Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of March 31,
2000 by and between Deluxe Corporation, a Minnesota corporation ("Deluxe"), and
eFunds Corporation, a Delaware corporation and wholly owned subsidiary of Deluxe
("eFunds").
RECITALS
WHEREAS, Deluxe has owned and operated the businesses and operations
related to eFunds;
WHEREAS, Deluxe beneficially owns all of the shares of the issued and
outstanding common stock, par value $0.01 per share, of eFunds (the "eFunds
Common Stock");
WHEREAS, eFunds proposes to issue shares of its Common Stock in an
initial public offering registered under the Securities Act of 1933, as amended;
WHEREAS, Deluxe and eFunds currently contemplate that, several months
following such initial public offering, Deluxe will distribute to the holders of
its common stock, by means of an exchange offer and/or a pro rata distribution,
all of the shares of eFunds common stock owned by Deluxe (the "Distribution");
WHEREAS, the parties desire to enter into this Agreement to set forth
their agreement regarding certain registration rights with respect to eFunds
Common Stock (and any other securities issued in respect thereof or in exchange
therefor).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Deluxe and eFunds, for themselves,
their successors, and assigns, hereby agree as follows:
Capitalized terms not otherwise defined herein have the meaning given
to them in the IPO and Distribution Agreement dated March 31, 2000 between
Deluxe and eFunds.
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. As used in this Agreement, the following
terms will have the following meanings, applicable both to the singular and the
plural forms of the terms described:
"Affiliates" means, with respect to any specified Person, any Person
that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with such specified Person; provided,
however, that for purposes of this Agreement, (i) Deluxe and its Subsidiaries
(other than eFunds and its Subsidiaries) shall not be considered Affiliates of
eFunds and (ii) eFunds and its Subsidiaries shall not be considered Affiliates
of Deluxe.
"Agreement" has the meaning ascribed thereto in the Preamble.
"Applicable Stock" means at any time the (i) shares of eFunds Common
Stock owned by Deluxe and its Affiliates that were owned on the date hereof,
PLUS (ii) shares of eFunds Voting Stock purchased by Deluxe and its Affiliates
pursuant to Article VI of the Initial Public Offering and Distribution
Agreement, PLUS (iii) shares of eFunds Voting Stock that were issued to Deluxe
and its Affiliates in respect of shares described in either clause (i) or clause
(ii) in any reclassification, share combination, share subdivision, share
dividend, share exchange, merger, consolidation or similar transaction or event.
"Company Securities" has the meaning ascribed thereto in Section
2.02(b).
"Deluxe" has the meaning ascribed thereto in the Preamble.
"Deluxe Group" means Deluxe and its Affiliates and eFunds and its
Affiliates.
"Deluxe Transferee" means a Transferee of Registrable Securities from
Deluxe or any of its Affiliates.
"Disadvantageous Condition" has the meaning ascribed thereto in Section
2.01(a).
"eFunds" has the meaning ascribed thereto in the Preamble.
"eFunds Voting Stock" means the common stock, par value $0.01 per share
of eFunds and any other class of eFunds's capital stock representing the right
to vote generally for the election of directors.
"Holder" means Deluxe, its Affiliates and any Transferee.
"Holder Securities" has the meaning ascribed thereto in Section
2.02(b).
"IPO" means the initial public offering by eFunds of shares of eFunds
Common Stock as contemplated by the IPO Registration Statement.
"IPO and Distribution Agreement" means the Initial Public Offering and
Distribution Agreement dated as of the date hereof between Deluxe and eFunds.
"IPO Date" means the date of completion of the initial sale of eFunds
Common Stock in the IPO.
"Other Holders" has the meaning ascribed thereto in Section 2.02(c).
"Other Securities" has the meaning ascribed thereto in Section 2.02.
"Person" means any individual, corporation, limited or general
partnership, limited liability company, joint venture association, joint stock
company, trust unincorporated organization or government or any agency or
political subdivision thereof.
"Registrable Securities" means shares of eFunds Voting Stock and any
stock or other securities into which or for which such eFunds Voting Stock may
hereafter be changed, converted or exchanged and any other shares or securities
issued to Holders of such eFunds Voting Stock (or such shares or other
securities into which or for which such shares are so changed, converted or
exchanged) upon any reclassification, share combination, share subdivision,
share dividend, share exchange, merger, consolidation or similar transaction or
event or pursuant to the eFunds Nonvoting Stock Option. As to any particular
Registrable Securities, such Registrable Securities shall cease to be
Registrable Securities when (i) a registration statement with respect to the
sale by the Holder thereof shall have been declared effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (ii) they shall have been distributed to the
public in accordance with Rule 144, (iii) they shall have been otherwise
transferred, new certificates for them not bearing a legend restricting further
transfer shall have been delivered by eFunds and subsequent disposition of them
shall not require registration or qualification of them under the Securities Act
or any state securities or blue sky law then in effect or (iv) they shall have
ceased to be outstanding.
