Asset Purchase Agreement dated as of May 13, 2021, between Republic Bank & Trust Company and Green Dot Corporation
BY AND BETWEEN
Republic Bank & Trust Company
Green Dot Corporation
DATED AS OF
Table of Contents
Table of Contents
Table of Contents
Table of Contents
LIST OF EXHIBITS
Form of Restrictive Covenant Agreement
Form of Bill of Sale and Assignment and Assumption Agreement
Form of Transition Services Agreement
Form of Omnibus Transfer Agreement
LIST OF EXHIBITS
Other Business Loans
Purchased Assets – Personal Property
Purchased Assets – Business Proprietary Rights
Purchased Assets – Products and Product Software
Schedules 5.1(a) and (b)
Conduct of Business
Matters re: Assignment of Contracts; Third-Party Consents
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this “Agreement”) is entered into as of May 13, 2021, by and between Republic Bank & Trust Company, a state-chartered banking corporation organized in Kentucky (“Seller”), and Green Dot Corporation, a Delaware corporation (“Buyer”). Capitalized terms used in this Agreement have the meanings assigned to such terms in Article 1 and elsewhere throughout this Agreement. Seller and Buyer may also be referred to herein individually as a “Party” and collectively as the “Parties”.
WHEREAS, Seller through its “Tax Refund Solutions” division is engaged in the Business;
WHEREAS, Seller desires to sell, transfer and assign, and Buyer desires to purchase the Purchased Assets (as defined below) and assume the Assumed Liabilities (as defined below), upon the terms and conditions set forth below;
WHEREAS, each of Buyer and Seller expect to benefit from the consummation of the Transactions (as defined below) and, to induce each other to enter into this Agreement, agree to be bound by the terms and provisions in this Agreement; and
WHEREAS, as a material inducement to Buyer to enter into this Agreement, contemporaneously with the execution and delivery of this Agreement by the Parties, each of Steve Trager and Bill Nelson is entering into a Restrictive Covenant Agreement, in the form attached hereto as Exhibit A.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
“2021 Incentives” has the meaning set forth in Section 5.11(c).
“Acquisition Proposal” has the meaning set forth in Section 5.2.
“Acquisition Transaction” has the meaning set forth in Section 5.2.
“Affiliate” of any particular Person means any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by or under common control with such Person, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise.
“Affiliated Group” means an affiliated group as defined in Section 1504 of the Code (or any analogous combined, consolidated or unitary group defined under state, local or foreign income Tax Law).
“Agreement” has the meaning set forth in Preamble.
“Allocation Statement” has the meaning set forth in Section 2.4.
“Assumed Liabilities” means all liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise), in each case to the extent first arising from or under the operation of the Business after the Closing or any of the Purchased Assets as used in the Business after the Closing, including (i) all contractual liabilities and obligations of performance first arising after the Closing under each Purchased Contract (other than any performance obligation arising out of or caused by any breach of contract or breach of warranty by Seller occurring prior to the Closing); (ii) all accounts payable of the Business arising from the operations of the Business after the Closing; and (iii) all liabilities in respect of or relating to Transferred Employees arising from their employment with Buyer (or its Affiliate) after the Closing or the operation of the Business after the Closing.
“Bankruptcy and Equity Principles” has the meaning set forth in Section 3.2.
“Benefit Plan” means any plan, program, policy, practice, contract, agreement or other arrangement providing for compensation, severance, termination pay, deferred compensation, performance awards, stock or stock-related awards, fringe benefits or other employee benefits or remuneration of any kind, whether written or unwritten or otherwise, funded or unfunded, including without limitation, each “employee benefit plan” within the meaning of Section 3(3) of ERISA and each “employee pension benefit plan” within the meaning of Section 3(2) of ERISA, each of which is maintained, contributed to, or required to be contributed to, by Seller for the benefit of any Business Employee.
“Bill of Sale” has the meaning set forth in Section 2.3(b)(ii).
“Business” means the business of Seller’s “Tax Refund Solutions” division, including without limitation, facilitating the receipt and payment of federal and state tax refunds through its refund transfer product, offering a tax credit product through third-party tax preparers located throughout the United States and tax-preparation Software providers, offering a credit product to EROs, facilitating a collection service for certain tax-preparation Software providers and providing certain other ancillary services to EROs and taxpayers.
“Business Day” means any day other than a Saturday, Sunday, federal holiday or other day on which commercial banks in Los Angeles, California are authorized or required by Law to close.
“Business Employees” means the employees of Seller or its Subsidiaries providing services in connection with or for the operation of the Business and set forth on Schedule 1.1-A.
“Business Loan” means a RAP Loan, a SPA Loan or an Other Business Loan, in each case owned by Seller as of the Closing Date.
“Business Marks” has the meaning set forth in Section 5.6.
“Business Source Code” means the source code and related documentation for any and all Software that is owned or is purported to be owned by Seller or an Affiliate of Seller, and included in or used to develop the Product Software.
“Business Systems” has the meaning set forth in Section 3.10(m).
“Buyer” has the meaning set forth in the Preamble.
“Buyer Fundamental Representations” has the meaning set forth Section 8.1(b).
