TAX SHARING AGREEMENT
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THIS TAX SHARING AGREEMENT (this "Agreement") dated effective as of April
1, 2000, by and among Deluxe Corporation ("Deluxe"), a Minnesota corporation,
each Deluxe Affiliate (as defined below), eFunds Corporation ("eFunds"), a
Delaware corporation and currently a direct, wholly owned subsidiary of Deluxe,
and each eFunds Affiliate (as defined below) is entered into in connection with
the Distribution (as defined below).
RECITALS
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WHEREAS, as of the date hereof, Deluxe and its direct and indirect domestic
subsidiar ies are members of an Affiliated Group (as defined below), of which
Deluxe is the common parent corporation;
WHEREAS, as set forth in the Assignment and Assumption Agreement dated as
of March 31, 2000 (the "Assignment and Assumption Agreement"), and subject to
the terms and conditions thereof, Deluxe has transferred and assigned to eFunds
substantially all of the assets and liabilities currently associated with the
eFunds Business (as defined below) and the stock or similar interests currently
held by Deluxe in subsidiaries and other entities that conduct such business
(the "Transfer");
WHEREAS, as set forth in the Initial Public Offering and Distribution
Agreement dated as of March 31, 2000 (the "Distribution Agreement"), and subject
to the terms and conditions thereof, Deluxe and eFunds currently contemplate
that, following the Transfer, eFunds will make an initial public offering (the
"IPO") of eFunds common stock that will reduce Deluxe's ownership of eFunds on a
fully diluted basis to not less than eighty and one-tenth percent (80.1%);
WHEREAS, as set forth in the Distribution Agreement, and subject to the
terms and conditions thereof, Deluxe intends, sometime after the IPO, to
distribute all of its shares of eFunds common stock to Deluxe shareholders in
exchange for shares of Deluxe common stock (the "Distribution");
WHEREAS, the Transfer and the Distribution are intended to qualify as a
tax-free reorganization and distribution under sections 368(a)(1)(D) and 355 of
the Code; and
WHEREAS, in contemplation of the Distribution pursuant to which eFunds and
its direct and indirect domestic subsidiaries will cease to be members of the
Deluxe Group (as defined below) the parties hereto have determined to enter into
this Agreement, setting forth their agreement with respect to certain tax
matters.
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AGREEMENT
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NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, Deluxe, for itself and on behalf of its subsidiaries as of the
Transfer Date and its future subsidiaries (other than eFunds and its
subsidiaries), and eFunds, for itself and on behalf of its subsidiaries as of
the Transfer Date and its future subsidiaries, hereby agree as follows:
Section 1. Definitions.
As used in this Agreement, capitalized terms shall have the following
meanings (such meanings to be equally applicable to both the singular and the
plural forms of the terms defined):
"Affiliated Group" means an affiliated group of corporations within the
meaning of section 1504(a)(1) of the Code that files a consolidated return.
"After Tax Amount" means any additional amount necessary to reflect the
hypothetical Tax consequences of the receipt or accrual of any payment required
to be made under this Agreement (including the receipt or payment of an
additional amount or amounts hereunder and the effect of the deductions
available for interest paid or accrued and for Taxes such as state and local
income Taxes), determined by using the highest marginal corporate Tax rate (or
rates, in the case of an item that affects more than one Tax) for the relevant
taxable period (or portion thereof).
"Assignment and Assumption Agreement" has the meaning set forth in the
Recitals.
"Audit" includes any audit, assessment of Taxes, other examination by any
Tax Authority, proceeding, or appeal of such a proceeding relating to Taxes,
whether administrative or judicial, including proceedings relating to competent
authority determinations.
"Code" means the Internal Revenue Code of 1986, as amended.
"Combined Return" means any Tax Return, other than with respect to United
States federal Income Taxes, filed on a consolidated, combined (including nexus
combination, worldwide combination, domestic combination, line of business
combination or any other form of combination) or unitary basis wherein eFunds or
one or more eFunds Affiliates join in the filing of such Tax Return (for any
taxable period or portion thereof) with Deluxe or one or more Deluxe Affiliates.
"Consolidated Return" means any Tax Return with respect to United States
federal Income Taxes filed on a consolidated basis wherein eFunds or one or more
eFunds Affiliates join in the filing of such Tax Return (for any taxable period
or portion thereof) with Deluxe or one or more Deluxe Affiliates.
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"Deluxe Affiliate" means any corporation or other entity directly or
indirectly controlled by Deluxe, but excluding eFunds or any eFunds Affiliate.
"Deluxe Employee" means an employee of Deluxe or any Deluxe Affiliate
immediately after the Distribution, or a retiree or other former employee of
Deluxe or any Deluxe Affiliate who is not an eFunds Employee, provided that any
eFunds Employee who becomes a Deluxe Employee shall be considered a Deluxe
Employee.
"Deluxe Group" means the Affiliated Group, or similar group of entities as
defined under corresponding provisions of the laws of other jurisdictions, of
which Deluxe is the common parent corporation, and any corporation or other
entity which may be, may have been or may become a member of such group from
time to time, but excluding any member of the eFunds Group.
"Distribution" has the meaning set forth in the Recitals.
"Distribution Agreement" has the meaning set forth in the recitals to this
Agreement.
"Distribution Date" means the close of business on the date which the
Distribution is effected.
"Distribution Taxes" means any Taxes imposed on Deluxe or any Deluxe
Affiliate resulting from, or arising in connection with, the failure of the
Distribution to be tax-free to such party under the Code (including, without
limitation, any Tax resulting from the failure of the Distribution to qualify
under section 355 and section 368(a)(1)(D) of the Code or the application of
section 355(d) or section 355(e) of the Code to the Distribution) or
corresponding provisions of the laws of any other jurisdictions. Each Tax
referred to in the immediately preceding sentence shall be determined using the
highest marginal corporate Income Tax rate for the relevant taxable period (or
portion thereof).
"eFunds Affiliate" means any corporation or other entity directly or
indirectly controlled by eFunds.
"eFunds Business" means (a) the business and operations of the business
entities of Deluxe currently known under the following names, and as such
business and operations will continue following the Transfer Date: (i) eFunds,
(ii) iDLX Corporation, (iii) eFunds Holdings Ltd., (iv) Connex Europe SRL, (v)
eFunds Overseas, Inc., (vi) eFunds Corporation(of Tustin California), (vii)
Deluxe Payment Protection Systems, Inc., (viii) Chex Systems, Inc., (ix)
Analytic Research Technologies, Inc., (x) eFunds Canada, Inc., (xi) eFunds
Electronic Benefits, Inc., (xii) eFunds International Limited, (xiii) iDLX
International B.V., (xiv) iDLX Holdings N.V., (xv) eFunds IT Solutions Group,
Inc., (xvi) iDLX Technology Partners Private Limited, and (xvii) Access Cash
International LLC, and (b) except as otherwise expressly provided herein,
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any terminated, divested or discontinued businesses or operations that at the
time of termination, divestiture or discontinuation primarily related to the
eFunds business as then conducted.