"Registration Expenses" means any and all reasonable expenses incident
to performance of or compliance with any registration of securities pursuant to
Article II, including, without limitation, (i) all expenses, including filing
fees, in connection with the preparation, printing and filing of the
registration statement, any preliminary prospectus or final prospectus, any
other offering document and amendments and supplements thereto and the mailing
and delivering of copies thereof to any underwriters and dealers; (ii) the cost
of printing or producing any agreements among underwriters, underwriting
agreements, and blue sky or legal investment memoranda, any selling agreements
and any other documents in connection with the offering, sale or delivery of the
securities to be disposed of; (iii) all expenses in connection with the
qualification of the securities to be disposed of for offering and sale under
state securities laws, including the fees and disbursements of counsel for the
underwriters of securities in connection with such qualification and in
connection with any blue sky and legal investment surveys; (iv) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the securities to be
disposed of; (v) transfer agents' and registrars' fees and expenses and the fees
and expenses of any other agent or trustee appointed in connection with such
offering; (vi) all security engraving and security printing expenses; (vii) all
fees and expenses payable in connection with the listing of the securities on
any securities exchange or automated interdealer quotation system or the rating
of such securities and (ix) any other fees and disbursements of underwriters
customarily paid by issuers of securities.
"Rule 144" means Rule 144 (or any successor rule to similar effect)
promulgated under the Securities Act.
"Rule 415 Offering" means an offering on a delayed or continuous basis
pursuant to Rule 415 (or any successor rule to similar effect) promulgated under
the Securities Act.
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, together with the rules and regulations promulgated thereunder.
"Selling Holder" has the meaning ascribed thereto in Section 2.04(e).
"Subsidiary" means with respect to any Person, any other Person a
majority of the equity ownership or voting stock of which is at the time owned,
directly or indirectly, by such Person and/or one or more other Subsidiaries of
such Person; provided, however, that unless the context otherwise requires,
prior to the Distribution, a Subsidiary of Deluxe shall only include Persons who
would be a Subsidiary of Deluxe assuming the Distribution has occurred
immediately prior to the determination as to whether such Person were a
Subsidiary of Deluxe.
"Transferee" has the meaning ascribed thereto in Section 2.09.
Section 1.02. Internal References. Unless the context indicates
otherwise, references to Articles, Sections and paragraphs shall refer to the
corresponding articles, sections and paragraphs in this Agreement and references
to the parties shall mean the parties to this Agreement.
ARTICLE II
REGISTRATION RIGHTS
Section 2.01. Effective Date. Neither Deluxe nor any Holder shall have
any right to exercise its rights under Section 2.02 or 2.03 hereof unless and
until such time as Deluxe shall have delivered to eFunds an Abandonment Notice
pursuant to Section 2.08 of the IPO and Distribution Agreement.
Section 2.02. Demand Registration - Registrable Securities.
(a) Upon written notice provided at any time after the IPO
Date from any Holder of Registrable Securities requesting that eFunds
effect the registration under the Securities Act of any or all of the
Registrable Securities held by such Holder, which notice shall specify
the intended method or methods of disposition of such Registrable
Securities, eFunds shall use its reasonable best efforts to effect the
registration under the Securities Act and applicable state securities
laws of such Registrable Securities for disposition in accordance with
the intended method or methods of disposition stated in such request
(including in a Rule 415 offering, if eFunds is then eligible to
register such Registrable Securities on Form S-3 (or a successor form)
for such offering); provided, that:
(i) with respect to any registration statement filed,
or to be filed, pursuant to this Section 2.02, if eFunds shall
furnish to the Holders of Registrable Securities that have
made such request a certified resolution of the Board of
Directors of eFunds (adopted by the affirmative vote of a
majority of the directors not designated by Deluxe or its
Affiliates) stating that in the Board of Directors' good faith
judgment it would (because of the existence of, or in
anticipation of, any acquisition or financing activity, or the
unavailability for reasons beyond eFunds' reasonable control
of any required financial statements, or any other event or
condition of similar significance to eFunds) be significantly
disadvantageous (a "Disadvantageous Condition") to eFunds for
such a registration statement to be maintained effective, or
to be filed and become effective, and setting forth the
general reasons for such judgment, eFunds shall be entitled to
cause such registration statement to be withdrawn and the
effectiveness of such registration statement terminated, or,
in the event no registration statement has yet been filed,
shall be entitled not to file any such registration statement,
until such Disadvantageous Condition no longer exists (notice
of which eFunds shall promptly deliver to such Holders). Upon
receipt of any such notice of a Disadvantageous Condition,
such Holders shall forthwith discontinue use of the prospectus
contained in such registration statement and, if so directed
by eFunds, each such Holder will deliver to eFunds all copies,
other than permanent file copies then in such Holder's
possession, of the prospectus then covering such Registrable
Securities current at the time of receipt of such notice;
provided, that the filing of any such registration statement
may not be delayed for a period in excess of 90 days due to
the occurrence of any particular Disadvantageous Condition;
(ii) after any event which results in Deluxe and its
Subsidiaries owning, in the aggregate, less than 45% of the
total combined voting power of all classes of eFunds Voting
Stock, the Holders of Registrable Securities may collectively
exercise their rights under this Section 2.02 on not more than
three occasions (it being acknowledged that prior to any such
event, there shall be no limit to the number of occasions on
which such Holders may exercise such rights; and
(iii) The Holders of Registrable Securities shall not
have the right to exercise registration rights pursuant to
this Section 2.02 within the 180-day period following the
registration and sale of Registrable Securities effected
pursuant to a prior exercise of the registration rights
provided in this Section 2.02.
