EXHIBIT 10.8
PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement") is entered into on April 3, 2000
between Deluxe Financial Services, Inc., a Minnesota corporation ("DFSI"), and
eFunds Corporation, a Delaware corporation ("eFunds"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed to such
terms in Article I hereof.
RECITALS
WHEREAS, DFSI and eFunds are wholly owned subsidiaries of Deluxe
Corporation, a Minnesota corporation ("Deluxe");
WHEREAS, the Board of Directors of Deluxe has determined that it would be
appropriate and desirable to completely separate the eFunds Business from
Deluxe;
WHEREAS, the Boards of Directors of Deluxe, DFSI and eFunds have each
determined that it would be appropriate and desirable for DFSI to sell to eFunds
and for eFunds to purchase from DFSI certain real property located in Phoenix,
Arizona and personal property attached to such real property; and
WHEREAS, DSFI and eFunds intend in this Agreement, including the Exhibits
and Schedules attached hereto, to set forth the principal arrangements between
them regarding the sale of the real property located in Phoenix, Arizona and
personal property attached to such real property.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Defined Terms. The following terms, as used herein, shall have
the following meanings:
"Affiliates" means, with respect to any specified Person, any Person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with such specified Person;
provided, however, that for purposes of this Agreement, (i) Deluxe and its
Subsidiaries (other than eFunds and its Subsidiaries) shall not be
considered Affiliates of eFunds and (ii) eFunds and its Subsidiaries shall
not be considered Affiliates of Deluxe;
"eFunds Business" means the business and operations of eFunds as currently
conducted by eFunds, iDLX Corporation, eFunds Holding Ltd., Connex Europe
SRL, Deluxe Overseas, Inc., eFunds Corporation, Deluxe Payment Protection
Systems,Inc., Chex Systems, Inc. and Deluxe Analytic Research Technologies,
Inc., and as such business and operations will continue following the
Contribution Date.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Subsidiary" means, with respect to any Person, any corporation, any
limited liability company, any partnership or other legal entity of which
such Person or its Subsidiaries owns, directly or indirectly, more than 50%
of the stock or other equity interest entitled to vote on the election of
members of the board of directors or similar governing body. Unless the
context otherwise requires, with reference to Deluxe and its Subsidiaries,
the term "Subsidiary" shall not include eFunds or any Subsidiary of Deluxe
that will be transferred to eFunds after giving effect to the Separation.
ARTICLE II
PURCHASE AND SALE OF ASSETS
Section 2.1 Purchase and Sale of Assets. At the Closing, on and subject to
the terms and conditions of this Agreement, DFSI agrees to sell, convey,
transfer, assign and deliver to eFunds, and eFunds agrees to purchase and accept
from DFSI, all of the right, title and interest of DFSI in and to the following
assets (all of such assets, properties and rights being sometimes collectively
called the "Purchased Assets"):
(a) the real property located at Lots 20, 22, 23 and 34 and the South
half of Lot 19, SOUTHBANK, according to Book 306 of Maps, page 44, records
of Maricopa County, Arizona (the "Real Property"); and
(b) the personal property owned by DFSI described on Schedule 2.1(b)
attached hereto, and situated in or about the Real Property (the "Personal
Property").
Section 2.2 Assumption of Liabilities. In partial payment of the Purchase
Price (as defined in Section 2.4 hereof), subject to the terms and conditions
set forth in this Agreement, at Closing, eFunds hereby assumes and agrees on a
timely basis to pay, perform, satisfy and discharge, or will cause the eFunds
Subsidiaries to pay, perform, satisfy and discharge all debts, liabilities,
guarantees, assurances, commitments and obligations of DFSI or its Affiliates
primarily associated with the Purchased Assets (whether known or unknown,
asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated
or unliquidated, and due or to become due) (collectively, the "Assumed
Liabilities").
Section 2.3 Methods of Transfer and Assumption.