"eFunds Employee" means an employee of eFunds or any eFunds Affiliate
immediately after the Distribution, or a retiree or other former employee of
eFunds or any eFunds Affiliate who is not a Deluxe Employee, provided that any
Deluxe Employee who becomes an eFunds Employee shall be considered an eFunds
Employee.
"eFunds Group" means the Affiliated Group, or similar group of entities as
defined under corresponding provisions of the laws of other jurisdictions, of
which eFunds will be the common parent corporation immediately after the
Distribution, and any corporation or other entity which may become a member of
such group from time to time.
"Estimated Tax Installment Date" means the estimated Tax installment due
dates prescribed in section 6655(c) of the Code and any other date on which an
installment of Taxes is required to be made.
"Filing Party" has the meaning set forth in Section 8.01.
"Final Determination" shall mean the final resolution of liability for any
Tax for any taxable period, by or as a result of: (i) a final and unappealable
decision, judgment, decree or other order by any court of competent
jurisdiction; (ii) a final settlement with the IRS, a closing agreement or
accepted offer in compromise under Code sections 7121 or 7122, or a comparable
agreement under the laws of other jurisdictions, which resolves the entire Tax
liability for any taxable period; (iii) any allowance of a refund or credit in
respect of an overpayment of Tax, but only after the expiration of all periods
during which such refund may be recovered by the jurisdiction imposing the Tax;
or (iv) any other final disposition, including by reason of the expiration of
the applicable statute of limitations.
"Income Tax" shall mean any federal, state, local or foreign Tax determined
by reference to income, net worth, gross receipts or capital, or any such Taxes
imposed in lieu of such Tax.
"Independent Firm" has the meaning set forth in Section 9.03.
"Initial Ruling" means any private letter ruling issued by the IRS in
connection with the Distribution in response to Deluxe's request for such a
letter ruling filed on March 31, 2000.
"Interim Period" means a taxable period beginning on or after the Transfer
Date but before the Distribution Date.
"IPO" has the meaning set forth in the Recitals.
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"IRS" means the United States Internal Revenue Service or any successor
thereto, including, but not limited to its agents, representatives, and
attorneys.
"Joint Responsibility Item" means any Tax Item for which the non-Filing
Party's responsibility under this Agreement could exceed one million dollars
($1,000,000), but not a Sole Responsibility Item.
"Option" means an option to acquire common stock, or other equity-based
incentives the economic value of which is designed to mirror that of an option,
including non-qualified stock options, discounted non-qualified stock options,
cliff options to the extent stock is issued or issuable (as opposed to cash
compensation), and tandem stock options to the extent stock is issued or
issuable (as opposed to cash compensation).
"Owed Party" has the meaning set forth in Section 7.04.
"Owing Party" has the meaning set forth in Section 7.04.
"Payment Period" has the meaning set forth in Section 7.04(e).
"Post-Distribution Period" means a taxable period beginning after the
Distribution Date.
"Pre-Distribution Period" means any Pre-Transfer Period and/or Interim
Period.
"Pre-Transfer Period" means a taxable period beginning before the Transfer
Date.
"Ruling Documents" means (1) the request for a private letter ruling under
section 355 and various other sections of the Code, filed with the IRS on March
31, 2000, together with any supplemental filings or ruling requests or other
materials subsequently submitted on behalf of Deluxe, its subsidiaries and
shareholders to the IRS, the appendices and exhibits thereto, and any rulings
issued by the IRS to Deluxe (or any Deluxe Affiliate) in connection with the
Distribution or (2) any similar filings submitted to, or rulings issued by, any
other Tax Authority in connec tion with the Distribution.
"Separate Tax Liability" means an amount equal to the Tax liability that
eFunds and each eFunds Affiliate would have incurred if they had filed a
consolidated return, combined return or a separate return, as the case may be,
separate from the Deluxe Group, for all Pre- Distribution Periods, and such
amount shall be computed by Deluxe using the highest marginal corporate Tax rate
(or rates, in the case of an item that affects more than one Tax) for the
relevant taxable period (or portion thereof), giving effect to any carryforward
or carryover of any Tax Asset and in a manner consistent with (i) general Tax
accounting principles, (ii) the Code and the Treasury regulations promulgated
thereunder, (iii) any similar provisions of the laws of other jurisdictions, if
applicable, and (iv) past practice, if any.
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"Sole Responsibility Item" means any Tax Item for which the non-Filing
Party has the entire economic liability under this Agreement.
"Supplemental Ruling" means (1) any ruling issued by the IRS in connection
with the IPO or Distribution other than a ruling in response to Deluxe's request
for a private letter ruling filed on March 31, 2000, and (2) any similar ruling
issued by any other Tax Authority in connection with the IPO or Distribution
addressing the application of a provision of the laws of another jurisdiction.
"Supplemental Ruling Documents" means (1) the request for a Supplemental
Ruling and any materials, appendices and exhibits submitted or filed therewith
and any Supplemental Rulings issued by the IRS to Deluxe and (2) any similar
filings submitted to, or rulings issued by, any other Taxing Authority in
connection with the Distribution.
"Tax Asset" means any Tax Item that has accrued for Tax purposes, but has
not been used during a taxable period, and that could reduce a Tax in another
taxable period, including a net operating loss, net capital loss, investment tax
credit, foreign tax credit, research and experimentation credit, charitable
deduction or credit related to alternative minimum tax or any other Tax credit.
"Tax Benefit" means a reduction in the Tax liability of a taxpayer (or of
the Affiliated Group of which it is a member) for any taxable period. Except as
otherwise provided in this Agreement, a Tax Benefit shall be deemed to have been
realized or received from a Tax Item in a taxable period only if and to the
extent that the Tax liability of the taxpayer (or of the Affiliated Group of
which it is a member) for such period, after taking into account the effect of
the Tax Item on the Tax liability of such taxpayer in the current period and all
prior periods, is less than it would have been if such Tax liability were
determined without regard to such Tax Item.
"Tax Detriment" means an increase in the Tax liability of a taxpayer (or of
the Affiliated Group of which it is a member) for any taxable period. Except as
otherwise provided in this Agreement, a Tax Detriment shall be deemed to have
been realized or received from a Tax Item in a taxable period only if and to the
extent that the Tax liability of the taxpayer (or of the Affiliated Group of
which it is a member) for such period, after taking into account the effect of
the Tax Item on the Tax liability of such taxpayer in the current period and all
prior periods, is more than it would have been if such Tax liability were
determined without regard to such Tax Item.
"Tax Item" means any item of income, gain, loss, deduction or credit, or
other attribute that may have the effect of increasing or decreasing any Tax.
"Tax Return" means any return, report, certificate, form or similar
statement or document (including any related or supporting information or
schedule attached thereto and any information return, amended tax return, claim
for refund or declaration of estimated tax) required
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to be supplied to, or filed with, a Taxing Authority in connection with the
determination, assessment or collection of any Tax or the administration of any
laws, regulations or administra tive requirements relating to any Tax.
"Taxes" includes all taxes, charges, fees, duties, levies, imposts, rates
or other assess ments imposed by any federal, state, local or foreign Taxing
Authority, including, but not limited to, income, gross receipts, excise,
property, sales, use, license, capital stock, transfer, franchise, payroll,
withholding, social security, value added or other taxes, and any interest,
penalties or additions attributable thereto.