(b) Notwithstanding any other provision of this Agreement to
the contrary, a registration requested by a Holder of Registrable
Securities pursuant to this Section 2.02 shall not be deemed to have
been effected (and, therefore, not requested for purposes of paragraph
(a) above), (i) unless it has become effective, (ii) if after it has
become effective such registration is interfered with by any stop
order, injunction or other order or requirement of the SEC or other
governmental agency or court for any reason other than a
misrepresentation or an omission by such Holder and, as a result
thereof, the Registrable Securities requested to be registered cannot
be completely distributed in accordance with the plan of distribution
set forth in the related registration statement or (iii) if the
conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such
registration are not satisfied or waived other than by reason of some
act or omission by such Holder of Registrable Securities.
(c) In the event that any registration pursuant to this
Section 2.02 shall involve, in whole or in part, an underwritten
offering, the Holders of a majority of the Registrable Securities to be
registered shall have the right to designate an underwriter or
underwriters as the lead or managing underwriters of such underwritten
offering reasonably acceptable to eFunds and, in connection with each
registration pursuant to this Section 2.02, such Holders may select one
counsel to represent all such Holders.
(d) eFunds shall have the right to cause the registration of
additional equity securities for sale for the account of any Person
(including, without limitation, eFunds, and any existing or former
directors, officers or employees of eFunds and its Affiliates) in any
registration of Registrable Securities requested by the Holders
pursuant to paragraph (a) above; provided, however, that if such
Holders are advised in writing (with a copy to eFunds) by a nationally
recognized investment banking firm selected by such Holders reasonably
acceptable to eFunds (which shall be the lead underwriter or a managing
underwriter in the case of an underwritten offering) that, in such
firm's good faith view, all or a part of such additional equity
securities cannot be sold or the inclusion of such additional equity
securities in such registration would be likely to have an adverse
effect on the price, timing or distribution of the offering and sale of
the Registrable Securities then contemplated by any Holder, the
registration of such additional equity securities or part thereof shall
not be permitted. The Holders of the Registrable Securities to be
offered may require that any such additional equity securities be
included in the offering proposed by such Holders on the same
conditions as the Registrable Securities that are included therein. In
the event that the number of Registrable Securities requested to be
included in a registration statement by the Holders thereof exceeds the
number which, in the good faith view of such investment banking firm,
can be sold without adversely affecting the price, timing, distribution
or sale of securities in the offering, the number shall be allocated
pro rata among the requesting Holders on the basis of the relative
number of Registrable Securities then held by each such Holder
(provided that any number in excess of a Holder's request may be
reallocated among the remaining requesting Holders in a like manner).
Section 2.03. Piggyback Registration. In the event that eFunds at any
time after the IPO Date proposes to register any of its eFunds Common Stock, any
other of its equity securities or securities convertible into or exchangeable
for its equity securities (collectively, including eFunds Common Stock, "Other
Securities") under the Securities Act, whether or not for sale for its own
account, in a manner that would permit registration of Registrable Securities
for sale for cash to the public under the Securities Act, it shall at each such
time give prompt written notice to each Holder of Registrable Securities of its
intention to do so and of the rights of such Holder
under this Section 2.03. Subject to the terms and conditions hereof, such notice
shall offer each such Holder the opportunity to include in such registration
statement such number of Registrable Securities as such Holder may request. Upon
the written request of any such Holder made within 15 days after the receipt of
eFunds notice (which request shall specify the number of Registrable Securities
intended to be disposed of and the intended method of disposition thereof),
eFunds shall use its reasonable best efforts to effect, in connection with the
registration of the Other Securities, the registration under the Securities Act
of all Registrable Securities which eFunds has been so requested to register, to
the extent required to permit the disposition (in accordance with such intended
method of disposition thereof) of the Registrable Securities so requested to be
registered; provided, that:
(a) if, at any time after giving such written notice of its
intention to register any Other Securities and prior to the effective
date of the registration statement filed in connection with such
registration, eFunds shall determine for any reason not to register the
Other Securities, eFunds may, at its election, give written notice of
such determination to such Holders and thereupon eFunds shall be
relieved of its obligation to register such Registrable Securities in
connection with the registration of such Other Securities, without
prejudice, however, to the rights of the Holders of Registrable
Securities immediately to request that such registration be effected as
a registration under Section 2.02 to the extent permitted thereunder;
(b) if the registration referred to in the first sentence of
this Section 2.03 is to be an underwritten registration on behalf of
eFunds, and a nationally recognized investment banking firm selected by
eFunds advises eFunds in writing that, in such firm's good faith view,
the inclusion of all or a part of such Registrable Securities in such
registration would be likely to have an adverse effect upon the price,
timing or distribution of the offering and sale of the Other Securities
then contemplated, eFunds shall include in such registration: (i)
first, all Other Securities eFunds proposes to sell for its own account
("Company Securities"); (ii) second, up to the full number of
Registrable Securities held by Holders constituting Deluxe and its
Affiliates that are requested to be included in such registration
(Registrable Securities that are so held being sometimes referred to
herein as "Holder Securities") in excess of the number of Company
Securities to be sold in such offering which, in the good faith view of
such investment banking firm, can be sold without adversely affecting
such offering and the sale of the other Securities then contemplated
(and (x) if such number is less than the full number of such Holder
Securities, such number shall be allocated by Deluxe among Deluxe and
