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EXHIBIT 10.9
TRANSITIONAL SERVICES AGREEMENT
This Agreement is entered into and effective as of the 1st day of May, 2000
(the "Effective Date"), by and between Deluxe Corporation, a Minnesota
corporation ("Deluxe"), and eFunds Corporation, a Delaware corporation
("eFunds") (eFunds and Deluxe are at times referred to herein individually as a
"Party" and collectively as the "Parties").
Whereas, prior to the initial public offering ("IPO") of eFunds, Deluxe has
provided certain Transitional Services (as defined below) to eFunds and eFunds
has provided certain Transitional Services to Deluxe; and
Whereas, Deluxe and eFunds have both requested from each that certain of
such services continue pursuant to this Agreement; and
Whereas, Deluxe and eFunds agree to provide or cause to be provided these
services on terms and conditions set forth herein.
Subject to the terms, conditions, covenants and provisions of this
Agreement, Deluxe and eFunds mutually covenant and agree as follows:
Capitalized terms used and not otherwise defined herein have the meaning
given to them in the IPO and Distribution Agreement dated as of March 31, 2000
between Deluxe and eFunds (the "IPO and Distribution Agreement").
ARTICLE 1
SERVICES PROVIDED
1.01 Transitional Services.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, Deluxe or eFunds, as the case may be, (the "Service Provider")
will provide to eFunds or Deluxe, as the case may be, (the "Service
Receiver") those administrative and support services listed in Appendix A
and B attached hereto (individually a "Transitional Service," and
collectively the "Transitional Services"), during the time period for each
Transitional Service set forth on Appendix A or B, (the "Time Periods" for
all of the Transitional Services, and the "Time Period" for each
Transitional Service).
(b) Service Provider shall perform the Transitional Services
exercising the same degree of care as it exercises in performing the same
or similar services for its own account. Nothing in this Agreement shall
require Service Provider to favor Service Receiver over Service Provider's
businesses or those of any of its affiliates, subsidiaries or divisions.
(c) In no event shall Service Receiver be entitled to any new service
or to increase its use of any of the Transitional Services above that level
of use specified in the Appendices without the prior written consent of
Service Provider, which consent may be
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withheld by Service Provider for any or no reason in its sole and absolute
discretion. Service Provider shall not be required to provide Service
Receiver (i) extraordinary levels of Transitional Services that are above
the ordinary levels which existed prior to the Effective Date, (ii) special
studies, (iii) training, or (iv) the advantage of systems, equipment,
facilities, training, or improvements procured, obtained or made after the
Effective Date by Service Provider.
(d) In addition to being subject to the terms and conditions of this
Agreement for the provision of the Transitional Services, Service Receiver
agrees that the Transitional Services provided by third parties, as
permitted by Section 1.03 hereof, shall be subject to the terms and
conditions of any agreements between Service Provider and such third
parties.
(e) The Parties acknowledge and agree that in respect of Transitional
Services performed outside the United States the Service Provider and
Service Receiver will in most cases not be Deluxe or eFunds but one of
their respective subsidiary corporations (after implementation of the
Assignment and Assumption Agreement). The obligations of Deluxe and eFunds
hereunder in such situations will not be to provide or receive such
Transitional Services themselves but rather to use their best efforts to
require such subsidiaries to (i) provide or receive such services, as the
case may be, on the same terms and conditions as set out in this
Transitional Services Agreement and (ii) if necessary, enter into
agreements to provide or receive such services, as the case may be, mutatis
mutandis in form and substance the same as this Transitional Services
Agreement except to the extent it is necessary or appropriate to modify
such agreements to comply with local laws.
1.02 Representatives. Deluxe and eFunds shall each nominate a
representative to act as the primary contact person for the provision of all of
the Transitional Services (collectively, the "Primary Coordinators"). The
initial Primary Coordinators shall be the Controller of eFunds and the Chief
Financial Officer of Deluxe. The initial coordinators for each Party for each
Transitional Service shall be the individuals named in the description of such
Transitional Service in Appendix A or B (the "Service Coordinators"). Each Party
shall advise the other Party in writing of any change in the Primary
Coordinators and any Service Coordinator. Deluxe and eFunds agree that all
communications relating to the provision of the Transitional Services shall be
directed to both the respective Service Coordinators and Primary Coordinators
for such Transitional Service.