"Taxing Authority" means any governmental authority or any subdivision,
agency, commission or authority thereof or any quasi-governmental or private
body having jurisdiction over the assessment, determination, collection or
imposition of any Tax (including the IRS).
"Tax Services" has the meaning set forth in Section 2.05(a).
"Transfer" has the meaning set forth in the Recitals.
"Transfer Date" means March 31, 2000.
Section 2. Preparation and Filing of Tax Returns.
2.01. Deluxe's Responsibility. Deluxe shall have sole and exclusive
responsibility for the preparation and filing of:
(a) all Tax Returns with respect to Deluxe, any Deluxe Affiliate,
eFunds, and/or any eFunds Affiliate for Pre-Transfer Periods and all
Consolidated Returns and all Combined Returns for any Interim Periods; and
(b) all Tax Returns with respect to Deluxe and any Deluxe Affiliate
for Post- Distribution Periods.
2.02. eFunds's Responsibility. Except as otherwise provided in Section 2.01
of this Agreement, eFunds shall have sole and exclusive responsibility for the
preparation and filing of (1) all Tax Returns (other than Consolidated Returns
and Combined Returns) for eFunds and any eFunds Affiliate for any Interim
Periods and (2) all Tax Returns with respect to eFunds and any eFunds Affiliate
for Post Distribution Periods.
2.03. Agent. Subject to the other applicable provisions of this Agreement,
eFunds hereby irrevocably designates, and agrees to cause each eFunds Affiliate
to so designate, Deluxe as its sole and exclusive agent and attorney-in-fact to
take such action (including execution of documents) as Deluxe, in its sole
discretion, may deem appropriate in any and all matters (including Audits)
relating to any Tax Return described in Section 2.01 of this Agreement.
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2.04. Manner of Tax Return Preparation.
(a) Unless otherwise required by a Taxing Authority, the parties
hereby agree to prepare and file all Tax Returns, and to take all other
actions, in a manner consistent with (1) this Agreement, (2) any Ruling
Documents, and (3) any Supplemental Ruling Documents. All Tax Returns shall
be filed on a timely basis (taking into account applicable extensions) by
the party responsible for filing such returns under this Agreement.
(b) Deluxe shall have the exclusive right, in its sole discretion,
with respect to any Tax Return described in Section 2.01(a) of this
Agreement (without regard to which party is responsible for preparing and
filing such Tax Return) to determine (1) the manner in which such Tax
Return shall be prepared and filed, including the elections, method of
accounting, positions, conventions and principles of taxation to be used
and the manner in which any Tax Item shall be reported, (2) whether any
extensions may be requested, (3) the elections that will be made by Deluxe,
any Deluxe Affiliate, eFunds, or any eFunds Affiliate on such Tax Return,
(4) whether any amended Tax Returns shall be filed, (5) whether any claims
for refund shall be made, (6) whether any refunds shall be paid by way of
refund or credited against any liability for the related Tax, and (7)
whether to retain outside firms to prepare or review such Tax Returns.
Deluxe shall provide eFunds with copies of all Tax Returns with respect to
eFunds and/or any eFunds Affiliate for Pre-Transfer Periods and all
Consolidated Returns and all Combined Returns for any Interim Periods
within thirty (30) days after filing any such Tax Returns.
(c) Within ninety (90) days after filing the 2000 Consolidated Return,
Deluxe shall notify eFunds of the Tax attributes associated with eFunds and
each eFunds Affiliate, and the Tax bases of the assets and liabilities,
transferred to eFunds in connection with the Transfer. At eFunds's request,
Deluxe will use its best efforts to provide eFunds with preliminary
estimates of such information as soon as is practicable.
2.05. Tax Services Agreement.
(a) In General. Deluxe shall perform the duties and obligations
ascribed to eFunds in Section 2.02 of this Agreement and provide other Tax
related services to eFunds, as set forth on Schedule 2.05(a) attached
hereto (the "Tax Services"). In consideration for the Tax Services, eFunds
shall pay to Deluxe $37,500 for each month in which the Tax Services are to
be performed. Payment with respect to Tax Services performed in a
particular month shall be made within thirty (30) days of the end of such
month in immediately available funds as instructed by Deluxe. Deluxe will
continue to perform the Tax Services until December 31, 2001; provided,
however, that, from time to time prior to December 31, 2001, the parties
can negotiate in good faith to amend Schedule 2.05(a) and the accompanying
fee.
(b) Right to Review. Upon eFunds's request, Deluxe shall provide
eFunds with any Tax Return to be filed by Deluxe on behalf of eFunds
pursuant to the Tax Services at least ten (10) days prior to the due date
of such Tax Return or as is otherwise consistent with past
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practice. eFunds shall have the right to comment on any such Tax Return and
Deluxe shall reasonably consider all comments made by eFunds.
(c) Information. eFunds shall timely provide, in a manner consistent
with past practice, all information necessary for Deluxe to prepare all Tax
Returns and compute all estimated Tax payments (for purposes of Section
7.01 of this Agreement). Deluxe shall provide eFunds with copies of all Tax
Returns filed on behalf of eFunds pursuant to the Tax Services and any
notices or communications from any Taxing Authority relating to any Tax or
Tax Return of eFunds or any eFunds Affiliate covered by the Tax Services.
eFunds shall execute and deliver to Deluxe a power of attorney authorizing
the appropriate Deluxe employees to sign any Tax Return prepared by Deluxe
on behalf of eFunds pursuant to the Tax Services.
Section 3. Liability for Taxes.
3.01. eFunds's Liability for Section 2.01(a) Taxes. With respect all Tax
Returns described in Section 2.01(a) of this Agreement, eFunds shall be liable
for the Separate Tax Liability of eFunds and all eFunds Affiliates, and shall be
entitled to receive and retain all refunds or credits of Taxes previously paid
by eFunds with respect to any such Separate Tax Liability.
3.02. Deluxe's Liability for Section 2.01 Taxes. With respect all Tax
Returns described in Section 2.01(a) of this Agreement, Deluxe shall be liable
for the difference between the Separate Tax Liability and all Taxes shown as due
on such Tax Returns, and shall be entitled to receive and retain all refunds or
credits of Taxes attributable to such difference. With respect all Tax Returns
described in Section 2.01(b) of this Agreement, Deluxe shall be liable for all
Taxes due with respect thereto, and shall be entitled to receive and retain all
refunds or credits of Taxes previously paid by Deluxe with respect to such
Taxes.
3.03. eFunds's Liability for Section 2.02 Taxes. With respect all Tax
Returns described in Section 2.02 of this Agreement, eFunds shall be liable for
all Taxes due with respect thereto, and shall be entitled to receive and retain
all refunds or credits of Taxes previously paid by eFunds with respect to such
Taxes.
3.04. Payment of Tax Liability. If one party is liable for Taxes, under
Sections 3.01 through 3.03 of this Agreement, with respect to Tax Returns for
which another party is responsi ble for preparing and filing, then the liable
party shall pay the Taxes to the other party pursuant to Section 7.04 of this
Agreement.