“Buyer Indemnitees” has the meaning set forth in Section 8.2.
“Card Association” means VISA U.S.A., Inc. and Visa International, Inc. (collectively, “VISA”), MasterCard International, Inc., Discover Financial Services, LLC, American Express, Diners Club, Voyager, Carte Blanche, PayPal and any other card association, debit card network or similar entity and any legal successor organizations or association of any of them.
“Card Association Rules” means the rules, regulations, bylaws, standards, policies, and procedures of the Card Associations, including with respect to the Processing of Cardholder Data, the Payment Card Industry Data Security Standards (“PCI-DSS”) and the Payment Application Data Security Standards (“PA-DSS”), each as revised from time to time.
“Cardholder Data” means credit, debit or other payment method information, including the number assigned by a card issuer that identifies a cardholder’s account, card expiration date, data stored on the magnetic strip of a credit or debit card, PayPal or other online payment card processor account information and similar information (including any other cardholder information defined for or by the PCI-DSS or other PCI requirements).
“Claim Notice” has the meaning set forth in Section 8.5(a).
“Closing” has the meaning set forth in Section 2.3.
“Closing Date” has the meaning set forth in Section 2.3.
“COBRA Obligations” has the meaning set forth in Section 5.11(d).
“Code” means the Internal Revenue Code of 1986, as amended.
“Competitive Business” has the meaning set forth in Section 9.9(a).
“Competitive Territory” has the meaning set forth in Section 9.9(a).
“Confidentiality Agreement” means the Confidentiality Agreement, dated as of July 28, 2020, by and between Buyer and Seller, as amended.
“Contaminants” has the meaning set forth in Section 3.10(l).
“Continuing Claims” has the meaning set forth in Section 5.11(d).
“Contract” means any agreement, contract, purchase order, sales order or other legally binding commitment, arrangement or undertaking, together with any amendments and modifications thereto, excluding any Benefit Plan.
“Controlled Group” means Seller and each other Person that, together with Seller, is or was at a relevant time treated as a single employer under Section 414 of the Code.
“COVID-19” means SARS-CoV-2 or COVID-19, and any evolutions or mutations thereof or related or associated epidemics, pandemics or disease outbreaks.
“Electronic Return Originator” or “ERO” means the authorized Internal Revenue Service (IRS) e-file provider who originates the electronic submission of a Tax Return to the IRS.
“Environmental Law” means any Law in effect on or prior to the Closing in any way relating to the protection of human health and safety, the environment or natural resources including the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. App. § 1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Clean Water Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. § 136 et seq.) and the Occupational Safety and Health Act (29 U.S.C. § 651 et seq.), as each has been or may be amended and the regulations promulgated pursuant thereto.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Excluded Assets” means (i) Seller’s rights under or pursuant to this Agreement; (ii) any right to receive mail and other communications addressed to Seller relating to the Excluded Assets or the Excluded Liabilities; (iii) all accounts receivable, other than those of the Business arising from the operations of the Business from and after the Closing; (iv) other than any books and records to the extent set forth in the definition of Purchased Assets, all books and records of Seller and its Affiliates, including the corporate books and records of Seller and its Affiliates, Seller’s minute books, stock transfer records or other records having to do with the company organization of Seller, all Tax Returns of Seller and any notes, worksheets, files or documents relating thereto, and all books and records relating to any Excluded Asset or Excluded Liability; (v) all Excluded Contracts; (vi) any of Seller’s insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or not related to the Business, for all periods before, through and after the Closing, including any and all refunds and credits due or to become due thereunder and any and all claims, rights to make claims and rights to proceeds on any such insurance policies, binders and interests for all periods before, through and after the Closing; (vii) all assets used solely in or otherwise relating solely to Seller’s other businesses, divisions or segments wholly unrelated to the Business; (viii) all cash and cash equivalents; (ix) all bank accounts of the Business;
(x) all loans and extensions of credit or commitments in respect thereof made by Seller or its Affiliates at or prior to the Closing whether or not relating to the Business, including Easy Advance loans made by Seller prior to the Closing, other than the Participation Interests; (xi) the Excluded Marks; (xii) any refunds of or against Pre-Closing Taxes and (xiii) all assets listed on Schedule 1.1-B.
“Excluded Contracts” means (i) all Contracts used solely in or otherwise relating solely to Seller’s other businesses, divisions or segments other than the Business, and (ii) those Contracts used in or otherwise related to the Business, but are expressly being excluded, each of which is listed on Schedule 1.1-C.