1.03 Personnel. In providing the Transitional Services, Service Provider,
as it deems necessary or appropriate in its sole discretion, may (i) use its
personnel or that of its affiliates, and (ii) employ the services of third
parties to the extent such third party services are routinely utilized to
provide similar services to other Service Provider businesses or are reasonably
necessary for the efficient performance of any of the Transitional Services.
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1.04 No Obligation to Continue to Use Transitional Services.
(a) Service Receiver shall have no obligation to continue to use any
of the Transitional Services and may delete any Transitional Service by
providing to Service Provider the written notice described in subsection
(b) below. If any Transitional Service is terminated by Service Receiver,
Service Provider shall have the option, in its sole and absolute
discretion, to discontinue any related Transitional Services by providing
45 days prior written notice to Service Receiver.
(b) For the purposes of this Section, unless otherwise specifically
set forth in Appendix A or B as the case may be, sixty (60) days prior
written notice of the termination of a Transitional Service must be
provided by Service Receiver with such notice to be effective as of the
sixtieth day..
(c) If any Transitional Service is terminated by Service Receiver as
described herein, Service Receiver does not have the right to unilaterally
reinstitute such Transitional Service.
1.05 Service Provider Access. To the extent reasonably required for Service
Provider's personnel to perform the Transitional Services, Service Receiver
shall provide Service Provider's personnel with access to its equipment, office
space, plants, and any other areas and equipment necessary for the provision of
the Transitional Services; provided that such access shall not unreasonably
interfere with Service Receiver's conduct of its business and Service Receiver's
facility and data security rules.
ARTICLE 2
COMPENSATION
2.01 Consideration. As consideration for the Transitional Services, Service
Receiver shall pay to Service Provider the amount specified for each
Transitional Service as set forth in Appendix A or B as the case may be. Upon
the termination of any Transitional Service in accordance with Section 1.04
above, the compensation to be paid under this Section 2.01 shall be reduced by
the amount specified for such terminated Transitional Service.
2.02 Taxes.
(a) General. Except as otherwise provided in Section 2.02 hereof,
Service Provider shall pay all taxes, including any charges, fees, duties,
levies, imposts, rates or other assessments imposed by any federal, state,
local or foreign taxing authority, including, but not limited to, income,
profits, gross receipts, excise, property, license, capital stock,
franchise, transfer, sales, use, payroll, withholding, social security,
value added or other taxes, and any interest, penalties or additions
attributable thereto assessed or levied against Service Provider in respect
of the Transitional Services performed under this Agreement.
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(b) Sales and Use Taxes. All applicable sales or use taxes assessed on
the provision of Transitional Services shall be paid by Service Receiver.
2.03 Invoicing and Payment.
(a) Service Provider shall invoice Service Receiver for all services
provided on a quarterly basis in arrears within 30 days of the end of the
applicable quarter. In the event Service Receiver disputes an item billed,
Service Receiver shall, within 60 days of receipt of Service Provider's
invoice, notify Service Provider of the item in dispute, specifying Service
Receiver's complaint. Service Receiver may withhold payment of items in
dispute without interest until the dispute is resolved. Each party shall be
entitled to offset amounts owing under this Agreement against amounts owing
under the Professional Services Agreement, ONE channel management
agreement, data sharing agreement or processor agreement to be entered into
between the parties by providing notice to the Primary Coordinator of the
other party. Payments of amounts owing pursuant to this Agreement, which
are not offset against amounts owed by Service Receiver, as set forth in
the preceding sentence, shall be made twice per year on the 30th day of
June and 31st day of December.
(b) If any payment is not paid when due or notice of dispute given as
provided above, Service Provider shall have the right, without any
liability to Service Receiver, or anyone claiming by or through Service
Receiver, to immediately cease providing the Transitional Service(s) for
which payment has not been made until the payment in full of all such
payments is made, which right may be exercised by Service Provider in its
sole and absolute discretion and shall not affect Service Provider's right
or ability to terminate this Agreement as set forth in Article 5 below.
2.04 Audits. Each Party, at its sole cost and expense, shall have the right
to audit the other Party's books of account and other records pertaining to the
cost of Transitional Services (including invoiced and reimbursed costs) pursuant
to this Agreement for a period of twenty-four (24) months following the end of
the calendar year in which such Transitional Services were rendered.