its Affiliates and (y) in the event that such investment banking firm
advises that less than all of such Holder Securities may be included in
such offering, Deluxe and its Affiliates may withdraw their request for
registration of their Registrable Securities under this Section 2.03
and 90 days subsequent to the effective date of the registration
statement for the registration of such Other Securities request that
such registration be effected as a registration under Section 2.02 to
the extent permitted thereunder); (iii) third, up to the full number of
Registrable Securities held by Holders (other than Deluxe and its
Affiliates) of Registrable Securities that are requested to be included
in such registration in excess of the number of Company Securities and
Holder Securities to be sold in such
offering which, in the good faith view of such investment banking firm,
can be so sold without so adversely affecting such offering (and if
such number is less than the full number of such Registrable
Securities, such number shall be allocated pro rata among such Holders
on the basis of the number of Registrable Securities requested to be
included therein by each such Holder and (y) in the event that such
investment banking firm advises that less than all of such Registrable
Securities may be included in such offering, such Holders may withdraw
their request for registration of their Registrable Securities under
this Section 2.03 and 90 days subsequent to the effective date of the
registration statement for the registration of such other Securities
request that such registration be effected as a registration under
Section 2.02 to the extent permitted thereunder); and (iv) fourth, up
to the full number of the Other Securities (other than Company
Securities), if any, in excess of the number of Company Securities and
Registrable Securities to be sold in such offering which, in the good
faith view of such investment banking firm, can be so sold without so
adversely affecting such offering (and, if such number is less than the
full number of such Other Securities, such number shall be allocated
pro rata among the holders of such Other Securities (other than Company
Securities) on the basis of the number of securities requested to be
included therein by each such holder);
(c) if the registration referred to in the first sentence of
this Section 2.03 is to be an underwritten secondary registration on
behalf of holders of Other Securities (the "Other Holders"), and the
lead underwriter or managing underwriter advises eFunds in writing that
in their good faith view, all or a part of such additional securities
cannot be sold and the inclusion of such additional securities in such
registration would be likely to have an adverse effect on the price,
timing or distribution of the offering and sale of the Other Securities
then contemplated, eFunds shall include in such registration the number
of securities (including Registrable Securities) that such underwriters
advise can be so sold without adversely affecting such offering,
allocated pro rata among the Other Holders and the Holders of
Registrable Securities on the basis of the number of securities
(including Registrable Securities) requested to be included therein by
each Other Holder and each Holder of Registrable Securities; provided
that if such registration statement is to be filed at any time after an
event which results in Deluxe and its Subsidiaries owning, in the
aggregate, less than 45% of the total combined voting power of all
classes of eFunds Voting Stock, if any, and if such Other Holders have
requested that such registration statement be filed pursuant to demand
registration rights granted to them by eFunds, eFunds shall include in
such registration: (i) Other Securities sought to be included therein
by the Other Holders pursuant to the exercise of such demand
registration rights; (ii) the number of Holder Securities sought to be
included in such registration in excess of the number of other
Securities sought to be included in such registration by the Other
Holders which in the good faith view of such investment banking firm,
can be so sold without so adversely affecting such offering (and (x) if
such number is less than the full number of such Holder Securities,
such number shall be allocated by Deluxe among Deluxe and its
Affiliates and (y) in the event that such investment banking firm
advises that less than all of such Holder Securities may be included in
such offering, Deluxe and its Affiliates may withdraw their request for
registration of their Registrable Securities under this Section 2.03
and 90 days subsequent to the effective date of the registration
statement for the registration of such Other Securities request that
such registration be effected as a registration under Section 2.02 to
the extent permitted thereunder); and (iii) the number of Registrable
Securities sought to be included in such registration by Holders (other
than Deluxe and its Affiliates) of Registrable securities in excess of
the number of Other Securities and the number of Holder Securities
sought to be included in such registration which, in the good faith
view of such investment banking firm, can be so sold without so
adversely affecting such offering (and (x) if such number is less than
the full number of such Registrable Securities, such number shall be
allocated pro rata among such Holders on the basis of the number of
Registrable Securities requested to be included therein by each such
Holder and (y) in the event that such investment banking firm advises
that less than all of such Registrable Securities may be included in
such offering, such Holders may withdraw their request for registration
of their Registrable Securities under this Section 2.03 and 90 days
subsequent to the effective date of the registration statement for the
registration of such Other Securities request that such registration be
effected as a registration under Section 2.02 to the extent permitted
thereunder);
(d) eFunds shall not be required to effect any registration of
Registrable Securities under this Section 2.03 incidental to the
registration of any of its securities in connection with mergers,
acquisitions, exchange offers, subscription offers, dividend
reinvestment plans or stock option or other executive or employee
benefit or compensation plans; and
(e) no registration of Registrable Securities effected under
this Section 2.03 shall relieve eFunds of its obligation to effect a
registration of Registrable Securities pursuant to Section 2.02.
Section 2.04. Expenses. Deluxe shall pay or cause to be paid all
Registration Expenses with respect to a particular offering (or proposed
offering), as the case may be, except for fees, disbursements and expenses
related to eFunds' counsel, accountants and other advisors. Notwithstanding the
foregoing, Deluxe, any other Holder and eFunds shall each be responsible for its
own internal administrative and similar costs, which shall not constitute
Registration Expenses.