“Excluded Liabilities” means all liabilities of Seller or its Subsidiaries of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) that are not expressly included in the Assumed Liabilities, including the following liabilities of Seller or its Subsidiaries: (i) liabilities and obligations set forth on Schedule 1.1-D; (ii) all accounts payable of the Business arising from the operations of the Business on or prior to the Closing; (iii) liabilities for Pre-Closing Taxes; (iv) all liabilities in respect of the Transferred Employees related to or arising from the period occurring on or prior to the Closing; and (v) liabilities and obligations resulting from or arising out of: (A) Indebtedness (whether or not reflected in the Financial Statements) of Seller or the Business as of the Closing, (B) any Excluded Asset, (C) breach of contract, breach of warranty, tort, infringement or violation of Law occurring prior to the Closing, other than a breach of this Agreement, (D) earned but unpaid compensation of any kind arising or relating to the period prior to the Closing, including, without limitation, retroactive pay raises, commission payments, officer or employee bonuses or profit-sharing plans or payments, (E) Non-Transferred Employees, (F) any Benefit Plan or other benefit plan or arrangement with respect to Seller or any member of the Controlled Group, or any deferred compensation arrangement, phantom stock arrangement, stock option arrangement or any other compensation arrangement with respect to Seller or any member of the Controlled Group, (G) any accrued vacation of the Transferred Employees related to all periods on or prior to the Closing, (H) any amounts owed to any Person under any non-competition, severance or similar arrangements, (I) any liabilities or obligations associated with the operation or conduct of any business by Seller, other than the Assumed Liabilities of the Business, (J) Seller Transaction Expenses, (K) any intercompany payable or any intercompany liability of any nature, (L) any Proceedings to which Seller or any of its Affiliates is or has been a party, on or prior to the Closing or any Proceeding to which Seller or any of its Affiliates is or has been a party arising after the Closing, but is related to the operation of the Business or otherwise on or prior to the Closing, (M) any liability owing to any Affiliate, equityholder, officer, director or manager of Seller or any of its Affiliates arising on or prior to the Closing and (N) any liabilities with respect to “deposit” accounts as defined in the Federal Deposit Insurance Act, 12 U.S.C. § 1813.
“Excluded License” has the meaning set forth in Section 3.10(h).
“Export Control Laws” has the meaning set forth in Section 3.23(c).
“Financial Statements” has the meaning set forth in Section 3.5(a).
“GAAP” means generally accepted accounting principles, consistently applied, in the United States as promulgated by all relevant accounting authorities.
“Generally Available Software” means any generally commercially available off-the-shelf Software in unmodified, executable code form.
“Government Licenses” means all permits, licenses, franchises, orders, registrations, certificates, variances, approvals and other authorizations obtained from or otherwise made available by or under the authority of a Governmental Authority or other similar rights, and all data and records pertaining thereto, including those listed on the attached Schedule 3.12, in all cases as related to the Business.
“Governmental Authority” means any (i) federal, state, local, municipal, foreign or other government, (ii) governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department or other entity and any court, arbitrator or other tribunal), (iii) multinational organization or (iv) body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory or Taxing authority or power of any nature.
“Guaranty” means any agreement, undertaking or arrangement by which any Person guarantees, endorses or otherwise becomes or is contingently liable upon the debt, obligation or other liability of any other Person (other than by endorsements of instruments in the ordinary course of collection) or guarantees of the payment of dividends or other distributions upon the shares of any other Person.
“HSR Act” means Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.
“Indebtedness” of any Person means, without duplication, the following liabilities of such Person incurred at or prior to the Closing: (i) the principal, accrued and unpaid interest, prepayment and redemption premiums or penalties (if any), unpaid fees or expenses and other monetary obligations in respect of (A) indebtedness of such Person for money borrowed (or issued in substitution for or exchange of indebtedness for borrowed money), or in respect of loans or advances to such Person and (B) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible or liable (including seller notes issued in connection with any acquisition undertaken by such Person); (ii) all obligations of such Person issued or assumed as the deferred purchase price of property or services (including earn-outs or other contingent payments), all conditional sale obligations of such Person and all obligations of such Person under any title retention agreement; (iii) all obligations of such Person under leases required to be capitalized in accordance with GAAP; (iv) all obligations of such Person for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction, solely to the extent drawn; (v) all obligations of such Person under interest rate or currency swap transactions (valued at the termination value thereof); (vi) all obligations of such Person secured by a Lien; (vii) any off-balance sheet financing of a Person (excluding all operating leases of such Person); (viii) all Guarantees of such Person in connection with any of the foregoing liabilities of any other Person incurred at or prior to the Closing; and (ix) any accrued interest, breakage or prepayment premiums or penalties or other costs or expenses related to any of the foregoing.
“Indemnitee” has the meaning set forth in Section 8.5(a).
“Indemnitor” has the meaning set forth in Section 8.5(a).
“Insider” means (i) any officer, director, or direct or indirect 10% or greater securityholder of Seller, or any Person with an equivalent relationship to Seller; (ii) any individual related by blood, marriage or adoption to any individual listed in clause (i) hereof; or (iii) any Affiliate of any of the foregoing.
“IT Assets” means any and all (a) Software, hardware, databases, servers, systems, sites, circuits, networks, data communications lines, workstations, routers, hubs, switches, interfaces, websites (including the content thereon), platforms and cloud services (including software as a service, platform as a service and infrastructure as a service), automated networks and control systems, and all other computer, telecommunications and information technology systems, assets and equipment (whether or not local or outsourced); and (b) associated documentation.