(a) eFunds and DFSI agree that transfers of Purchased Assets set forth
in Section 2.1 hereof shall be effected by delivery by DFSI to eFunds of
(a) with respect to any real property interest or any improvements thereon,
a quit claim deed in accordance with local practice, and (b) with respect
to all other Purchased Assets owned by DFSI, such good and sufficient
instruments of contribution, conveyance, assignment and transfer, in form
and substance reasonably
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satisfactory to DFSI and eFunds, as shall be necessary to vest in eFunds
all of DFSI's title and ownership interest in and to any such Purchased
Asset. Notwithstanding the quit claim nature of the conveyances herein
contemplated, DFSI hereby agrees to cooperate in all reasonable respects
with eFunds with respect to any third party ownership or lien claims on any
of the Purchased Assets. DFSI shall, among other things, provide eFunds
with such records, access to employees, officers and directors, and other
assistance as it may reasonably request with respect thereto, but shall not
be liable for any damages, payments, or claims related to the Purchased
Assets.
(b) To the extent necessary, the assumption of the Assumed Liabilities
contemplated pursuant to Section 2.2 hereof shall be effected by delivery
by eFunds to DFSI of such good and sufficient instruments of assumption, in
form and substance reasonably satisfactory to DFSI and eFunds as shall be
necessary for the assumption by eFunds of the Assumed Liabilities.
(c) Each of the parties hereto also agrees to deliver to any other
party hereto such other documents, instruments and writings as may be
reasonably requested by such other party hereto in connection with the
transactions contemplated hereby.
(d) NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO THE
CONTRARY, THE TRANSFERS AND ASSUMPTIONS REFERRED TO IN THIS ARTICLE II ARE
BEING MADE WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY NATURE (I) AS TO
THE VALUE OR FREEDOM FROM ENCUMBRANCE OF ANY OF THE PURCHSAED ASSETS, (II)
AS TO ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE OR OF ANY OTHER MATTER CONCERNING ANY OF THE PURCHASED
ASSETS, OR (III) AS TO THE LEGAL SUFFICIENCY TO CONVEY TITLE TO ANY OF THE
PURCHASED ASSETS. The instruments of transfer or assumption referred to in
this Section 2.3 shall not include any separate representations and
warranties. Deluxe and eFunds hereby acknowledge and agree that all
Purchased Assets are being transferred "AS IS, WHERE IS." eFunds shall bear
the economic and legal risks that any conveyances of the Purchased Assets
to eFunds shall prove to be insufficient or that eFunds's title to any of
the Purchased Assets which they currently own (or, after giving effect to
the transfers contemplated by this Agreement, will own) shall be other than
good and marketable and free from encumbrances.
(e) DFSI and eFunds hereby further acknowledge and agree that in the
event and to the extent that there is any conflict between the provisions
of this Agreement and the provisions of any of the instruments of transfer
or assumption referred to in this Section 2.3, the provisions of this
Agreement shall control except where a specific conveyancing instrument
specifically provides that such instrument shall control over this Section
2.3 and refers to this specific Section 2.3 by number.
(f) The parties intend to complete the transfer of all Purchased
Assets and the assumption of all eFunds Liabilities effective on or prior
to the Closing Date but, to the extent that any such transfers and
assumptions are not completed prior to the Closing Date, the parties shall
take all actions reasonably necessary or appropriate to complete such
transactions as promptly thereafter as possible. In addition to those
transfers and assumptions accurately
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identified and designated by the parties to take place but which the
parties are not able to effect prior to the Closing Date, there may exist
(i) Purchased Assets that the parties discover were, contrary to the
agreements between the parties, by mistake or omission, transferred to
eFunds or retained by Deluxe or (ii) liabilities that the parties discover
were, contrary to the agreements between the parties, by mistake or
omission, assumed by eFunds or not assumed by eFunds. The parties shall,
between the Closing Date and the date the Distribution occurs, cooperate in
good faith to effect the transfer or re-transfer of such Purchased Assets,
and/or the assumption or re-assumption of such Assumed Liabilities, to or
by the appropriate party and shall not use the determination of remedial
actions contemplated herein to alter the original intent of the parties
hereto with respect to Purchased Assets to be transferred to or the Assumed
Liabilities to be assumed by eFunds. Each party shall reimburse the other
or make other financial adjustments (e.g., without limitation, cash
reserves) or other adjustments to remedy any mistakes or omissions relating
to any of the Purchased Assets transferred hereby or Assumed Liabilities
assumed hereby.