3.05. Computation. Deluxe shall provide eFunds with a written calculation
in reasonable detail setting forth the amount of any Separate Tax Liability or
estimated Separate Tax Liability (for purposes of Section 7.01 of this
Agreement). eFunds shall have the right to review and comment on such
calculation. Any dispute with respect to such calculation shall be resolved
pursuant to Section 9.03 of this Agreement, provided, however, that,
notwithstanding any dispute
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with respect to any such calculation, in no event shall any payment attributable
to the amount of any Separate Tax Liability or estimated Separate Tax Liability
be paid later than the date provided in Section 7 of this Agreement, subject to
subsequent resolution of such dispute pursuant to Section 9.03 of this
Agreement.
Section 4. Distribution Taxes and Deconsolidation.
4.01. Distribution Taxes.
(a) Deluxe's Liability for Distribution Taxes. Notwithstanding
Sections 3.01 through 3.03 of this Agreement, Deluxe and each Deluxe
Affiliate shall be liable for one hundred percent (100%) of any
Distribution Taxes that result from one or more of the following:
(i) any act, failure to act or omission of or by Deluxe (or any
Deluxe Affiliate) inconsistent with any material, information,
covenant or representation in the Ruling Documents, Supplemental
Ruling Document, Initial Ruling, or Supplemental Ruling;
(ii) any act, failure to act or omission of or by Deluxe (or any
Deluxe Affiliate) after the date of the Distribution, including,
without limitation, a cessation, transfer to affiliates, or
disposition of its active trades or businesses, or an issuance of
stock, stock buyback or payment of an extraordinary dividend by Deluxe
(or any Deluxe Affiliate) following the Distribution;
(iii) any acquisition of any stock or assets of Deluxe (or any
Deluxe Affiliate) by one or more other persons prior to or following
the Distribution; or
(iv) any issuance of stock by Deluxe (or any Deluxe Affiliate),
or change in ownership of stock in Deluxe (or any Deluxe Affiliate),
that causes section 355(d) or section 355(e) of the Code to apply to
the Distribution.
(b) eFunds's Liability for Distribution Taxes. Notwithstanding
Sections 3.01 through 3.03 of this Agreement, eFunds and each eFunds
Affiliate shall be liable for one hundred percent (100%) of any
Distribution Taxes that result from one or more of the following:
(i) any act, failure to act or omission of or by eFunds (or any
eFunds Affiliate) inconsistent with any material, information,
covenant or representation in the Ruling Documents, Supplemental
Ruling Document, Initial Ruling, or Supplemental Ruling;
(ii) any act, failure to act or omission of or by eFunds (or any
eFunds Affiliate) after the date of the Distribution, including
without limitation, a cessation, transfer to affiliates or disposition
of its active trades or businesses, or an issuance of stock, stock
buyback or payment of an extraordinary dividend by eFunds (or any
eFunds Affiliate) following the Distribution;
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(iii) any acquisition of any stock or assets of eFunds (or any
eFunds Affiliate) by one or more other persons following the
Distribution; or
(iv) any issuance of stock by eFunds (or any eFunds Affiliate),
or change in ownership of stock in eFunds (or any eFunds Affiliate),
that causes section 355(d) or section 355(e) of the Code to apply to
the Distribution.
(c) Joint Liability for Remaining Distribution Taxes. The liability
for any Distribution Taxes not allocated by Sections 4.01(a) or (b) of this
Agreement shall be borne eighty percent (80%) by Deluxe and twenty percent
(20%) by eFunds.
4.02. Private Letter Rulings.
(a) Information. Deluxe has provided eFunds with copies of the Ruling
Docu ments submitted on or prior to the date hereof and shall provide
eFunds with copies of any additional Ruling Documents prepared after the
date hereof prior to the submission of such Ruling Documents to a Taxing
Authority.
(b) Supplemental Rulings.
(i) In General. Deluxe agrees that at the reasonable request of
eFunds, Deluxe shall cooperate with eFunds and use its reasonable best
efforts to seek to obtain, as expeditiously as possible, a
Supplemental Ruling or other guidance from the IRS or any other Taxing
Authority for the purpose of confirming (1) the continuing validity of
any ruling issued by any Taxing Authority addressing the application
of the law to the Distribution or (2) compli ance on the part of
eFunds (or any eFunds Affiliate) with its obligations under Section
4.01(b) of this Agreement. However, Deluxe shall not be obligated to
seek a Supplemental Ruling if it reasonably believes that seeking such
Supplemental Ruling would adversely affect Deluxe (or any Deluxe
Affiliate). Further, in no event shall Deluxe be required to file any
Supplemental Ruling Documents unless eFunds represents that (1) it has
read the Supplemental Ruling Documents and (2) all information and
representations, if any, relating to eFunds (or any eFunds Affiliate)
contained in the Supplemental Ruling Documents are true, correct and
complete in all material respects. eFunds shall reimburse Deluxe for
all costs and expenses incurred by Deluxe in obtaining a Supplemental
Ruling requested by eFunds. Neither eFunds nor any eFunds Affiliate
shall seek any guidance (whether written or oral) from the IRS or any
other Taxing Authority concerning the Distribution except as set forth
in this Section 4.02(b). The preceding sentence shall not in any way
limit the ability of any outside counsel to eFunds to request informal
guidance from the IRS regarding such issues on an anonymous basis.
(ii) Participation Rights. If Deluxe requests a Supplemental
Ruling or other guidance after the date of this Agreement: (1) Deluxe
shall keep eFunds informed in a timely manner of all material actions
taken or proposed to be taken by Deluxe in connection therewith; (2)
Deluxe shall (A) reasonably in advance of the submission of any such
Supplemen tal Ruling Documents provide eFunds with a draft copy
thereof, (B) reasonably consider eFunds's comments on such draft copy,
and (C) provide eFunds with a final copy and, (D) provide eFunds with
notice reasonably in advance of, and eFunds shall have the right to
attend, any meetings with the Taxing Authority (subject to the
approval of the Taxing Authority) that
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relate to such Supplemental Ruling. eFunds agrees that eFunds shall
cooperate fully with Deluxe with respect to any request by Deluxe for
a Supplemental Ruling.
4.03. Carrybacks.
(a) In General. Deluxe agrees to pay to eFunds the United States
federal income Tax Benefit from the use in any Pre-Distribution Period (the
"Carryback Period") of a carryback of any Tax Asset of the eFunds Group
from a Post-Distribution Period (other than a carryback of any Tax Asset
attributable to Distribution Taxes). If subsequent to the payment by Deluxe
to eFunds of the United States federal income Tax Benefit of a carryback of
a Tax Asset of the eFunds Group, there shall be a Final Determination which
results in a (1) change to the amount of the Tax Asset so carried back or
(2) change to the amount of such United States federal income Tax Benefit,
eFunds shall repay to Deluxe, or Deluxe shall repay to eFunds, as the case
may be, any amount which would not have been payable to such other party
pursuant to this Section 4.03(a) had the amount of the benefit been
determined in light of these events. Nothing in this Section 4.03(a) shall
require Deluxe to file an amended Tax Return or claim for refund or credit
of Taxes; provided, however, that Deluxe shall use its reasonable best
efforts to use any carryback of a Tax Asset of the eFunds Group that is
otherwise carried back under this Section 4.03(a).
