group or iDLX.
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ARTICLE X
GENERAL PROVISIONS
10.1. Effect if Distribution Does Not Occur. Subject to Section 10.8, if the
Distribution does not occur, then all actions and events that are, under this
Agreement, to be taken or occur effective as of the Distribution Date, or
otherwise in connection with the Distribution, shall not be taken or occur
except to the extent specifically agreed by eFunds and Deluxe.
10.2. Relationship of Parties. Nothing in this Agreement shall be deemed or
construed by the parties or any third party as creating the relationship of
principal and agent, partnership or joint venture between the parties, the
understanding and agreement being that no provision contained herein, and no act
of the parties, shall be deemed to create any relationship between the parties
other than the relationship set forth herein.
10.3. Affiliates. Each of Deluxe and eFunds shall cause to be performed, and
hereby guarantee the performance of, any and all actions of the Deluxe Group or
the eFunds Group and iDLX, respectively.
10.4. Incorporation of Certain Distribution Agreement Provisions. The following
provisions of the Distribution Agreement are hereby incorporated herein by
reference, and unless otherwise expressly specified herein, such provisions
shall apply as if fully set forth herein: Section 9.01 (Limitation of
Liability); Section 9.02 (Further Assurances); Section 9.03 (Waiver); Section
9.04 (Remedies); Section 9.05 (Performance); Section 9.06 (References;
Construction); excepting the last sentence thereof, and Section 9.08 (Successors
and Assignment).
10.5. Governing Law. To the extent not preempted by applicable federal law, this
Agreement shall be governed by, construed and interpreted in accordance with the
laws of the State of Minnesota, irrespective of the choice of law principles of
the State of Minnesota, as to all matters, including matters of validity,
construction, effect, performance and remedies.
10.6. Severability. If any term or other provision of this Agreement is
determined 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 either 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 and in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the fullest possible extent.
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10.7. Amendment. eFunds and Deluxe, acting through their respective Vice
Presidents of Human Resources, may mutually agree to amend the provisions of
this Agreement at any time or times, either prospectively or retroactively, to
such extent and in such manner as they mutually deem advisable (subject to each
of their authority and procedures required to amend Plans).
10.8. Termination. This Agreement may be terminated at any time prior to the
Distribution Date by and in the sole discretion of Deluxe without the approval
of eFunds. In the event of termination pursuant to this Section, no party shall
have any liability to the other party hereunder.
10.9. Conflict. In the event of any conflict between the provisions of this
Agreement and the Distribution Agreement, any Ancillary Agreement, or Plan, the
provisions of this Agreement shall control.
10.10. Counterparts. This Agreement may be executed in two or more counterparts
each of which shall be deemed to be an original, but all of which together shall
constitute but one and the same Agreement.
IN WITNESS WHEREOF, each of the parties have caused this Employee Matters
Agreement to be executed on its behalf by its officers thereunto duly authorized
on the day and year first above written.
DELUXE CORPORATION
By: _____________________________________
Name: ___________________________________
Title: __________________________________
eFUNDS CORPORATION
By: _____________________________________
Name: ___________________________________
Title: __________________________________
(Signature Page to Employee Matters Agreement)
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