Section 2.05. Registration and Qualification. If and whenever eFunds is
required to effect the registration of any Registrable Securities under the
Securities Act as provided in Sections 2.02 or 2.03, eFunds shall as promptly as
practicable:
(a) prepare, file and use its reasonable best efforts to cause
to become effective a registration statement under the Securities Act
relating to the Registrable Securities to be offered;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be
necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities until the earlier of (A) such
time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition set forth in such
registration statement and (B) the expiration of (i) twelve months
after such registration statement becomes effective or (ii) twenty four
months after a registration statement filed in a Rule 415 offering
becomes effective; provided, that such respective periods shall be
extended for such number of days that equals the number of days
elapsing from (x) the date the written notice contemplated by paragraph
(f) below is given by eFunds to (y) the date on which eFunds delivers
to the Holders of Registrable Securities the supplement or amendment
contemplated by paragraph (f) below;
(c) furnish to the Holders of Registrable Securities and to
any underwriter of such Registrable Securities such number of conformed
copies of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such number
of copies of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus), in
conformity with the requirements of the Securities Act, such documents
incorporated by reference in such registration statement or prospectus,
and such other documents, as the Holders of Registrable Securities or
such underwriter may reasonably request, and a copy of any and all
transmittal letters or other correspondence to or received from, the
SEC or any other governmental agency or self-regulatory body or other
body having jurisdiction (including any domestic or foreign securities
exchange) relating to such offering;
(d) use its reasonable best efforts to register or qualify all
Registrable Securities covered by such registration statement under the
securities or blue sky laws of such jurisdictions as the Holders of
such Registrable Securities or any underwriter to such Registrable
Securities shall request, and use its reasonable best efforts to obtain
all appropriate registrations, permits and consents in connection
therewith, and do any and all other acts and things which may be
necessary or advisable to enable the Holders of Registrable Securities
or any such underwriter to consummate the disposition in such
jurisdictions of its Registrable Securities covered by such
registration statement; provided, that, eFunds shall not for any such
purpose be required to qualify generally to do business as a foreign
corporation in any such jurisdiction wherein it is not so qualified or
to consent to general service of process in any such jurisdiction;
(e) (i) use its reasonable best efforts to furnish to each
Holder of Registrable Securities included in such registration (each, a
"Selling Holder") and to any underwriter of such Registrable Securities
an opinion of counsel for eFunds addressed to each Selling Holder and
dated the date of the closing under the underwriting agreement (if any)
(or if such offering is not underwritten, dated the effective date of
the registration statement) and (ii) use its reasonable best efforts to
furnish to each Selling Holder a "Cold Comfort" letter addressed to
each Selling Holder and signed by the independent public accountants
who have audited the financial statements of eFunds included in such
registration statement, in each such case covering substantially the
same matters with respect to such
registration statement (and the prospectus included therein) as are
customarily covered in opinions of issuer's counsel and in accountants'
letters delivered to underwriters in underwritten public offerings of
securities and such other matters as the Selling Holders may reasonably
request and, in the case of such accountants' letter, with respect to
events subsequent to the date of such financial statements;
(f) as promptly as practicable, notify the Selling Holders in
writing (i) at any time when a prospectus relating to a registration
pursuant to Sections 2.02 or 2.03 is required to be delivered under the
Securities Act of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading and (ii) of any request by the SEC or any other
regulatory body or other body having jurisdiction for any amendment of
or supplement to any registration statement or other document relating
to such offering, and in either such case, at the request of the
Selling Holders prepare and furnish to the Selling Holders a reasonable
number of copies of a supplement to or an amendment of such prospectus
as may be necessary so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading;
(g) if reasonably requested by the lead or managing
underwriters, use its reasonable best efforts to list all such
Registrable Securities covered by such registration on each securities
exchange and automated inter-dealer quotation system on which a class
of common equity securities of eFunds is then listed;
(h) to the extent reasonably requested by the lead or managing
underwriters, send appropriate officers of eFunds to attend any "Road
Shows" scheduled in connection with any such registration, with all
out-of-pocket costs and expense incurred by eFunds or such officers in
connection with such attendance to be paid by eFunds; and
(i) furnish for delivery in connection with the closing of any
offering of Registrable Securities pursuant to a registration effected
pursuant to Sections 2.02 or 2.03 unlegended certificates representing
ownership of the Registrable Securities being sold in such
denominations as shall be requested by the Selling Holders or the
underwriters.
Section 2.06. Conversion of Other Securities, Etc. In the event that
any Holder offers any options, rights, warrants or other securities issued by it
or any other Person that are offered with, convertible into or exercisable or
exchangeable for any Registrable Securities, the Registrable Securities
underlying such options, rights, warrants or other securities shall continue to
be eligible for registration pursuant to Sections 2.02 and 2.03.
Section 2.07. Underwriting; Due Diligence.
(a) If requested by the underwriters for any underwritten
offering of Registrable Securities pursuant to a registration requested
under this Article II, eFunds shall enter into an underwriting
agreement with such underwriters for such offering, which agreement
will contain such representations and warranties by eFunds and such
other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnification and contribution provisions substantially
to the effect and to the extent provided in Section 2.08 (or such other
indemnification and contribution provisions as may be customary that
are requested by such underwriter or underwriters), and agreements as
to the provision of opinions of counsel and accountants' letters to the
effect and to the extent provided in Section 2.05(e). The Selling
Holders on whose behalf the Registrable Securities are to be
distributed by such underwriters shall be parties to any such
underwriting agreement and the representations and warranties by, and
the other agreements on the part of, eFunds to and for the benefit of
such underwriters, shall also be made to and for the benefit of such
Selling Holders. Such underwriting agreement shall also contain such
representations and warranties by such Selling Holders and such other
terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnification and contribution provisions substantially
to the effect and to the extent provided in Section 2.08.