Section 2.4 Consideration and Payment.
(a) Purchase Price. The aggregate purchase price for the Purchased
Assets shall be an amount equal to the $10,007,049.51 (the "Purchase
Price") plus the assumption of the Assumed Liabilities. The Purchase Price
shall be allocated as follows: $9,753,524.32 towards the Real Property, and
$343,525.19 towards the Personal Property.
(b) Payment of Purchase Price. At the Closing, eFunds shall pay the
Purchase Price in cash or by certified or bank cashier's check.
Section 2.5 Closing. The closing of the sale and purchase of the Purchased
Assets contemplated by this Agreement (the "Closing") shall take place on the
date hereof (the "Closing Date") at the offices of DFSI at 0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000. For accounting purposes, the parties hereto
covenant and agree the Closing will be deemed to have occurred as of 5:00 p.m.
on March 31, 2000.
ARTICLE III
INDEMNIFICATION
Section 3.1. Indemnification by eFunds. eFunds shall jointly and severally
indemnify in full DFSI and each of its Affiliates and their respective officers,
directors, employees, agents and representatives (the "Deluxe Indemnitees") and
hold them harmless against any and all losses, liabilities, deficiencies,
damages, expenses or costs (including reasonable legal and other external
advisors fees and expenses) (each an "Indemnifiable Loss"), resulting from,
relating to or arising, whether prior to or following the Closing Date, out of
or in connection with the Purchased Assets and the Assumed eFunds. Any
indemnification payment made under this Agreement shall be characterized for tax
purposes as if such payment were made immediately prior to the Closing Date.
Section 3.2. Indemnification Procedures.
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(a) If a claim or demand for an Indemnifiable Loss is made against a
Deluxe Indemnitee by any Person who is not a party to the this Agreement (a
"Third Party Claim") as to which such Deluxe Indemnitee is entitled to
indemnification pursuant to Section 1 hereof, such Deluxe Indemnitee shall
give eFunds notice of such Third Party Claim, as promptly as practicable,
but in any event no later than 15 days after the receipt by the Deluxe
Indemnitee of such notice; provided, however, that the failure to provide
such notice shall not release eFunds from any of its obligations under this
Agreement except to the extent eFunds is materially prejudiced by such
failure and shall not relieve eFunds from any other obligation or liability
that it may have to any Deluxe Indemnitee otherwise than under this
Agreement. If eFunds acknowledges in writing its obligations to indemnify
the Deluxe Indemnitee hereunder against any Indemnifiable Losses that may
result from such Third Party Claim, then eFunds shall be entitled to assume
and control the defense of such Third Party Claim at its expense and
through counsel of its choice, subject to the approval of the Deluxe
Indemnitee (which approval shall not be unreasonably withheld or delayed),
if it gives notice of its intention to do so to the Deluxe Indemnitee
within 15 days of the receipt of such notice from the Deluxe Indemnitee (or
such shorter period as may be required to avoid a default in responding to
the assertion of the Third Party Claim in any tribunal before which such
claim has been brought); provided, however, that if there exists or is
reasonably likely to exist a conflict of interest that would make it
inappropriate in the reasonable judgment of the Deluxe Indemnitee for the
same counsel to represent both the Deluxe Indemnitee and eFunds, then the
Deluxe Indemnitee shall be entitled to retain its own counsel, in each
jurisdiction for which the Deluxe Indemnitee determines counsel is required
to participate in such defense, at the expense of eFunds. In the event
eFunds exercises the right to undertake any such defense against any such
Third Party Claim as provided above, the Deluxe Indemnitee shall cooperate
with eFunds in such defense and make available to eFunds, at the eFunds's
expense, all witnesses, pertinent records, materials and information in the
Deluxe Indemnitee's possession or under the Deluxe Indemnitee`s control
relating thereto as is reasonably required by eFunds, subject to
reimbursement of reasonable out-of-pocket expenses. Similarly, in the event
the Deluxe Indemnitee is, directly or indirectly, conducting the defense
against any such Third Party Claim, eFunds shall cooperate with the Deluxe
Indemnitee in such defense and make available to the Deluxe Indemnitee all
such witnesses, records, materials and information in eFunds's possession
or under eFunds's control relating thereto as is reasonably required by the
Deluxe Indemnitee, subject to reimbursement of reasonable out-of-pocket
expenses. No such Third Party Claim may be settled by eFunds without the
prior written consent of the Deluxe Indemnitee (which shall not be
unreasonably withheld or delayed) unless such settlement is solely for
money and includes an unconditional release of each Deluxe Indemnitee from
any and all Indemnifiable Losses arising out of such action, claim, suit or
proceeding and would not otherwise adversely affect the Deluxe Indemnitee.