“Knowledge” means, with respect to Seller, the actual or constructive knowledge, after due inquiry, of Steve Trager, Bill Nelson, John Rippy, Jeff Kosse, Brent Schuman and Brad Cunningham. For purposes of this Agreement, “due inquiry” as it relates to the Knowledge means due inquiry in the ordinary course of the performance of such Person’s duties, which shall include reasonable inquiry of employees who (i) directly report to the foregoing Persons and (ii) have responsibilities pertinent to such inquiry.
“Latest Balance Sheet” has the meaning set forth in Section 3.5(a).
“Law” means any law, treaty, statute, ordinance, rule, principle of common law or equity, code or regulation of a Governmental Authority or judgment, decree, order, writ, award, injunction or determination of an arbitrator or court or other Governmental Authority, including the Pandemic Measures.
“Leased Real Property” means all leasehold or subleasehold estates and other rights to use or occupy, any land, buildings, improvements, fixtures or other interest in real property of Seller or its Affiliate related to or used in or by the Business.
“Leases” means all leases, subleases, licenses, concessions and other agreements (written or oral), pursuant to which Seller holds any Leased Real Property.
“Liens” means any lien, encumbrance, pledge, mortgage, deed of trust, security interest, claim, lease, charge, option, right of first refusal, easement, servitude, proxy, voting trust or agreement, transfer restriction under any shareholder or similar agreement, encumbrance or any other restriction or limitation whatsoever.
“Loan Participation Price” means 95% of the outstanding principal balance of each Business Loan as of the Closing. Seller’s good faith estimate of the Loan Participation Price shall be set forth in a statement delivered by Seller to Buyer in writing, together with supporting documents, no later than five (5) Business Days prior to the Closing Date and mutually agreed upon between Buyer and Seller at least two (2) Business Days prior to the Closing Date; provided, that as soon as practicable following the Closing Date (and no later than thirty (30) days following the Closing Date), Seller and Buyer shall mutually determine the final Loan Participation Price as of the Closing Date (taking into account any Business Loans issued in the period following the delivery of Seller’s good faith estimate and prior to the Closing) and the applicable Party shall pay an amount in cash to the other Party necessary to reflect the difference between the final Loan Participation Price and the estimated Loan Participation Price.
“Loss” has the meaning set forth in Section 8.2.
“Material Adverse Effect” means any event, circumstance, change, occurrence or effect (“Effect”) that has, has had or would reasonably be expected to have a material adverse effect on the assets, liabilities, financial condition or results of operations of the Business, taken as a whole; except for any
Effect resulting from or arising in connection with (A) changes or proposed changes in GAAP or changes in accounting requirements applicable to any industry in which the Business operates, (B) changes in the financial, securities, currency, international trade, capital or credit markets or in general economic or political conditions in any jurisdiction or industry in which the Business operates, (C) changes (including changes or proposed changes of applicable Law or the interpretation or enforcement thereof) in conditions generally affecting any industry in which the Business operates or the industries in which customers or suppliers of the Business operate, (D) any acts of God, disasters (including hurricanes, tornadoes, floods, fires, explosions, earthquakes and weather-related events), cyber-attack, terrorism, armed hostilities, sabotage, war, curfews, riots, demonstrations or public disorders or any escalation or worsening thereof after the date hereof, (E) any epidemic, pandemic or disease outbreak (including COVID-19) or worsening thereof, including (i) changes in the composition, number or identity of the employees of the Business resulting therefrom or (ii) commercially reasonable responses thereto (including the Pandemic Measures), (F) the announcement, pendency or consummation of the Transactions, the identity of Buyer or any facts or circumstances relating to Buyer or any actions taken by Buyer or the announcement or other disclosure of Buyer’s plans or intentions with respect to the conduct of the Business after the Closing, including the effect of any of the foregoing on the relationships, contractual or otherwise, of the Business with clients, customers, employees, suppliers, vendors, service providers or Governmental Authorities, (G) any failure to meet any internal projections, forecasts or predictions in respect of financial performance (it being understood that any underlying facts giving rise or contributing to such failure that are not otherwise excluded from the definition of “Material Adverse Effect” may be taken into account in determining whether there has been a Material Adverse Effect), (H) any action taken (or omitted to be taken) at the written request or with the written consent of Buyer or (I) actions or omissions permitted by the express terms of this Agreement or any action taken (or not taken) by Seller, any Subsidiary of Seller or the Business that is expressly required to be taken (or not taken) pursuant to this Agreement, except, in the case of clauses (A), (B), (C) and (D), to the extent the Business, taken as a whole, is affected materially disproportionately thereby relative to other participants in the industry or industries in which the Business operates (in which case only the incremental material disproportionate effect or effects may be taken into account in determining whether there has been a Material Adverse Effect).
“Material Contracts” has the meaning set forth in Section 3.8(a).
“Non-Competition Period” has the meaning set forth in Section 9.9(a).
“Non-Paying Party” has the meaning set forth in Section 5.13(a).
“Non-Transferred Employees” means (i) those employees of Seller who are not Business Employees or (ii) those employees of Seller who are Business Employees who are offered employment with Buyer or its Affiliates but do not accept employment with Buyer or its Affiliate on or as of the Closing Date.