(b) Net Operating Losses. Notwithstanding any other provision of this
Agree ment, eFunds hereby expressly agrees to elect (under section
172(b)(3) of the Code and, to the extent feasible, any similar provision of
any state, local or foreign Tax law) to relinquish any right to carryback
net operating losses for any tax year with respect to which such net
operating loss could otherwise be carried back into a Consolidated Return
or a Combined Return (in which event no payment shall be due from Deluxe to
eFunds in respect of such net operating losses).
4.04. Allocation of Tax Items. All Tax computations for (1) any
Pre-Distribution Periods ending on the Distribution Date and (2) the immediately
following taxable period of eFunds or any eFunds Affiliate, shall be made
pursuant to the principles of section 1.1502-76(b) of the Treasury Regulations
or of a corresponding provision under the laws of other jurisdictions, as
determined by Deluxe, taking into account all reasonable suggestions made by
eFunds with respect thereto.
4.05. Continuing Covenants. Deluxe (for itself and each Deluxe Affiliate)
and eFunds (for itself and each eFunds Affiliate) agree (1) not to take any
action reasonably expected to result in an increased Tax liability to the other,
a reduction in a Tax Asset of the other or an increased liability to the other
under this Agreement and (2) to take any action reasonably requested by the
other that would reasonably be expected to result in a Tax Benefit or avoid a
Tax Detriment to the other, provided that such action does not result in any
additional direct or indirect cost not fully compensated for by the requesting
party. The parties hereby acknowledge that the preceding sentence is a statement
of general principle and is not intended to limit, and
12
therefore shall not apply to, the rights of the parties with respect to matters
otherwise covered by this Agreement.
4.06. Allocation of Tax Assets.
(a) In General. In connection with the Distribution, Deluxe and eFunds
shall cooperate in determining the allocation of any Tax Assets among
Deluxe, each Deluxe Affiliate, eFunds, and each eFunds Affiliate. The
parties hereby agree that in the absence of controlling legal authority or
unless otherwise provided under this Agreement, Tax Assets shall be
allocated to the legal entity that incurred the cost or burden associated
with the creation of such Tax Asset (other than with respect to any Tax
Asset created by reason of a contribution to the capital of eFunds by
Deluxe on or before the Distribution Date, in which case eFunds shall be
permitted to retain such Tax Asset).
(b) Earnings and Profits. Deluxe will advise eFunds in writing of the
decrease in Deluxe earnings and profits attributable to the Distribution
under section 312(h) of the Code (i) not later than September 15, 2001,
with respect to transactions completed on or before December 31, 2000 and
(ii) not later than September 15, 2002 with respect to transactions
completed on or before December 31, 2001; provided, however, that Deluxe
shall provide eFunds with estimates of such amounts (determined in
accordance with past practice) prior to such anniversary as reasonably
requested by eFunds.
Section 5. Stock Options.
5.01. Deduction, Notices, Withholding, Reporting.
(a) To the extent permitted by law, Deluxe (or the appropriate member
of the Deluxe Group) shall claim all Tax deductions arising by reason of
exercises of Options to acquire eFunds stock held by Deluxe Employees. To
the extent permitted by law, eFunds (or the appropriate member of the
eFunds Group) shall claim all Tax deductions arising by reason of exercises
of Options to acquire Deluxe stock held by eFunds Employees.
(b) Deluxe shall, to the extent required by law, withhold applicable
Taxes and satisfy applicable Tax reporting obligations with respect to
exercises of Options to acquire eFunds stock held by Deluxe Employees.
eFunds shall, to the extent required by law, withhold applicable Taxes and
satisfy applicable Tax reporting obligations with respect to exercises of
Options to acquire Deluxe stock held by eFunds Employees.
(c) Deluxe and eFunds shall timely provide to the other party all
information necessary for such party to satisfy its obligations described
in Section 5.01(b) of this Agreement.
13
Section 6. Indemnification
6.01. Generally. The Deluxe Group shall jointly and severally indemnify
eFunds, each eFunds Affiliate, and their respective directors, officers and
employees, and hold them harmless from and against any and all Taxes for which
Deluxe or any Deluxe Affiliate is liable under this Agreement and any loss,
cost, damage or expense, including reasonable attorneys' fees and costs, but
excluding any consequential, special, punitive or exemplary damages, that is
attributable to, or results from the failure of Deluxe, any Deluxe Affiliate or
any of their respective directors, officers or employees to make any payment
required to be made under this Agreement. The eFunds Group shall jointly and
severally indemnify Deluxe, each Deluxe Affiliate, and their respective
directors, officers and employees, and hold them harmless from and against any
and all Taxes for which eFunds or any eFunds Affiliate is liable under this
Agreement and any loss, cost, damage or expense, including reasonable attorneys'
fees and costs, but excluding any consequential, special, punitive or exemplary
damages, that is attributable to, or results from, the failure of eFunds, any
eFunds Affiliate or any of their respective directors, officers or employees to
make any payment required to be made under this Agreement.
6.02. Inaccurate or Incomplete Information. The Deluxe Group shall jointly
and severally indemnify eFunds, each eFunds Affiliate, and their respective
directors, officers and employees, and hold them harmless from and against any
cost, fine, penalty, or other expense of any kind, excluding any consequential,
special, punitive or exemplary damages, that is attribut able to the negligence
of Deluxe or any Deluxe Affiliate in supplying eFunds or any eFunds Affiliate
with inaccurate or incomplete information, in connection with the preparation of
any Tax Return. The eFunds Group shall jointly and severally indemnify Deluxe,
each Deluxe Affiliate, and their respective directors, officers and employees,
and hold them harmless from and against any cost, fine, penalty, or other
expenses of any kind, excluding any consequential, special, punitive or
exemplary damages, that is attributable to the negligence of eFunds or any
eFunds Affiliate in supplying Deluxe or any Deluxe Affiliate with inaccurate or
incomplete information, in connection with the preparation of any Tax Return.
6.03. No Guarantee for Tax Items. Nothing in this Agreement shall be
construed as a guarantee of the existence or amount of any loss, credit,
carryforward, basis or other Tax Item, whether past, present or future, of
Deluxe, any Deluxe Affiliate, eFunds or any eFunds Affiliate.
Section 7. Payments.
7.01. Estimated Tax Payments. As requested by Deluxe, eFunds shall
promptly, but not later than the date immediately preceding each Estimated Tax
Installment Date with respect to a taxable period for which a Consolidated
Return or a Combined Return will be filed, pay to Deluxe on behalf of the eFunds
Group an amount equal to the amount of any estimated Separate Tax Liability that
eFunds would have otherwise been required to pay to a Taxing Authority on such
Estimated Tax Installment Date.
14
7.02. True-Up Payments. Not later than the date of filing of a Tax Return,
eFunds shall pay to Deluxe, or Deluxe shall pay to eFunds or apply as a credit
against future Tax liability, as appropriate, an amount equal to the difference,
if any, between the eFunds Separate Tax Liability and the aggregate amount paid
by eFunds with respect to such period under Section 7.01 of this Agreement.