No such Third Party Claim may be settled by the Deluxe Indemnitee without
the prior written consent of eFunds which shall not be unreasonably
withheld or delayed.
(b) All Deluxe Indemnitees (other than DFSI) shall, as a condition of
their rights to indemnification hereunder, be deemed to have granted Deluxe
an irrevocable power of attorney, coupled with an interest, with respect to
all matters for which any determination may be made, action may be taken or
consent may be given or withheld under this Section 2, including, without
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limitation, any determination regarding selection of counsel and any
consent regarding settlement, and any such determination, action or consent
made, taken, given or withheld by such party shall be binding up such
Deluxe Indemnitee as if made, taken, given or withheld by such Deluxe
Indemnitee personally.
(c) Notwithstanding the foregoing, eFunds shall not be entitled to
assume the defense of any Third Party Claim and shall be liable for the
fees and expenses of counsel incurred by the Deluxe Indemnitee in defending
such Third Party Claim if the Third Party Claim seeks an order, injunction
or other equitable relief or relief for other than money damages against
the Deluxe Indemnitee which the Deluxe Indemnitee reasonably determines,
after conferring with its counsel, cannot be separated from any related
claim for money damages. If such equitable relief or other relief portion
of the Third Party Claim can be so separated from that for money damages,
eFunds shall be entitled to assume the defense of the portion relating to
money damages.
(d) In the event any Deluxe Indemnitee should have a claim against
eFunds that does not involve a Third Party Claim, the Deluxe Indemnitee
shall deliver a notice of such claim with reasonable promptness to eFunds.
If eFunds notifies the Deluxe Indemnitee that it does not dispute the claim
described in such notice or fails to notify the Deluxe Indemnitee within 20
business days after delivery of such notice by the Deluxe Indemnitee
whether eFunds disputes the claim described in such notice, the
Indemnifiable Loss in the amount specified in the Deluxe Indemnitee's
notice will be conclusively deemed a liability of eFunds and eFunds shall
pay the amount of such Indemnifiable Loss to the Deluxe Indemnitee on
demand. If eFunds has timely disputed the liability with respect to such
claim, the Chief Financial Officer of eFunds and the Chief Financial
Officer of DFSI will proceed in good faith to negotiate a resolution of
such dispute, and if not resolved through the negotiations of such
individuals within 20 days after the delivery of the Deluxe Indemnitee's
notice of such claim, such dispute shall be resolved fully and finally in
Minneapolis, Minnesota, by an arbitrator selected pursuant to and an
arbitration governed by Commercial Arbitration Rules of the American
Arbitration Association, as modified herein. The parties will jointly
appoint a mutually acceptable independent arbitrator, seeking assistance in
such regard from the American Arbitration Association. The arbitrator shall
resolve the dispute within 30 days after selection and judgment upon the
award rendered by such arbitrator may be entered in any court of competent
jurisdiction. Each of DFSI, on the one hand, and eFunds, on the other,
shall bear its own fees and expenses in connection with such arbitration
and shall bear 50% of the fees and expenses of the arbitrator.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Entire Agreement. This Agreement and the documents referenced
herein, constitute the entire agreement between the parties with respect to the
subject matter hereof and shall supersede all prior written and oral and all
contemporaneous oral agreements and understandings with respect to the subject
matter hereof.