ARTICLE 3
LIMITATION OF LIABILITY AND WARRANTY
3.01 Transitional Services.
(a) Service Provider's liability for any claims, liabilities, damages,
losses, costs, expenses (including, but not limited to, settlements,
judgments, court costs and reasonable attorneys' fees), fines and penalties
(collectively, "Losses"), arising out of any actual or alleged injury, loss
or damage of any nature whatsoever in providing or failing to provide the
Transitional Services to Service Receiver shall be limited to an amount
equal to the total fees payable to Service Provider during the fiscal
quarter in which the Loss occurs, and in no event shall the aggregate
liability of Service Provider exceed the aggregate fees payable to Service
Provider under this Agreement. Notwithstanding
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anything to the contrary contained herein, in the event Service Provider
commits an error with respect to or incorrectly performs or fails to
perform any Transitional Service, at Service Receiver's request, Service
Provider shall use its best efforts to correct such error, re-perform or
perform such Transitional Service.
(b) Service Provider will not be liable to Service Receiver for any
act or omission of any other entity (other than due to a default by Service
Provider in any agreement between Service Provider and such other entity
and then, only in accordance with the provisions and subject to the
limitations contained in this Agreement) furnishing any Transitional
Service.
(c) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR AT
LAW OR IN EQUITY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR PUNITIVE,
SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR
ANY OTHER LOSS) ARISING FROM OR RELATING TO ANY CLAIM MADE UNDER THIS
AGREEMENT OR REGARDING THE PROVISION OF OR THE FAILURE TO PROVIDE THE
TRANSITIONAL SERVICES.
ARTICLE 4
TERM AND TERMINATION
4.01 Term. This Agreement shall become effective on the Effective Date and
shall remain in force until the expiration of the longest Time Period (plus any
extension in accordance with the provisions of Section 4.02 below) unless all of
the Transitional Services are terminated by Service Receiver in accordance with
Section 1.04 above, or this Agreement is terminated under Section 4.03, 6.06 or
6.10 below prior to the end of such period.
4.02 Extension. Subject to the earlier termination of this Agreement in
accordance with Section 4.03, 6.06 or 6.10 below and except as otherwise
provided with respect to any specific Transitional Service in Annex A hereto,
Service Receiver may extend each Time Period for one (1) additional sixty (60)
day period by providing Service Provider with at least forty-five (45) days'
prior written notice before the end of the Time Period in question.
4.03 Termination.
(a) If a Party (hereafter called the "Defaulting Party") shall fail to
perform or default in the performance of any of its obligations under any
applicable Transitional Service (other than as described in subsection (b)
below), the other Party (hereinafter called the "Non-Defaulting Party") may
give written notice to the Defaulting Party specifying the nature of such
failure or default and stating that the Non-Defaulting Party intends to
terminate any affected Transitional Service if such failure or default is
not cured within forty five (45) days of such written notice. If any
failure or default so specified is not cured within such forty five (45)
day period, the Non-Defaulting Party may elect to immediately terminate the
affected Transitional Services; provided, however,
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that if the failure or default relates to a good faith dispute by the
Defaulting Party, the Non-Defaulting Party may not terminate any such
Transitional Service pending the resolution of such dispute. Such
termination shall be effective upon giving a written notice of termination
from the Non-Defaulting Party to the Defaulting Party and shall be without
prejudice to any other remedy which may be available to the Non-Defaulting
Party against the Defaulting Party. Nothing herein shall be construed to
limit either Party's right to terminate any Transitional Service for
convenience as provided in Section 1.04 or the Service Provider's right to
suspend performance under Section 2.03(b) as a result of the Service
Receiver's failure to pay, as provided in those Sections.
(b) Either Party may immediately terminate this Agreement by written
notice to the other Party without any prior notice upon the occurrence of
any of the following events:
(i) the other Party enters into proceedings in bankruptcy or
insolvency;
(ii) the other Party shall make an assignment for benefit of
creditors;
(iii) a petition shall be filed against the other Party under a
bankruptcy law, a corporate reorganization law, or any other law for
relief as a debtor (or similar law in purpose or effect); or
(iv) the other Party enters into liquidation or dissolution
proceedings.