7.03. Redetermination Amounts. In the event of a redetermination of any Tax
Item reflected on any Tax Return described in Section 2.01(a) of this Agreement
(other than Tax Items relating to Distribution Taxes), as a result of a refund
of Taxes paid, a Final Determination or any settlement or compromise with any
Taxing Authority which may affect eFunds's Separate Tax Liability, Deluxe shall
prepare a revised pro forma Tax Return for the relevant taxable period
reflecting the redetermination of such Tax Item as a result of such refund,
Final Determination, settlement or compromise. eFunds shall pay to Deluxe, or
Deluxe shall pay to eFunds, as appropriate, an amount equal to the difference,
if any, between the Separate Tax Liability based on such revised pro forma Tax
Return and the Separate Tax Liability for such period as origi xxxxx computed
pursuant to this Agreement.
7.04. Payments Under This Agreement. In the event that one party (the
"Owing Party") is required to make a payment to another party (the "Owed Party")
pursuant to this Agreement, then such payments shall be made according to this
Section 7.04.
(a) In General. All payments shall be made to the Owed Party or to the
appropri ate Taxing Authority as specified by the Owed Party within the
time prescribed for payment in this Agreement, or if no period is
prescribed, within twenty (20) days after delivery of written notice of
payment owing together with a computation of the amounts due.
(b) Treatment of Payments. Unless otherwise required by any Final
Determina tion, the parties agree that any payments made by one party to
another party (other than pay ments of interest pursuant to Section 7.04(e)
of this Agreement and payments of After Tax Amounts pursuant to Section
7.04(d) of this Agreement) pursuant to this Agreement shall be treated for
all Tax and financial accounting purposes as nontaxable payments (dividend
distribu tions or capital contributions, as the case may be) made
immediately prior to the Distribution and, accordingly, as not includible
in the taxable income of the recipient or as deductible by the payor.
(c) Prompt Performance. All actions required to be taken by any party
under this Agreement shall be performed within the time prescribed for
performance in this Agreement, or if no period is prescribed, such actions
shall be performed promptly or, with respect to the Tax Services, on a
timely basis.
(d) After Tax Amounts. If pursuant to a Final Determination it is
determined that the receipt or accrual of any payment made under this
Agreement (other than payments of interest pursuant to Section 7.04(e) of
this Agreement) is subject to any Tax, the party making
15
such payment shall be liable for (a) the After Tax Amount with respect to
such payment and (b) interest at the rate described in Section 7.04(e) of
this Agreement on the amount of such After Tax Amount from the date such
After Tax Amount is due under this Agreement through the date of payment of
such After Tax Amount. A party making a demand for a payment pursuant to
this Agreement and for a payment of an After Tax Amount with respect to
such payment shall separately specify and compute such After Tax Amount.
However, a party may choose not to specify an After Tax Amount in a demand
for payment pursuant to this Agreement without thereby being deemed to have
waived its right subsequently to demand an After Tax Amount with respect to
such payment.
(e) Interest. Payments pursuant to this Agreement that are not made
within the period prescribed in this Agreement (the "Payment Period") and
were not otherwise setoff against amounts owed by one party to the other
party as provided in Section 9.16 of this Agreement shall bear interest for
the period from and including the date immediately following the last date
of the Payment Period through and including the date of payment at a per
annum rate equal to the prime rate as published in The Wall Street Journal
on the last day of such Payment Period, plus two and one-half percent (2
1/2%). Such interest will be payable at the same time as the payment to
which it relates and shall be calculated on the basis of a year of 365 days
and the actual number of days for which due.
Section 8. Tax Proceedings.
8.01. In General. Except as otherwise provided in this Agreement, the party
responsible for preparing and filing a Tax Return pursuant to Section 2 of this
Agreement (the "Filing Party") shall have the exclusive right, in its sole
discretion, to control, contest, and represent the interests of Deluxe, any
Deluxe Affiliate, eFunds, and any eFunds Affiliate in any Audit relating to such
Tax Return and to resolve, settle or agree to any deficiency, claim or
adjustment proposed, asserted or assessed in connection with or as a result of
any such Audit. The Filing Party's rights shall extend to any matter pertaining
to the management and control of an Audit, including execution of waivers,
choice of forum, scheduling of conferences and the resolution of any Tax Item.
Any costs incurred in handling, settling, or contesting an Audit shall be borne
by the Filing Party.
8.02. Participation of non-Filing Party. Except as otherwise provided in
this Agreement, the non-Filing Party shall have the right to assume control over
decisions to resolve, settle or otherwise agree to any deficiency, claim or
adjustment: (i) with respect to any Sole Responsibil ity Item for which the
non-Filing Party's responsibility under this Agreement could exceed one hundred
thousand dollars ($100,000), upon delivery to the Filing Party of a written
opinion of a nationally recognized law or accounting firm chosen by the parties
substantially to the effect that the non-Filing Party's position with respect to
such deficiency, claim, or adjustment should be upheld on appeal; and (ii) with
respect to any Sole Responsibility Item for which the non-Filing Party's
responsibility under this Agreement could exceed two hundred and fifty thousand
dollars ($250,000), upon delivery to the Filing Party of a written opinion of a
nationally recognized law
16
or accounting firm chosen by the parties substantially to the effect that the
non-Filing Party's position with respect to such deficiency, claim, or
adjustment is more likely than not to be upheld on appeal. The Filing Party and
the non-Filing Party shall have joint control over decisions to resolve, settle
or otherwise agree to any deficiency, claim or adjustment with respect to any
Joint Responsibility Item. The Filing Party shall not settle any Audit they
control concerning a Tax Item of an Interim Period on a basis that would
materially adversely affect the non-Filing Party without obtaining such
non-Filing Party's consent, which consent shall not be unreasonably withheld if
failure to consent would adversely affect the Filing Party.
8.03. Notice. Within ten (10) days after a party receives a written notice
from a Taxing Authority of a proposed adjustment to a Tax Item that would
reasonably be expected to give rise to an indemnification obligation or other
liability (including a liability for Tax) under this Agreement, such party shall
notify the other party of such proposed adjustment, and thereafter shall
promptly forward to the other party copies of notices and material
communications with any Taxing Authority relating to such proposed adjustment;
provided, however, that the failure to provide such notice shall not release the
indemnifying party from any of its obligations under this Agreement except to
the extent that such indemnifying party is materially prejudiced by such
failure.
8.04. Control of Distribution Tax Proceedings.
(a) Subject to the provisions of Section 8.04(b) of this Agreement,
Deluxe shall have the exclusive right, in its sole discretion, to control,
contest, and represent the interests of Deluxe, any Deluxe Affiliate,
eFunds, and any eFunds Affiliate in any Audits relating to Distribution
Taxes and to resolve, settle or agree to any deficiency, claim or
adjustment proposed, asserted or assessed in connection with or as a result
of any such Audit. Deluxe's rights shall extend to any matter pertaining to
the management and control of such Audit, including execution of waivers,
choice of forum, scheduling of conferences and the resolution of any Tax
Item.