(b) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the
Securities Act pursuant to this Article II, eFunds shall give the
Holders of such Registrable Securities and the underwriters, if any,
and their respective counsel and accountants, such reasonable and
customary access to its books and records and such opportunities to
discuss the business of eFunds with its officers, employees, agents,
representatives, customers, suppliers and others having business
relationships with eFunds and the independent public accountants who
have certified the financial statements of eFunds as shall be
necessary, in the opinion of such Holders and such underwriters or
their respective counsel, to conduct a reasonable investigation within
the meaning of the Securities Act.
Section 2.08. Indemnification and Contribution.
(a) In the case of each offering of Registrable Securities
made pursuant to this Article II, eFunds agrees to indemnify and hold
harmless, to the extent permitted by law, each Selling Holder, each
underwriter of Registrable Securities so offered and each Person, if
any, who controls any of the foregoing Persons within the meaning of
the Securities Act and the officers, directors, Affiliates, employees
and agents of each of the foregoing, against any and all losses,
liabilities, deficiencies, damages, expenses or costs (including,
without limitation, any legal or other expenses incurred in connection
with defending or investigating any such action or claim)
(collectively, "Losses"), as incurred, arising out of or relating to
any untrue statement or alleged untrue statement of a material fact
contained in, or incorporated by reference into, in the registration
statement (or in any
preliminary or final prospectus included therein) or in any offering
memorandum or other offering document relating to the offering and sale
of such Registrable Securities prepared by eFunds or at its direction,
or any amendment thereof or supplement thereto, or any omission by
eFunds or alleged omission by eFunds to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading; except that eFunds shall not be liable to any
Person in any such case to the extent that any such Loss arising out of
or relating to any untrue statement or alleged untrue statement, or any
omission or alleged omission, if such statement or omission shall have
been made in reliance upon and in conformity with information relating
to a Selling Holder, another holder of securities included in such
registration statement or underwriter furnished in writing to eFunds by
or on behalf of such Selling Holder, other holder or underwriter, as
the case may be, specifically for use in the registration statement (or
in any preliminary or final prospectus included therein), offering
memorandum or other offering document, or any amendment thereof or
supplement thereto. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of any
Selling Holder, any other holder or any underwriter and shall survive
the transfer of such securities. In the case of an offering with
respect to which a Selling Holder has designated the lead or managing
underwriters (or a Selling Holder is offering Registrable Securities
directly, without an underwriter), this indemnity does not apply to any
Loss arising out of or relating to any untrue statement or alleged
untrue statement or omission or alleged omission in any preliminary
prospectus or offering memorandum if a copy of a final prospectus or
offering memorandum was not sent or given by or on behalf of any
underwriter (or such Selling Holder or other holder, as the case may
be) to such Person asserting such Loss at or prior to the written
confirmation of the sale of the Registrable Securities as required by
the Securities Act and such untrue statement or omission had been
corrected in such final prospectus or offering memorandum.
(b) In the case of each offering made pursuant to this
Agreement, each Selling Holder, by exercising its registration rights
hereunder, agrees to indemnify and hold harmless, and to cause each
underwriter of Registrable Securities included in such offering (in the
same manner and to the same extent as set forth in Section 2.08(a)) to
agree to indemnify and hold harmless, eFunds, each other underwriter
who participates in such offering, each other Selling Holder or other
holder with securities included in such offering and in the case of an
underwriter, such Selling Holder or other holder, and each Person, if
any, who controls any of the foregoing within the meaning of the
Securities Act and the Affiliates and Representatives of each of the
foregoing, against any and all Losses (including, without limitation,
any legal or other expenses incurred in connection with defending or
investigating any such action or claim), as incurred, arising out of or
relating to any untrue statement or alleged untrue statement of a
material fact contained in, or incorporated by reference into, the
registration statement (or in any preliminary or final prospectus
included therein) or in any offering memorandum or other offering
document relating to the offering and sale of such Registrable
Securities prepared by eFunds or at its direction, or any amendment
thereof or supplement thereto, or any omission by such Selling Holder
or underwriter, as the case may be, or alleged omission by such Selling
Holder or underwriter, as the case may be, of a material fact required
to be stated therein
or necessary to make the statements therein not misleading, but in each
case only to the extent that such untrue statement of a material fact
is contained in, or such material fact is omitted from information
relating to such Selling Holder or underwriter, as the case may be,
furnished in writing to eFunds by or on behalf of such Selling Holder
or underwriter, as the case may be, specifically for use in such
registration statement (or in any preliminary or final prospectus
included therein), offering memorandum or other offering document, or
any amendment thereof or supplement thereto. In the case of an offering
made pursuant to this Agreement with respect to which eFunds has
designated the lead or managing underwriters (or eFunds is offering
securities directly, without an underwriter), this indemnity does not
apply to any Loss arising out of or related to any untrue statement or
alleged untrue statement or omission or alleged omission in any
preliminary prospectus or offering memorandum if a copy of a final
prospectus or offering memorandum was not sent or given by or on behalf
of any underwriter (or eFunds as the case may be) to such Person
asserting such loss, liability, cost, claim or damage at or prior to
the written confirmation of the sale of the Registrable Securities as
required by the Securities Act and such untrue statement or omission
had been corrected in such final prospectus or offering memorandum.
(c) The indemnification procedures set forth in Sections
7.01(d) through (g) of the IPO and Distribution Agreement are
incorporated herein and made a part hereof for all purposes as if fully
set forth herein and shall govern the parties' rights and obligations
with respect thereto.