4.04 Administrative and Support Services. Service Receiver acknowledges
that Service Provider is providing the Transitional Services as an accommodation
to Service Receiver to allow Service Receiver a period of time to obtain its own
administrative and support services for its businesses. During the term of this
Agreement, Service Receiver agrees that it shall take all steps necessary to
obtain its own administrative and support services prior to the expiration of
the Time Period for each Transitional Service.
4.05 Survival of Certain Obligations. Without prejudice to the survival of
the other agreements of the Parties, the following rights and obligations shall
survive the termination of this Agreement: (a) for the period set forth therein,
the rights and obligations of each Party under Articles 4 and 5, and (b) Service
Provider's right to receive the compensation for the Transitional Services
provided, and reimbursement of the costs and expenditures described in Section
2.01 above incurred, prior to the effective date of termination.
ARTICLE 5
INDEMNITIES
5.01 Indemnity by the Parties for Claims by Employees. Service Provider and
Service Receiver mutually agree to defend, indemnify and hold harmless each
other from and against any and all claims or causes of action for injury to or
death of their respective employees which may arise in connection with the
performance of this Agreement, regardless of the cause or reason thereof, and
regardless of the negligence of the other.
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5.02 Term of Indemnity and Filing of Actions. The indemnities contained in
this Article shall survive for a period of three (3) years after the termination
of this Agreement for any reason, and any claim for indemnity under this Article
must be made by written notice to the indemnifying Party within one (1) year
after the discovery thereof.
5.03 Indemnification Procedures. With respect to any claims for
indemnification which involve a claim by a third party, the indemnification
procedures set forth in Section 7.01of 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. With respect to any claims for indemnification which do not involve a
claim by a third party, the procedures set forth in Article 8 hereof shall
govern the parties, rights and obligations with respect thereto.
ARTICLE 6
MISCELLANEOUS
6.01 Amendments. This Agreement shall not be supplemented, amended or
modified in any manner whatsoever (including by course of dealing or of
performance or usage of trade) except in writing signed by the Parties.
6.02 Successors and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors and
permitted assigns. No Party shall assign this Agreement or any rights herein
without the prior written consent of the other Party, which may be withheld for
any or no reason.
6.03 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 Primary Coordinators as set forth below and to the respective Service
Coordinators as identified in the applicable Appendix at 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
3680 Victoria
Shoreview, Minnesota
Attn: Chief Financial Officer
Fax Number: (651) 481-4477
Copy to: General Counsel
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Fax Number: (651) 787-2749
If to eFunds:
eFunds Corporation
400 West Deluxe Parkway
P.O. Box 12536
Milwaukee, Wisconsin 53212
Attn: Controller
Fax Number: (414) 341-5075
Copy to: General Counsel
Fax Number: (651) 787-2749
6.04 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the United States of America and the State of
Minnesota without regard to its conflicts of laws provisions.
6.05 Headings. The various headings used in this Agreement are for
convenience only and are not to be used in interpreting the text of the Articles
or Sections in which they appear or to which they relate.
6.06 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. Notwithstanding the foregoing, if
the portion of this Agreement which is declared invalid has the effect of
reducing the compensation due hereunder or preventing the reimbursement of the
costs and expenditures described in Section 2.01(b) above, Service Provider, at
its sole discretion, may terminate this Agreement by providing thirty (30) days
written notice to Service Receiver.
6.07 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.
6.08 Rights of the Parties; No Third Party Beneficiaries. Nothing expressed
or implied in this Agreement is intended or will be construed to confer upon or
give any person or entity, other than the Parties and their respective
subsidiaries and affiliates, as the case my be, any rights or remedies under or
by reason of this Agreement or any transaction contemplated thereby.
6.09 Reservation of Rights. Either Party's waiver of any of its rights or
remedies afforded hereunder or at law is without prejudice and shall not operate
to waive any other rights or remedies which that Party shall have available to
it, nor shall such waiver operate to waive the Party's rights to any remedies
due to a future breach, whether of a similar or different nature. The failure or
delay of a Party in exercising any rights granted to it hereunder shall not
constitute a waiver of any such right and that Party may exercise that right at
any time. Any single or
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partial exercise of any particular right by Service Provider shall not exhaust
the same or constitute a waiver of any other right.