(b) Notwithstanding the provisions of Section 8.04(a) of this
Agreement, eFunds shall have the exclusive right, in its sole discretion,
to control, contest, and represent the interests of Deluxe, any Deluxe
Affiliate, eFunds, and any eFunds Affiliate in any Audits relating to
Distribution Taxes and to resolve, settle or agree to any deficiency, claim
or adjustment proposed, asserted or assessed in connection with or as a
result of any such Audit, if it (i) acknowledges in writing that it has
sole liability for any Distribution Taxes that might arise in such Audit,
(ii) demonstrates to the satisfaction of Deluxe by clear and convincing
evidence that it has the financial ability to discharge all liabilities
arising from or related to any Distribution Taxes that may arise in such
Audit, and (iii) acknowledges in writing that it will forego any right to
challenge their liability under this Agreement for such Distribution Taxes.
17
(c) If Deluxe and eFunds are unable to agree as to who would have
liability for Distribution Taxes as a result of an Audit relating to
Distribution Taxes, then Deluxe shall permit eFunds to jointly defend any
such Audit.
Section 9. Miscellaneous Provisions.
9.01. Effectiveness. This Agreement shall be effective as of April 1, 2000.
9.02. Cooperation and Exchange of Information.
(a) Cooperation. eFunds and Deluxe shall each cooperate fully (and
each shall cause its respective affiliates to cooperate fully) with all
reasonable requests from another party in connection with the preparation
and filing of Tax Returns, claims for refund, and Audits concerning issues
or other matters covered by this Agreement. Such cooperation shall include,
without limitation:
(i) the retention until the expiration of the applicable statute
of limitations, and the provision upon request, of Tax Returns, books,
records (including information regarding ownership and Tax basis of
property), documentation and other information relating to the Tax
Returns, including accompanying schedules, related work papers, and
documents relating to rulings or other determinations by Taxing
Authorities;
(ii) the execution of any document that may be necessary or
reasonably helpful in connection with any Audit, or the filing of a
Tax Return or refund claim by a member of the Deluxe Group or the
eFunds Group, including certification, to the best of a party's
knowledge, of the accuracy and completeness of the information it has
supplied; and
(iii) the use of the party's best efforts to obtain any
documentation that may be necessary or reasonably helpful in
connection with any of the foregoing. Each party shall make its
employees and facilities available on a reasonable and mutually
convenient basis in connection with the foregoing matters.
(b) Failure to Perform. If a party fails to comply with any of its
obligations set forth in Section 9.02(a) of this Agreement upon reasonable
request and notice by the other party, and such failure results in the
imposition of additional Taxes, the nonperforming party shall be liable in
full for such additional Taxes.
(c) Retention of Records. A party intending to dispose of
documentation of Deluxe (or any Deluxe Affiliate) or eFunds (or any eFunds
Affiliate), including without limitation, books, records, Tax Returns and
all supporting schedules and information relating thereto (after the
expiration of the applicable statute of limitations), shall provide written
notice to the other party describing the documentation to be destroyed or
disposed of sixty (60) business
18
days prior to taking such action. The other party may arrange to take
delivery of the documenta tion described in the notice at its expense
during the succeeding sixty (60) day period.
9.03. Dispute Resolution. In the event that Deluxe and eFunds disagree as
to the amount or calculation of any payment to be made under this Agreement, or
the interpretation or application of any provision under this Agreement, the
parties shall attempt in good faith to resolve such dispute. If such dispute is
not resolved within sixty (60) business days following the commencement of the
dispute, Deluxe and eFunds shall jointly retain a nationally recognized law or
accounting firm, which firm is independent of both parties (the "Independent
Firm"), to resolve the dispute; provided, however, that in order to pursue any
such dispute resolution under this Section 9.03, the Owing Party must either (i)
first pay to the Owed Party, or place in an escrow reasonably satisfactory to
the Owed Party pending resolution of such dispute, an amount equal to the
payment which is the subject of such dispute, or (ii) deliver to the Owed Party
a written opinion of a nationally recognized law or accounting firm chosen by
the parties substan tially to the effect that with respect to such dispute the
Owing Party is more likely than not to prevail in its entirety in the dispute
resolution proceeding. The Independent Firm shall act as an arbitrator to
resolve all points of disagreement and its decision shall be final and binding
upon all parties involved. Following the decision of the Independent Firm,
Deluxe and eFunds shall each take or cause to be taken any action necessary to
implement the decision of the Independent Firm. The fees and expenses relating
to the Independent Firm shall be borne equally by Deluxe and eFunds; provided,
however, that the Independent Firm shall be entitled, in its sole discretion, to
allocate such fees and expenses otherwise between the parties. Notwithstanding
anything in this Agreement to the contrary, the dispute resolution provisions
set forth in this Section 9.03 shall not be applicable to any disagreement
between Deluxe and eFunds relating to Distribution Taxes.
9.04. Notices. Any notice, request, instruction or other document to be
given or delivered under this Agreement by any party to another party shall be
in writing and shall be deemed to have been duly given or delivered when (1)
delivered in person or sent by telecopy to the facsimile number indicated below
with a required confirmation copy sent in accordance with clause (2) below, (2)
deposited in the United States mail, postage prepaid and sent certified mail,
return receipt requested or (3) delivered to Federal Express or similar service
for overnight delivery to the address of the party set forth below:
If to Deluxe or any Deluxe Affiliate to:
Deluxe Corporation
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
19
Deluxe Corporation
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Director of Corporate Tax
Facsimile: (000) 000-0000
If to eFunds or any eFunds Affiliate to:
eFunds Corporation
c/o Deluxe Corporation
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
eFunds Corporation
000 Xxxx Xxxxxx Xxxxxxx
P.O. Box 12536
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
Either party may, by written notice to the other parties, change the address or
the party to which any notice, request, instruction or other document is to be
delivered.
9.05. Changes in Law.
(a) Any reference to a provision of the Code or a law of another
jurisdiction shall include a reference to any applicable successor
provision or law.
(b) If, due to any change in applicable law or regulations or their
interpretation by any court of law or other governing body having
jurisdiction subsequent to the date of this Agreement, performance of any
provision of this Agreement or any transaction contemplated thereby shall
become impracticable or impossible, the parties hereto shall use their
commercially reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by
such provision.
9.06. Confidentiality. Each party shall hold and cause its directors,
officers, employees, advisors and consultants to hold in strict confidence,
unless compelled to disclose by judicial or administrative process or, in the
opinion of its counsel, by other requirements of law, all information (other
than any such information relating solely to the business or affairs of such
20
party) concerning the other parties hereto furnished it by such other party or
its representatives pursuant to this Agreement (except to the extent that such
information can be shown to have been (1) in the public domain through no fault
of such party, (2) later lawfully acquired from other sources not known to be
under a duty of confidentiality by the party to which it was furnished, or (3)
independently developed), and each party shall not release or disclose such
information to any other person, except its directors, officers, employees,
auditors, attorneys, financial advisors, bankers and other consultants who shall
be advised of and agree to be bound by the provisions of this Section 9.06. Each
party shall be deemed to have satisfied its obligation to hold confidential
information concerning or supplied by the other party if it exercises the same
care as it takes to preserve confidentiality for its own similar information.
9.07. Successors. This Agreement shall be binding on and inure to the
benefit and detriment of any successor, by merger, acquisition of assets or
otherwise, to any of the parties hereto, to the same extent as if such successor
had been an original party.