(d) If the indemnification provided for in this Section 2.08
shall for any reason be unavailable (other than in accordance with its
terms) to an Indemnified Party in respect of any Loss referred to
therein, then each Indemnifying Party shall, in lieu of indemnifying
such Indemnified Party, contribute to the amount paid or payable by
such Indemnified Party as a result of such Loss (i) as between eFunds
and the Selling Holders on the one hand and the underwriters on the
other, in such proportion as shall be appropriate to reflect the
relative benefits received by eFunds and the Selling Holders on the one
hand and the underwriters on the other hand or, if such allocation is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits but also the relative fault
of eFunds and the Selling Holders on the one hand and the underwriters
on the other with respect to the statements or omissions which resulted
in such Loss as well as any other relevant equitable considerations and
(ii) as between eFunds on the one hand and each Selling Holder on the
other, in such proportion as is appropriate to reflect the relative
fault of eFunds and of each Selling Holder in connection with such
statements or omissions as well as any other relevant equitable
considerations. The relative benefits received by eFunds and the
Selling Holders on the one hand and the underwriters on the other shall
be deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before
deducting expenses) received by eFunds and the Selling Holders bear to
the total underwriting discounts and commissions received by the
underwriters, in each case as set forth in the table on the cover page
of this prospectus. The relative fault of eFunds and the Selling
Holders on the one hand and of the underwriters on the other shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by eFunds and the Selling
Holders or by the underwriters. The relative fault of eFunds on the one
hand and of each Selling Holder on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by such party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, but not
by reference to any Indemnified Party's stock ownership in eFunds. The
amount paid or payable by an Indemnified Party as a result of the Loss
in respect thereof, referred to above in this paragraph (d) shall be
deemed to include, for purposes of this paragraph (d), any legal or
other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
eFunds and the Selling Holders agree that it would not be just and
equitable if contribution pursuant to this Section 2.08 were determined
by pro rata allocation (even if the underwriters were treated as one
entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to in
this paragraph. Notwithstanding any other provisions of this Section
2.08, no Selling Holder shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities of such Selling Holder were offered to the public exceeds
the amount of any damages which such Selling Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. Each Selling Holder's obligations to
contribute pursuant to this Section 2.08 are several in proportion to
the proceeds of the offering received by such Selling Holder bears to
the total proceeds of the offering received by all the Selling Holders
and not joint. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) Indemnification and contribution similar to that specified
in the preceding paragraphs of this Section 2.08 (with appropriate
modifications) shall be given by eFunds, the Selling Holders and
underwriters with respect to any required registration or other
qualification of securities under any state law or regulation or
governmental authority.
(f) The obligations of the parties under this Section 2.08
shall be in addition to any liability which any party may otherwise
have to any other party.
Section 2.09. Rule 144 and Form S-3. Commencing 90 days after the IPO
Date, eFunds shall use its reasonable best efforts to ensure that the conditions
to the availability of Rule 144 set forth in paragraph (c) thereof shall be
satisfied. Upon the request of any Holder of Registrable Securities, eFunds will
deliver to such Holder a written statement as to whether it has complied with
such requirements. eFunds further agrees to use its reasonable efforts to cause
all conditions to the availability of Form S-3 (or any successor form) under the
Securities Act of the filing of registration statements under this Agreement to
be met as soon as practicable after the
IPO Date. Notwithstanding anything contained in this Section 2.09, eFunds may
deregister under Section 12 of the Securities Exchange Act of 1934, as amended,
if it then is permitted to do so pursuant to said Act and the rules and
regulations thereunder.
Section 2.10. Transfer of Registration Rights.
(a) Any Holder may transfer all or any portion of its rights
under Article II to (i) any other transferee in respect of a number of
Registrable Securities owned by such Holder equal to or exceeding 3% of
the outstanding eFunds Common Stock at the time of the transfer (each
transferee that receives such minimum number of Registrable Securities
shall be referred to herein as a "Transferee"). Any transfer of
registration rights pursuant to this Section 2.09(a) shall be effective
upon receipt by eFunds of written notice from such Holder stating the
name and address of any Transferee and identifying the number of
Registrable Securities with respect to which the rights under this
Agreement are being transferred and the nature of the rights so
transferred and (ii) a written agreement from such Transferee to be
bound by the terms of this Article II and Sections 3.03, 3.06, 3.07,
3.09, and 3.11 of this Agreement. The Holders may exercise their rights
hereunder in such priority as they shall agree upon among themselves.
(b) Notwithstanding the foregoing, in the event that any
stockholder of Deluxe receives restricted Registrable Securities in the
Distribution and as a result of the Distribution, such stockholder is
"affiliated" with eFunds for purposes of the Securities Act, such
stockholder shall be entitled to the rights hereunder; provided,
however, that it shall only be entitled to request registration of
Registrable Securities pursuant to Section 2.01 twice and provided such
stockholder signs a written agreement to be bound by the terms of this
Agreement. Any such stockholder for purposes of this Agreement shall be
considered a "Holder".