6.10 Force Majeure. Any failure or omission by a Party in the performance
of any obligation under this Agreement shall not be deemed a breach of this
Agreement or create any liability, if the same arises from any cause or causes
beyond the control of such Party, including, but not limited to, the following,
which, for purposes of this Agreement shall be regarded as beyond the control of
each of the Parties hereto: acts of God, fire, storm, flood, earthquake,
governmental regulation or direction, acts of the public enemy, war, rebellion,
insurrection riot, invasion, strike or lockout; provided, however, that such
Party shall resume the performance whenever such causes are removed.
Notwithstanding the foregoing, if such Party cannot perform under this Agreement
for a period of forty-five (45) days due to such cause or causes, either Party
may terminate this Agreement by providing written notice to the other Party,
provided that nothing herein shall be construed as precluding either Party from
terminating a Transitional Service for convenience in accordance with the
provisions of Section 1.04.
6.11 Relationship of the Parties. It is expressly understood and agreed
that in rendering the Transitional Services hereunder, Service Provider is
acting as an independent contractor and that this Agreement does not constitute
either Party as an employee, agent or other representative of the other Party
for any purpose whatsoever. Neither Party has the right or authority to enter
into any contract, warranty, guarantee or other undertaking in the name or for
the account of the other Party, or to assume or create any obligation or
liability of any kind, express or implied, on behalf of the other Party, or to
bind the other Party in any manner whatsoever, or to hold itself out as having
any right, power or authority to create any such obligation or liability on
behalf of the other or to bind the other Party in any manner whatsoever (except
as to any actions taken by either Party at the express written request and
direction of the other Party).
6.12 Conflict. In case of conflict between the terms and conditions of this
Agreement and any Appendix, the terms and conditions of such Appendix shall
control and govern as it relates to the Transitional Service to which those
terms and conditions apply.
6.13 Entire Agreement. All understandings, representations, warranties and
agreements, if any, heretofore existing between the Parties regarding the
Transitional Services are merged into this Agreement, including the Appendices
attached hereto, which fully and completely express the agreement of the Parties
with respect to the subject matter hereof.
6.14 Waiver of Jury Trial and Consent to Jurisdiction. EACH PARTY HEREBY
(a) WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A JURY TRIAL IN CONNECTION WITH ANY
MATTER OR RIGHT ARISING UNDER THIS AGREEMENT OR RELATING TO THE TRANSITIONAL
SERVICES, (b) CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL
COURT WITHIN THE STATE OF MINNESOTA AND IRREVOCABLY AGREES THAT ALL ACTIONS OR
PROCEEDINGS ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE TRANSITIONAL
SERVICES SHALL BE LITIGATED IN ANY SUCH COURT, AND (c) WAIVES ANY OBJECTION
WHICH IT MAY HAVE BASED UPON IMPROPER VENUE
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OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDINGS IN ANY SUCH COURT.
ARTICLE 7
MONITORING COMMITTEE
7.01 Establishment. Both Primary Coordinators of the Parties shall
constitute the Monitoring Committee.
7.02 Purpose. The purpose of the Monitoring Committee is to review the
implementation of this Agreement and to use all reasonable efforts to resolve
issues in an effort to ensure the smooth and efficient operation of this
Agreement.
7.03 Frequency of Meetings. The Monitoring Committee shall meet once a
month or as necessary throughout the duration of this Agreement (other than
where the Parties agree that such a periodic meeting is not necessary) and as
otherwise reasonably requested by either Party.
7.04 Meeting Procedure. The Monitoring Committee shall keep minutes of its
meetings and develop a reasonable procedure if needed.
ARTICLE 8
DISPUTE RESOLUTION
8.01 Alternative Dispute Resolution
(a) Any material dispute between the Parties, either with respect to
the interpretation of any provision of this Agreement or with respect to
the performance or non-performance by a Party shall be resolved as provided
in this Article 8. The Parties understand and appreciate that their mutual
interests will be best served by effecting a rapid and fair resolution of
any claims or disputes which may arise out of this Agreement or from any
dispute concerning this Agreement's terms. Therefore, each Party agrees, to
use its best efforts to resolve all such disputes as rapidly as possible on
a fair and equitable basis.