“Organizational Documents” means (a) the articles or certificate of incorporation and the bylaws of a corporation, (b) the certificate of formation or articles of organization and the operating or limited liability company agreement of a limited liability company, (c) the partnership agreement and any statement of partnership of a general partnership, (d) the limited partnership agreement and the certificate of limited partnership of a limited partnership, (e) any charter or similar document adopted or filed in connection with the creation, formation, or organization of a Person and (f) any amendment to or restatement of any of the foregoing.
“Other Business Loan” means a loan originated by the Seller pursuant to the programs set forth on Schedule 1.1-E in the ordinary course of its business consistent with past practices.
“Outside Date” has the meaning set forth in Section 7.1(d).
“Pandemic Measures” means any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester or any other Law, decree, judgment, injunction or other order, directive, guidelines or recommendations by any Governmental Entity or industry group in connection with or in response to COVID-19, including the Coronavirus Aid, Relief, and Economic Security Act (CARES), or any other epidemic, pandemic or disease outbreak.
“Participation Agreement” has the meaning set forth in the Section 2.3(b)(ii).
“Participation Interests” means participation interests evidencing ownership of 95% of each Business Loan.
“Party” or “Parties” has the meaning set forth in the Preamble.
“Paying Party” has the meaning set forth in Section 5.13(a).
“Permitted Liens” means (i) Liens disclosed in the Financial Statements or notes thereto or securing liabilities reflected in the Financial Statements or notes thereto; (ii) Liens for Taxes not yet due and payable as of the Closing Date or, if due, not delinquent or that are being contested in good faith; (iii) mechanic’s, carrier’s, workmen’s, repairmen’s or other similar Liens arising or incurred in the ordinary course of business and for amounts which are not yet due and payable or, if due, not delinquent or that are being contested in good faith; (iv) statutory or contractual Liens of landlords or Liens on the landlord’s or prior landlord’s interests; (v) with respect to each parcel of Leased Real Property, zoning, building and other land use Laws imposed by any Governmental Authority having jurisdiction over such parcel which are not violated by the current use or occupancy of such parcel or Seller’s operations thereon and which do not materially impair the current use or occupancy of the property subject thereto; (vi) Liens constituting non-exclusive licenses in respect of any Proprietary Rights granted in the ordinary course of business; (vii) Liens incurred in the ordinary course of business since the date of the Latest Balance Sheet that do not materially adversely affect the ownership, use or operation of the property subject thereto; and (viii) Liens arising under workers’ compensation, unemployment insurance, social security, retirement or similar Laws.
“Person” means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability company, entity or Governmental Authority.
“Personal Data” means any data or information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular natural individual or household and any other data or information that constitutes “personal data”, “personal information,” or “personally identifiable information” under any applicable Privacy Obligation, and includes an individual’s combined first and last name, home address, telephone number, fax number, email address, social security number or other Governmental Authority-issued identifier (including state identification number, tax identification number, driver’s license number, or passport number), precise geolocation information of an individual or device, biometric data, medical or health information, credit card or other financial information (including bank account information), cookie identifiers associated with
registration information, or any other browser- or device-specific number or identifier not controllable by the end user, and web or mobile browsing or usage information that is linked to the foregoing.
“Pre-Closing Taxes” means (i) any Taxes of Seller or any of its Affiliates for any Tax period; (ii) any Taxes arising from or attributable to the Business, the Purchased Assets, or the operation of the Business for any period up to and including the Closing Date, including Straddle Period Taxes (including, for the avoidance of doubt, any and all Taxes of any Person for which Seller is responsible as a result of being a transferee or successor, by a Contract or otherwise, or pursuant to any Law, rule, or regulation, which Taxes relate to an event or transaction occurring before the Closing); and (iii) any Transfer Taxes allocated to Seller pursuant to Section 9.8.
“Proceeding” means all litigation, suits, actions, claims, charges, complaints, material grievances, arbitrations, audits, examinations, investigations, hearings, inquiries and other proceedings (in each case, whether civil, criminal, administrative, judicial or investigative, whether formal or informal, and whether public or private).
“Process” or “Processing” means any operation or set of operations which is performed on data, or on sets of data, including Personal Data, whether or not by automated means, such as the receipt, access, acquisition, arrangement, collection, copying, creation, maintenance, modification, recording, organization, processing, compilation, selection, structuring, storage, visualization, adaptation, alteration, retrieval, consultation, use, disclosure by transfer, transmission, dissemination or otherwise making available, alignment or combination, restriction, disposal, erasure or destruction, or instruction, training or other learning relating to such data or combination of such data.
“Product Software” has the meaning set forth in Section 3.10(d).
“Products” means all products of the Business, including Refund Transfers, Assisted Refunds, Easy Advances, Receivables Assistance Program, Software Purchase Assistance and collections process.
“Prohibited Fund” has the meaning set forth in Section 3.23(d)(iii).
“Prohibited Payments” has the meaning set forth in Section 3.23.