9.08. Affiliates. Deluxe shall cause to be performed, and hereby guarantees
the performance of, all actions, agreements and obligations set forth herein to
be performed by any Deluxe Affiliate, and eFunds shall cause to be performed,
and hereby guarantees the performance of, all actions, agreements and
obligations set forth herein to be performed by any eFunds Affiliate; provided,
however, that (1) if it is contemplated that an eFunds Affiliate may cease to be
an eFunds Affiliate as a result of a transfer of its stock or other ownership
interests to a third party in exchange for consideration in an amount
approximately equal to the fair market value of the stock or other ownership
interests transferred and such consideration is not distributed outside of the
eFunds Group to the shareholders of eFunds then eFunds may request in writing no
later than thirty (30) days prior to such cessation that Deluxe execute a
release of such eFunds Affiliate from its obligations under this Agreement
effective as of such transfer and Deluxe shall promptly execute and deliver such
release to eFunds provided that eFunds shall have confirmed in writing its
obligations and the obligations of its remaining eFunds Affiliates with respect
to their own obligations and those of the departing eFunds Affiliate and that
such departing eFunds Affiliate shall have executed a release of any rights it
may have against Deluxe or any Deluxe Affiliate by reason of this Agreement, and
(2) if it is contemplated that a Deluxe Affiliate may cease to be a Deluxe
Affiliate as a result of a transfer of its stock or other ownership interests to
a third party in exchange for consideration in an amount approximately equal to
the fair market value of the stock or other ownership interests transferred and
such consideration is not distrib uted outside of the Deluxe Group to the
shareholders of Deluxe then Deluxe may request in writing no later than thirty
(30) days prior to such cessation that eFunds execute a release of such Deluxe
Affiliate from its obligations under this Agreement effective as of such
transfer and eFunds shall promptly execute and deliver such release to Deluxe
provided that Deluxe shall have confirmed in writing its obligations and the
obligations of its remaining Deluxe Affiliates with respect to their own
obligations and the obligations of the departing Deluxe Affiliate and that such
departing Deluxe Affiliate shall have executed a release of any rights it may
have against eFunds or any eFunds Affiliate by reason of this Agreement. The
requested party hereunder shall not unreasonably withhold the provision of any
such release.
21
9.09. Authorization, Etc. Each of the parties hereto hereby represents and
warrants that it has the power and authority to execute, deliver and perform
this Agreement, that this Agreement has been duly authorized by all necessary
corporate action on the part of such party, that this Agreement constitutes a
legal, valid and binding obligation of each such party and that the execution,
delivery and performance of this Agreement by such party does not contravene or
conflict with any provision of law or of its charter or bylaws or any agreement,
instrument or order binding on such party.
9.10. Entire Agreement. This Agreement contains the entire agreement among
the parties hereto with respect to the subject matter hereof and supersedes any
prior tax sharing agreements between Deluxe (or any Deluxe Affiliate) and eFunds
(or any eFunds Affiliate) and such prior tax sharing agreements shall have no
further force and effect.
9.11. Applicable Law; Jurisdiction. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
without giving effect to laws and principles relating to conflicts of law.
9.12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
9.13. Severability. If any term, provision, covenant, or restriction of
this Agreement is held by a court of competent jurisdiction (or an arbitrator or
arbitration panel) to be invalid, void, or unenforceable, the remainder of the
terms, provisions, covenants, and restrictions set forth herein shall remain in
full force and effect, and shall in no way be affected, impaired, or
invalidated. In the event that any such term, provision, covenant or restriction
is held to be invalid, void or unenforceable, the parties hereto shall use their
best efforts to find and employ an alternate means to achieve the same or
substantially the same result as that contemplated by such terms, provisions,
covenant, or restriction.
9.14. No Third Party Beneficiaries. This Agreement is solely for the
benefit of Deluxe, the Deluxe Affiliates, eFunds and the eFunds Affiliates. This
Agreement should not be deemed to confer upon third parties any remedy, claim,
liability, reimbursement, cause of action or other rights in excess of those
existing without this Agreement.
9.15. Waivers, Etc. No failure or delay on the part of the parties in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such right or power, preclude
any other or further exercise thereof or the exercise of any other right or
power. No modification or waiver of any provision of this Agreement nor consent
to any departure by the parties therefrom shall in any event be effective unless
the same shall be in writing, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given.
22
9.16. Setoff. All payments to be made by any party under this Agreement may
be netted against payments due to such party under this Agreement, but otherwise
shall be made without setoff, counterclaim or withholding, all of which are
hereby expressly waived.
9.17. Other Remedies. eFunds recognizes that (1) any act, failure to act,
or omission specified in Section 4.01(b)(i)-(ii) of this Agreement of or by
eFunds or any eFunds Affiliate or (2) the occurrence of any event specified in
Section 4.01(b)(iii)-(iv) of this Agreement, may result in Distribution Taxes
which could cause irreparable harm to Deluxe, Deluxe Affiliates and their
stockholders, and that such persons may be inadequately compensated by monetary
damages for such act, failure to act, omission, or event. Accordingly, neither
eFunds nor any eFunds Affiliate shall permit (1) any act, failure to act, or
omission specified in Section 4.01(b)(i)-(ii) of this Agreement or (2) the
occurrence of any event specified in Section 4.01(b)(iii)-(iv) of this
Agreement, that could be reasonably foreseeable to result in any Distribu tion
Taxes, and Deluxe and each Deluxe Affiliate shall be entitled to injunctive
relief, in addition to all other remedies, in order to prevent any such act,
failure to act, omission, or occurrence.
23
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed by a duly authorized officer on ____________, 2000, but effective as
of the date first above written.
DELUXE CORPORATION
on behalf of itself and the Deluxe Affiliates
By
-------------------------------------------
Name:
Title:
EFUNDS CORPORATION
on behalf of itself and the eFunds Affiliates
By
-------------------------------------------
Name:
Title:
24
Schedule 2.05(a)
TAX SERVICES
DESCRIPTION TIMING AMOUNT
----------- ------ ------
Federal Income Tax Compliance Services Monthly 4,000
International Tax Compliance Services Monthly 6,000
State and Local Income & Franchise Tax Compliance Services Monthly 4,000
State and Local Sales & Use, Property Tax Compliance Services Monthly 2,500
Other Compliance Services (escheat, licenses, excise, etc.) Monthly 500
Federal Audit Management Services Monthly 3,500
State and Local Income & Franchise Tax Audit Mgmt Services Monthly 1,000
State and Local Sales & Use, Property Tax Audit Mgmt Services Monthly 1,000
Federal Tax Planning & Consulting Services Monthly 4,000
International Tax Planning and Consulting Services Monthly 6,000
State and Local Income & Franchise Tax Planning and Consulting Services Monthly 2,000
State and Local Sales & Use, Property Tax Planning and Consulting Services Monthly 2,000
Other Tax & Business Planning Services Monthly 1,000
Special Tax Services - Merger, Acquisition & Divestiture Tax Planning As requested Additional as negotiated
Special Tax Services - Compensation and Payroll Tax Consulting As requested Additional as negotiated
Special Tax Services - Other As requested Additional as negotiated
Overhead / Facility Monthly 0
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37,500
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