(b) Upon the written request of either party, the Service Coordinators
shall promptly meet to resolve and negotiate in good faith to resolve a
dispute informally in accordance with the procedures set forth in Section
8.02 hereof. If the Service Coordinators cannot resolve the dispute within
fifteen (15) days of the initial notice of dispute, the Monitoring
Committee shall meet to resolve the dispute. The Monitoring Committee shall
promptly meet and negotiate in good faith to resolve the dispute informally
in accordance with the procedures set forth in Section 8.02 hereof.
(c) If any dispute or claim arising under this Agreement cannot be
resolved by the Monitoring Committee pursuant to Section 8.01(b), the
Parties agree to refer the matter to a panel consisting of one (1) senior
executive from each Party (the "New Representatives") for review and
resolution. The senior executive shall not have been
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directly involved in the claim or dispute. The senior executives shall meet
and resolve the dispute within thirty (30) days of their appointment. Any
dispute that is not resolved through negotiation pursuant to this Section
8.01 shall be settled exclusively by final and binding arbitration in
accordance with Section 7.01 of the IPO and Distribution Agreement.
8.02 Dispute Resolution Procedures.
(a) During the course of negotiations between the Service
Coordinators, the Monitoring Committee, or the New Representatives, as the
case may be, all reasonable requests made by one party to the other for
nonprivileged information reasonably related to this Agreement (as
determined by the disclosing party in its sole discretion) shall be honored
in order that each of the parties may be fully advised of the other's
position.
(b) The specific format for the negotiations shall be left to the
discretion of the Service Coordinators, the Monitoring Committee or the New
Representatives, as the case may be, including the preparation of
agreed-upon statements of fact or written statements of position. At the
option of either party, legal counsel for such party may be present at any
such discussions.
8.03 Continued Performance. Each party shall continue performing its
respective obligations under this Agreement in good faith while any dispute is
being resolved under this Article 8 unless and until such obligations are
terminated as provided in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Transitional
Services Agreement to be executed the day and year first above written.
DELUXE CORPORATION
By: _____________________________
Title:___________________________
EFUNDS CORPORATION
By:______________________________
Title:___________________________
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ANNEX A
Transitional Services Provided by Deluxe to eFunds
1. Certain Treasury, Credit and Insurance Services.
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Description of Services: Deluxe shall assist eFunds with certain treasury,
credit and insurance services, consistent with past practice, including foreign
currency and certain hedging activities, investing, insurance and retirement
plan asset manager oversight. Deluxe shall provide banking services to eFunds
consistent with past practice, including, without limitation establishing
banking facilities, negotiating letters of credit, and administering electronic
funds transfers.
Service Fee: $12,500. To the extent any insured loss is incurred by eFunds and
its subsidiaries or affiliates, such entity shall be responsible for the payment
of any deductible amounts related thereto and any amounts in excess of
applicable coverage limits. In the event that the "aggregate stop loss"
deductible is exceeded in any insurance period, eFunds and its subsidiaries and
affiliates, on one hand, and Deluxe and its subsidiaries and affiliates, on the
other hand, shall be responsible for their pro rata portion of such deductible
based upon the losses of such parties submitted to Deluxe's insurance carrier(s)
in such period. To the extent that one party is allocated more than its pro rata
portion of the such deductible due to the timing of losses submitted to Deluxe's
insurance carrier(s), the other party shall promptly pay the first party an
amount so that each party has been properly allocated its pro rata portion of
the aggregate stop loss deductible.
Term: From closing of Initial Public Offering through Distribution
Service Coordinator at Deluxe: Karen Wiegert
Fax No.: 651-481-4292
Service Coordinator at eFunds: John Pendergast
Fax No.: 414-341-5075
2. Certain Employee Benefit Plans Administration.
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Description of Services: Deluxe shall assist in the administration to certain
employees of eFunds and its subsidiaries all benefit and compensation plans and
a 401(k) plan consistent with past practice.
Service Fee: $25,500 per month
Term: from closing of initial public offering through December 31, 2000
Service Coordinator at Deluxe: Toni Halvorson
Fax No.: 651-483-7270
Service Coordinator at eFunds: Doug Seipel
Fax No.: 414-341-5093
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3. Certain Accounting and Financial Services.
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Description of Service: Deluxe shall provide to eFunds financial reporting,
historical reporting, consolidation and systems support and shall assist eFunds
with its periodic and public reporting requirements pursuant to U.S. securities
laws.