“Prohibited Person” means (a) a Person on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Department of the Treasury or the Denied Persons List or Entity List administered by the U.S. Department of Commerce; (b) a Person on any list of sanctioned Persons administered by the European Union or Member of the European Union; (c) the government of any nation against which the United States imposes a trade embargo, including any agency or instrumentality thereof; or (d) a Person acting or purporting to act, directly or indirectly, on behalf of, or an entity that is majority owned or controlled by, any of the Persons covered by subsections (a), (b) or (c).
“Proprietary Rights” means all intellectual property and proprietary rights throughout the world, including the following: (i) patents, patent applications, patent disclosures and inventions (whether or not patentable and whether or not reduced to practice) and any reissues, continuations, continuations-in-part, divisions, continued prosecution applications, extensions, as well as all reissues or reexaminations thereof; (ii) trademarks, service marks, trade dress, logos, slogans, trade names, Internet domain names, IP addresses, corporate names and other indicia of source and all registrations and applications for registration thereof, together with all goodwill associated therewith; (iii) web addresses, web pages, websites and related content, accounts with Twitter, Facebook and other social media companies and the content found thereon and related thereto, and URLs; (iv) copyrights and works of authorship, and all registrations and applications for registration thereof; (v) mask works and all registrations and applications for registration thereof; (vi) computer Software (including source code, object code, data, databases and related documentation); (vii) trade secrets, confidential information, and proprietary data and information (including compilations of data (whether or not copyrighted or copyrightable), ideas, discoveries, formulae, algorithms, compositions, blends, methods, processes, know-how, manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, improvements, proposals, technical data, financial and accounting data, business and marketing plans, and customer and supplier lists and related information); and (viii) all copies and tangible embodiments of the foregoing (in whatever form or medium), including in the case of each of the foregoing clauses (i) through (viii), the items set forth on Schedule 1.1-F.
“Purchase Price” has the meaning set forth in Section 2.2(a).
“Purchase Price Allocation” has the meaning set forth in Section 2.4.
“Purchased Assets” means all of Seller’s right, title and interest in and to (including indirect and other forms of beneficial ownership) the assets, properties and rights used or held for use in the conduct of, relating to or otherwise used in connection with the Business, whether tangible, intangible, real or personal and wherever located, as the same may exist as of the Closing, including, without limitation, the following such assets, properties and rights, but in each case excluding the Excluded Assets:
provided, however, it is acknowledged and agreed, and it is the intention of the Parties, that Generally Available Software, Business Systems, other information technology systems, shared vendor Contracts, or any assets relating to administrative, reporting or back office support services, and in each case, only to the extent that (i) they are not primarily related to the Business, (ii) they are enterprise-wide assets widely used throughout the organization of Seller and its Subsidiaries and Affiliates, (iii) none of such assets is the type that Buyer as a banking organization would not reasonably be expected to have or have access to (or to a substantially comparable alternative) in the normal course and (iv) Buyer is not required (as determined in its commercially reasonable discretion) to come out-of-pocket to procure (whether by purchase, license or otherwise) any such assets or assets substantially comparable thereto to operate the Business in the manner as operated by Seller, at any time immediately after the Closing or immediately after the expiration or termination of the Transition Services Agreement, which costs are above and beyond any such costs that Buyer would otherwise have been required to incur in any case had such asset been transferred to Buyer as a Purchased Asset at Closing (or, if Buyer would otherwise be required to incur such incremental costs, Seller implements at its expense alternative arrangements to provide such assets or the rights and benefits thereof to Buyer as necessary to put Buyer in substantially the same position it would have been in had such asset been transferred to Buyer as a Purchased Asset at Closing), shall not constitute a Purchased Asset (such assets meeting all of the requirements of (i), (ii), (iii) and (iv) that are excluded pursuant to this proviso (for the avoidance of doubt, not including any Excluded Assets identified in the definition thereof or Schedule 1.1-B), the “Excluded Enterprise Wide Assets”); provided, further, if after the Closing Buyer notifies Seller in writing that an asset initially determined to be an Excluded Enterprise Wide Asset does not constitute an Excluded Enterprise Wide Asset and such asset fails to meet any of the requirements under (i), (ii), (iii) and (iv) above, then upon receipt of such notice and within ten (10) days thereof, Seller shall provide or cause to be provided to Buyer for no additional consideration such omitted asset or assets substantially comparable thereto (or Seller shall implement at its expense alternative arrangements to provide such assets or the rights and benefits thereof to Buyer as necessary to put Buyer in substantially the same position it would have been in had such asset been transferred to Buyer as a Purchased Asset at Closing).
“Purchased Contracts” means Contracts to which Seller is a party relating to the Business, including (i) any agreements, contracts, arrangements, purchase orders, invoices and other instruments of purchase between Seller and customers of the Business or in respect of the Products; (ii) Software licenses, services agreements or similar agreements or arrangements through which Seller embeds, integrates, bundles, redistributes, resells or otherwise sublicenses Software licensed by any third party; (iii) Software licenses, services agreements or similar agreements or arrangements to which Seller is a party or is otherwise bound related to the development of Product Software; and (iv) computer Software licenses, services agreements or similar agreements or arrangements to which Seller is a party or is otherwise bound relating to Software or services used in connection with the Business Systems, all of which (other than orders, invoices and other instruments of purchase with customers of the Business) are identified listed on Schedule 1.1-K.