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Section 4.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota without regard
to its conflicts of laws principles.
Section 4.3 Notices. All notices, consents, requests, approvals, and other
communications provided for or required herein, and all legal process in regard
thereto, must be in writing and shall be deemed validly given, made or served,
(a) when delivered personally or sent by telecopy to the facsimile number
indicated below with a required confirmation copy sent in accordance with
subsection (c) below; or (b) on the next business day after delivery to a
nationally recognized express delivery service with instructions and payment for
overnight delivery; or (c) on the fifth (5th) day after deposited in any
depository regularly maintained by the United States postal service, postage
prepaid, certified or registered mail, return receipt requested, addressed to
the following addresses or to such other address as the party to be notified
shall have specified to the other party in accordance with this section:
If to DFSI:
Deluxe Financial Services, Inc.
c/o Deluxe Corporation
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Chief Financial Officer
Facsimile:________________
Copy to: General Counsel
Facsimile:________________
If to eFunds:
eFunds Corporation
000 Xxxx Xxxxxx Xxxxxxx
P.O. Box 12536
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Chief Financial Officer
Facsimile:________________
Copy to: General Counsel
Facsimile:________________
Section 4.4 Parties in Interest. This Agreement, including the Schedules
and Exhibits hereto, and the other documents referred to herein, shall be
binding upon and inure solely to the benefit of each party hereto and their
legal representatives and successors, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights or remedies of
any nature whatsoever under or by reason of this Agreement.
Section 4.5 Counterparts. This Agreement, including the Schedules and
Exhibits hereto, and the other documents referred to herein, may be executed in
counterparts, each of
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which shall be deemed to be an original but all of which shall constitute one
and the same agreement.
Section 4.6 Assignment. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective legal representatives and
successors. This Agreement may not be assigned by any party hereto.
Section 4.7 Severability. If any term or other provision of this Agreement
or the Schedules or Exhibits attached hereto is determined by a nonappealable
decision by a court, administrative agency or arbitrator to be invalid, illegal
or incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the fullest extent possible.
Section 4.8 No Waiver; Remedies Cumulative. No failure or delay on the part
of any party hereto in the exercise of any right hereunder shall impair such
right or be construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor shall any single or partial
exercise of any such right preclude other or further exercise thereof or of any
other right. All rights and remedies existing under this Agreement or the
Schedules or Exhibits attached hereto are cumulative to, and not exclusive of,
any rights or remedies otherwise available.
Section 4.9 Amendment. No change or amendment will be made to this
Agreement except by an instrument in writing signed on behalf of each of the
parties to such agreement.
Section 4.10 Authority. Each of the parties hereto represents to the other
that (a) it has the corporate or other requisite power and authority to execute,
deliver and perform this Agreement, (b) the execution, delivery and performance
of this Agreement by it have been duly authorized by all necessary corporate or
other action, (c) it has duly and validly executed and delivered this Agreement,
and (d) this Agreement is a legal, valid and binding obligation, enforceable
against it in accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors, rights generally and general equity principles.
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Section 4.11 Interpretation. The headings contained in this Agreement, in
any Exhibit or Schedule hereto and in the table of contents to this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Any capitalized term used in any Schedule or
Exhibit but not otherwise defined therein, shall have the meaning assigned to
such term in this Agreement. When a reference is made in this Agreement to an
Article or a Section, Exhibit or Schedule, such reference shall be to an Article
or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated.
Section 4.12 Survival. All of the terms of this Agreement and the
obligations, warranties and representations herein contained, shall survive and
be enforceable after the Closing.
SIGNATURES ON FOLLOWING PAGE
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IN WITNESS WHEREOF, each of the parties has caused the Assignment and
Assumption Agreement to be executed on its behalf by its officers thereunto duly
authorized on the day and year first above written.
DELUXE FINANCIAL SERVICES, INC.
By:
Name: ________________________
Title:________________________
By:
Name: ________________________
Title:________________________
EFUNDS CORPORATION
By: ___________________________
Name: _________________________
Title:___________________
By:
Name: ________________________
Title:________________________
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