Service Fee: $25,000/month for financial reporting
$16,600/month for consolidation and systems
$40/hour for historical reporting request
Term for financial reporting: from closing of initial public offering through
later of date of Distribution or November 14, 2000.
Term for consolidation and systems support: from closing of initial public
offering through the later to occur of the date of the Distribution or the date
that the SAP reconfiguration occurs
Term for historical reporting: from date of Distribution through December 31,
2001
Service Coordinator at Deluxe: Kathy Miller
Fax No.: 651-787-1441
Service Coordinator at eFunds: Bob Volke
Fax No.: 414-341-5093
4. Certain Legal Services.
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Description of Services: Deluxe shall provide to eFunds certain legal services
consistent with past practice.
Service Fee: None
Term: From closing of initial public offering through date of Distribution
Service Coordinator at Deluxe: Todd Wylie
Fax No.: (651) 787-2749
Service Coordinator at eFunds: Steve Coleman
Fax No.: (651) 787-2749
5 Certain Sales Support.
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Description of Services: Deluxe shall provide access to its sales force to sell
products of eFunds and shall provide relationship management services to
financial institutions and other sales support to eFunds.
Service Fee: $205,556 per month
Term: from closing of initial public offering through date of Distribution
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Service Coordinator at Deluxe: Chuck Feltz
Fax No.: 651-787-2043
Service Coordinator at eFunds: Jerry Lester
Fax No.: 414-341-5075
6. Free or Discounted ChexSystems Services in Check Printing Contracts
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Description of Services: Deluxe shall provide eFunds credits for ChexSystems
products as outlined in existing Check Printing contracts consistent with past
practice.
Service Fee: None, credits to be invoiced and paid to eFunds in accordance with
terms of Check Printing contracts
Term: until expiration of applicable FI Check Printing Contracts
Service Coordinator at Deluxe: Kris Johnson
Fax No.: 651-481-4040
Service Coordinator at eFunds: John Pendergast
Fax No.: 414-341-5075
7. Print Service.
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Description of Services: Deluxe shall provide fulfillment and inventory
management for printed materials and print and project support consistent with
past practice.
Service Fee: $4075 per month
Term: from closing of initial public offering through December 31, 2000
Service Coordinator at Deluxe: Ann Dibb
Fax No.: 651-483-4358
Service Coordinator at eFunds: Durwin Long
Fax No.: 651-787-1897
8. Certain Facilities.
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Description of Services: Deluxe shall provide eFunds space in the Deluxe
Headquarters facility for certain named employees, with full and open access to
all building facilities and services consistent with past practice.
Service Fee: $14,566 per month
Term: from closing of initial public offering through December 31, 2000
Service Coordinator at Deluxe: Jim Peters
Fax No.: 651-483-4345
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Service Coordinator at eFunds: Kath Steuer
Fax No.: 414-341-5090
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ANNEX B
Transitional Services Provided by eFunds to Deluxe
1. Certain Legal Services.
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Description of Services: eFunds shall provide to Deluxe certain legal services
consistent with past practice.
Service Fee: None
Term: from closing of initial public offering through date of Distribution
Service Coordinator at Deluxe: Todd Wylie
Fax No.: (651) 787-2749
Service Coordinator at eFunds: Steve Coleman
Fax No.: (651) 787-2749
2. Information Practices.
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Description of Services: eFunds shall coordinate a joint Information Practices
Council with Deluxe to maintain the integrity of data management and usage
through the term of this Agreement from the perspective of both eFunds and
Deluxe, consistent with past practice
Service Fee: None
Term: from closing of initial public offering through December 31, 2001
Service Coordinator at Deluxe: Rob Little
Fax No.: 651-787-1703
Service Coordinator at eFunds: Lisa Nelson
Fax No.: 612-858-1381
3. Transaction Processing
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Description of Services: eFunds shall provide to Deluxe and its financial
institution customers ACH processing services consistent with past practice.
Service Fee: $28,800 per month
Term: from the closing of the initial public offering through the earlier to
occur of December 31, 2001 and the date that Deluxe completes the migration of
its customers to other billing mechanisms
Service Coordinator at Deluxe: Jerry Ramsay
Fax No.: 651-483-7821
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Service Coordinator at eFunds: Rick Lyftogt
Fax No.: 602-431-2730