“Qualified Benefit Plan” has the meaning set forth in Section 3.17(a).
“RAP Loan” means a loan originated by Seller pursuant to its Receivables Assistance Program in the ordinary course of its business consistent with past practices.
“Repository” has the meaning set forth in Section 3.10(h).
“Restricted Employees” has the meaning set forth in Section 9.9(b).
“Security Breach” means any (i) accidental or unlawful destruction, loss, alteration, corruption, or other misuse of Sensitive Data transmitted, stored or otherwise Processed; (ii) unauthorized or unlawful acquisition, sale or rental of, access to or any other Processing of Sensitive Data; or (iii) other act or omission that compromises the security, integrity, or confidentiality of Sensitive Data.
“Seller” has the meaning set forth in the Preamble.
“Seller 401(k) Plan” means Seller’s 401(k) plan.
“Seller Fundamental Representations” has the meaning set forth Section 8.1(b).
“Seller Indemnitees” has the meaning set forth Section 8.3.
“Seller Transaction Expenses” means the aggregate amount of all out-of-pocket fees and expenses incurred by or on behalf of Seller or any of its Affiliates in connection with the negotiation, preparation or execution of this Agreement or any documents or agreements contemplated hereby or the performance or consummation of the Transactions, in each case, that have not been paid as of the Closing or thereafter, including: (i) all brokers’ or finders’ fees payable by Seller or its Affiliates, (ii) fees and expenses of Seller’s and its Affiliates’ counsel, advisors, consultants, investment bankers, accountants, auditors and experts and (iii) all sale, change-of-control, “stay-around,” retention, or similar bonuses or payments to current or former directors, managers, employees and other service providers of Seller paid solely as a result of the consummation of the Transactions and the employer portion of any payroll, employment or similar Taxes payable in connection therewith.
“Sensitive Data” means (a) all Personal Data and (b) all trade secrets and confidential or proprietary information or data in Seller’s possession, custody or control or the possession, custody or control of any Third Party service providers, consultants, independent contractors, EROs or other Third Parties on behalf of Seller and used or held for use in the conduct of the Business.
“Software” means (a) computer programs, including any and all software implementations of algorithms, models and methodologies, HTML and other code, whether in source code or object code form; (b) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise; (c) descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons; (d) cloud software and services, including software-as-a-service, platform-as-a-service and infrastructure-as-a-service; and (e) all documentation, including user manuals and other training documentation, related to any of the foregoing.
“SPA Loan” means a loan originated by the Seller pursuant to its Software Purchase Assistance program in the ordinary course of its business consistent with past practices.
“Straddle Period” means any Tax period beginning on or before the Closing Date and ending after the Closing Date.
“Straddle Period Tax” means in the case of any Taxes that are payable for a Straddle Period, the portion of such Tax which relates to the portion of such Straddle Period ending on the Closing Date and shall (A) in the case of property, ad valorem or other Taxes that accrue based upon the passage of time, be deemed to be an amount equal to the amount of such Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the Straddle Period through and including the Closing Date and the denominator of which is the number of days in the entire Straddle Period, and (B) in the case of any other Taxes, be deemed to be an amount equal to the amount of Taxes that would be payable if the relevant Straddle Period ended on and included the Closing Date.
“Subsidiary” means, with respect to any Person, any corporation, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (irrespective of whether, at the time, stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof or (ii) if a partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof.
“Tax” means any federal, state, local or foreign income, gross receipts, franchise, estimated, alternative minimum, add-on minimum, sales, use, transfer, real property, registration, value added, excise, natural resources, severance, stamp, occupation, premium, windfall profit, environmental, customs, duties, personal property, membership interests, social security, unemployment, disability, payroll, license, employee or other withholding, or other taxes, fees, assessments or charges of any kind whatsoever, including any interest, penalties or additions to tax or additional amounts in respect of the foregoing whether disputed or not; the foregoing shall include any transferee or secondary liability for a Tax and any liability assumed by agreement or arising as a result of being (or ceasing to be) a member of any Affiliated Group or being included (or required to be included) in any Tax Return relating thereto.
“Tax Return” means any return, declaration, report, claim for refund, information return or other document (including any related or supporting schedule, statement or information) filed or required to be filed in connection with the determination, assessment or collection of any Tax of any Person or the administration of any Laws, regulations or administrative requirements relating to any Tax, including any amendment thereof.
“Termination Fee” has the meaning set forth in Section 7.2(b).
“Third Party” means any Person or group other than Buyer and its Affiliates or Seller and its Affiliates.
“Third Party Claim” has the meaning set forth Section 8.5(b).
“Transaction Documents” has the meaning set forth in Section 3.2.
“Transactions” means the transactions contemplated by this Agreement and the other Transaction Documents.
“Transfer Agreement” has the meaning set forth in Section 2.3(b)(ii).
“Transfer Taxes” has the meaning set forth in Section 9.8.
“Transferred Employees” means all Business Employees who accept employment with Buyer or a Buyer Affiliate at the Closing.
“Transition Services Agreement” has the meaning set forth in Section 2.3(b)(ii).