Section 2.11. Holdback Agreement. If any registration pursuant to this
Article II shall be in connection with an underwritten public offering of
Registrable Securities, each Selling Holder agrees not to effect any public sale
or distribution, including any sale under Rule 144, of any equity security of
eFunds (otherwise than through the registered public offering then being made),
within 7 days prior to or 90 days (or such lesser period as the lead or managing
underwriters may permit) after the effective date of the registration statement
(or the commencement of the offering to the public of such Registrable
Securities in the case of Rule 415 offerings). Upon the reasonable request of
the underwriters, eFunds hereby also so agrees and agrees to use its reasonable
best efforts to cause each other holder of equity securities or securities
convertible into or exchangeable or exercisable for such securities (other than
in the case of equity securities, under dividend reinvestment plans or employee
stock plans, including, without limitation eFund's Stock Incentive Plan for
Deluxe Conversion Awards) purchased from eFunds otherwise than in a public
offering to so agree.
ARTICLE III
MISCELLANEOUS
Section 3.01. Limitation of Liability. Neither Deluxe nor eFunds shall
be liable to the other for any special, indirect, incidental or consequential
damages of the other arising in connection with this Agreement.
Section 3.02. Subsidiaries. Deluxe agrees and acknowledges that Deluxe
shall be responsible for the performance by each of its Affiliates of the
obligations hereunder applicable to such Affiliate.
Section 3.03. Term. This Agreement shall remain in effect until all
Registrable Securities held by Holders have been transferred by them to Persons
other than Transferees; provided, that the provisions of Section 2.07 shall
survive any such expiration.
Section 3.04. Further Assurances. Deluxe and eFunds shall execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
such instruments and take such other action as may be necessary or advisable to
carry out their obligations under this Agreement and under any exhibit, document
or other instrument delivered pursuant hereto.
Section 3.05. Specific Performance. The parties hereto acknowledge and
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, it is agreed that they
shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof in any court of competent jurisdiction in the United States or
any state thereof, in addition to any other remedy to which they may be entitled
at law or equity.
Section 3.06. Amendments. This Agreement shall not be supplemented,
amended or modified in any manner whatsoever (including without limitation by
course of dealing or of performance or usage of trade) except in writing signed
by the parties.
Section 3.07. Successors and Assigns. This Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
successors and assigns. Nothing contained in this Agreement, express or implied,
is intended to confer upon any other person or entity any benefits, rights or
remedies.
Section 3.08. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law. If any portion of this Agreement is declared invalid for
any reason in any jurisdiction, such declaration shall have no effect upon the
remaining portions of this Agreement, which shall continue in full force and
effect as if this Agreement had been executed with the invalid portions thereof
deleted; provided, that the entirety of this Agreement shall continue in full
force and effect in all other jurisdictions.
Section 3.09. Entire Agreement. Other than the IPO and Distribution
Agreement, this Agreement constitutes the entire agreement of the parties hereto
with respect to the subject matter hereof and thereof and supersedes all prior
agreements and undertakings, both written and oral, between the parties with
respect to the subject matter hereof and thereof.
Section 3.10. Notices. All notices, consents, requests, approvals, and
other communications provided for or required herein, and all legal process in
regard thereto, must be in writing and shall be deemed validly given, made or
served, (a) when delivered personally or sent by telecopy to the facsimile
number indicated below with a required confirmation copy sent in accordance with
subsection (c) below; or (b) on the next business day after delivery to a
nationally-recognized express delivery service with instructions and payment for
overnight delivery; or (c) on the fifth (5th) day after deposited in any
depository regularly maintained by the United States postal service, postage
prepaid, certified or registered mail, return receipt requested, addressed to
the following addresses or to such other address as the party to be notified
shall have specified to the other party in accordance with this section:
If to Deluxe:
Deluxe Corporation
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Chief Financial Officer
Facsimile:
Copy to: General Counsel
Facsimile: 000-000-0000
If to eFunds:
eFunds Corporation
000 Xxxx Xxxxxx Xxxxxxx
P.O. Box 12536
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Chief Financial Officer
Facsimile:
Copy to: General Counsel
Facsimile: 000-000-0000
Section 3.11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware. Each of the
parties hereto agrees that any dispute relating to or arising from this
Agreement or the transactions contemplated hereby shall be resolved only in the
court of the State of Minnesota sitting in the County of Hennepin or the United
States District Court for the District of Minnesota and the appellate courts
having jurisdiction of appeals in such courts. In that context, and without
limiting the generality of the foregoing, each of the parties hereby irrevocably
and unconditionally:
(a) submits for itself and its property in any legal suit,
action or proceeding relating to this Agreement or any transaction
contemplated hereby, or for recognition and enforcement of any judgment
in respect thereof, to the exclusive jurisdiction of the courts of the
State of Minnesota sitting in the County of Hennepin or the United
States District Court for the District of Minnesota and appellate
courts having jurisdiction of appeals in such courts, and each of the
parties hereto irrevocably and unconditionally agrees that all claims
in respect of any such suit, action, or proceeding shall be heard and
determined in such Minnesota State court or, to the extent permitted by
law, in such federal court;
(b) consents that any such suit, action or proceeding may and
shall be brought in such courts and waives any objection that it may
now or hereafter have to the venue or jurisdiction or any such action
or proceeding in such court or that such action or proceeding was
brought in an inconvenient forum and agrees not to plead or claim the
same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such party in its address as provided in Section 3.06
hereof; and
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by Delaware
law.
Section 3.12. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, and all of which
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
DELUXE CORPORATION
By: /s/ Xxxx XxXxxxx
------------------------
Name: Xxxx XxXxxxx
Title: Senior Vice President
EFUNDS CORPORATION
By: /s/ Xxxx X Xxxxxxxxx III
------------------------
Name: Xxxx X. Xxxxxxxxx III
Title: Chief Executive Officer