PURCHASE AND SALE
objection to Buyer’s draft Allocation Statement, then the draft Allocation Statement as revised in accordance with the agreement reached between Buyer and Seller with respect to such dispute shall become the Purchase Price Allocation, and such Purchase Price Allocation, as agreed upon by Buyer and Seller (as a result of either Seller’s failure to object to the draft Allocation Statement or of good faith negotiations between the Parties), shall be final and binding upon the Parties. Notwithstanding any other provision in this Agreement to the contrary, if the Parties are unable to resolve any such dispute within the thirty- (30-) day period following Seller’s objection to Buyer’s draft Allocation Statement, then Buyer and Seller shall each be entitled to use their own allocation of the Purchase Price (including the amount of Assumed Liabilities and any other relevant amounts) among the Purchased Assets. The Purchase Price Allocation (if agreed between the Parties) shall be amended (with the mutual agreement of the Parties) consistent with Section 1060 of the Code and the Treasury Regulations promulgated thereunder (and any similar provision of state, local or foreign Law, as appropriate) to reflect any adjustments to the Purchase Price under this Agreement and any other adjustments mutually agreed to between the Parties. For the avoidance of doubt, neither Buyer nor Seller is obligated hereunder to use the Purchase Price Allocation in its financial accounting or financial reporting.
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth on the Schedules to this Agreement delivered by Seller to Buyer concurrently with the execution of this Agreement, Seller hereby represents and warrants to Buyer as follows:
the part of Seller is necessary to authorize the execution, delivery or performance by Seller of this Agreement or the execution, delivery or performance by Seller of the other Transaction Documents. This Agreement has been duly executed and delivered by Seller and (assuming the due execution and delivery of this Agreement by Buyer) this Agreement constitutes, and each other Transaction Document will each constitute (assuming due execution and delivery by each other party thereto), a valid and binding obligation of Seller, enforceable against it in accordance with its terms, except that such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws now or hereafter in effect affecting the rights and remedies of creditors and general principles of equity (whether considered in a Proceeding at law or in equity) (collectively, the “Bankruptcy and Equity Principles”).
REPRESENTATIONS AND WARRANTIES OF BUYER
Except as set forth on any Schedules to this Agreement delivered by Buyer to Seller concurrently with the execution of this Agreement, Buyer represents and warrants to Seller as follows:
any Governmental Authority, and (b) neither Buyer nor any of its Affiliates is subject to any judgment, order or decree of any Governmental Authority, in each case (a) or (b) which would adversely affect Buyer’s performance under this Agreement, the other agreements contemplated hereby or the consummation of the Transactions.
not included in the Purchased Assets; provided, that any such Acquisition Transaction and the negotiation thereof shall not prevent or materially impair Seller’s ability to consummate the Transactions in a timely fashion on the terms and conditions set forth in this Agreement.
CONDITIONS TO CLOSING
applicable indemnification obligation, such proceeds shall be promptly remitted to the Indemnitor to the extent of the indemnification payment made). Upon making any payment to the Indemnitee for any indemnification claim pursuant to this Article 8, the Indemnitor shall be subrogated, to the extent of such payment, to any rights which the Indemnitor may have against any Third Parties with respect to the subject matter underlying such indemnification claim, and the Indemnitee shall assign any such rights to the Indemnitor and otherwise cooperate with the Indemnitor in seeking recovery thereunder. Notwithstanding the foregoing, the Indemnitor shall not be required or obligated to pursue any rights of recovery against any Third Party insurance or indemnification.
ADDITIONAL AGREEMENTS; COVENANTS AFTER CLOSING
and Buyer shall consult with each other, to the extent reasonably practicable, in advance as to the contents and timing thereof; provided, further, that after the Transactions have been announced, Seller and its Affiliates and Buyer and its Affiliates shall be entitled to respond to questions in the ordinary course or issue any press release or make any other public statement that, in each case, is consistent (as to nature and scope) with any public statement previously issued or made by it in accordance with the provisions of this Section 9.2.
Notices to Seller:
Republic Bank & Trust Company
601 West Market Street
Louisville, KY 40202
Attn: William Nelson, President Republic Processing Group
with copies to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Facsimile: (212) 403-2000
Attn: Jacob A. Kling
Notices to Buyer:
Green Dot Corporation
3465 East Foothill Boulevard
Pasadena, CA 91107
Attn: General Counsel
with a copy (which shall not constitute notice) to:
Orrick, Herrington & Sutcliffe LLP
405 Howard Street
San Francisco, CA 94105
Attn: Jeannie Shin
Each of the Parties may designate a different address for notices by delivering written notice to the other Parties in accordance with this Section 10.2.
[Signature pages follows]
IN WITNESS WHEREOF, the parties hereto have executed this Asset Purchase Agreement as of the date first written above.
GREEN DOT CORPORATION
/s/ Dan Henry
Chief Executive Officer
[Signature Page to Asset Purchase Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Asset Purchase Agreement as of the date first written above.
REPUBLIC BANK & TRUST COMPANY
/s/ Steven E. Trager
Steven E. Trager
Chair and Executive Officer
[Signature Page to Asset Purchase Agreement]