Exhibit 10.3
PURCHASE AGREEMENT
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This Purchase Agreement (this "Agreement") is entered into as of February
5, 2010, by and between VALICO, INC., a California corporation (hereafter
referred to as "BUYER" ), and MERCHANT PROCESSING INTERNATIONAL, INC. , a
California corporation (hereafter referred to as "SELLER").
RECITALS:
A. WHEREAS, SELLER is entitled to receive compensation based upon the
processing activity of certain merchants and has other rights and benefits
pursuant to a written Sales Representative Agreement dated February 22, 2007
between Seller and Spectrum Business Solutions, Inc. For purposes of this
Agreement the compensation and all other rights of Seller pursuant to the Sales
Representative Agreement shall hereinafter be referred to as the "Merchant
Portfolio";
B. WHEREAS, SELLER has designated rights under and is obligated to pay a
percentage of the residual compensation to certain agents based on such agents'
marketing services pursuant one of the following written agreements between
Seller and each agent: (i) National Marketing Agreement, (ii) Independent Agent
Agreement, (iii) Independent Contractor Agreement, and (iv) Sales Agent
Agreement (hereinafter collectively the "Agent Agreements");
C. WHEREAS SELLER desires to sell and assign and BUYER desires to buy
and assume any and all rights to the Merchant Portfolio now or at any time
hereafter to SELLER with respect to the designated merchant accounts; and
D. WHEREAS SELLER desires to assign and BUYER desires to assume all
rights to and obligations under each of the Agent Agreements with respect to
certain agents and desires to solicit such agents to perform marketing services
to obtain new merchant accounts. For purposes of this Agreement, the Merchant
Portfolio, Designated Merchants and Agent Agreements (as defined below) shall be
collectively referred to as the "Transferred Assets."
AGREEMENT:
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Purchase of the Transferred Assets.
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(a) SELLER shall sell and BUYER shall purchase any and all rights to
and interests in the Merchant Portfolio now or at any time hereafter to SELLER
with respect to each of the merchant accounts stated in "EXHIBIT A", which is
attached hereto and incorporated herein by this reference (hereinafter the
"Designated Merchants"). Upon the execution of this Agreement by the parties,
which shall occur no later than February 5, 2010, otherwise this Agreement is
null and void, the sale of those accounts and the BUYER's right to the Merchant
Portfolio shall become retroactively effective as of January 1, 2010 (the
"Acquisition Date").
(b) The sale, conveyance, transfer of the Transferred Assets by SELLER
to BUYER shall be evidenced and affected by the execution of a Bill of Sale in
the form of "EXHIBIT B" which is attached hereto and incorporated herein by this
reference.
(c) SELLER also hereby assigns to BUYER any and all rights to and
obligations under each of the Agent Agreements with respect to each of the
agents identified in "EXHIBIT C," which is attached hereto and incorporated
herein by this reference ("Acquired Agents") as of the Acquisition Date.
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(d) For purposes hereof, and without in any way limiting BUYER's
discretion herein to select or reject Merchants as Designated Merchants, each
Designated Merchant must meet the following criteria, at a minimum: (i) such
Merchant must be currently "active" in the payment systems of BUYER's
processors, and (ii) there are no outstanding amounts currently due from such
Merchant (e.g., there are no unresolved ACH reject items or other Credit Loss
items) which have been outstanding for more than 60 days.
(e) Notwithstanding the foregoing, BUYER shall not assume any
liabilities or obligations that SELLER may owe to or in respect of the
Designated Merchants, and SELLER shall indemnify and hold BUYER harmless from
and against any such liabilities and obligations, for which BUYER may offset any
amounts owed to SELLER pursuant to this Agreement.
2. Payment of the Purchase Price. The purchase price for the
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Transferred Assets shall be $150,000.00 (hereinafter the "Purchase Price") and
shall be payable as follows:
(a) BUYER will pay $100,000.00 upon the parties' execution of this
Agreement and related documents thereto (hereinafter the "Initial Payment"), and
provided that such Designated Merchants have been approved as Merchants by BUYER
on or prior to such Acquisition Date and provided SELLER delivers to BUYER a
writing signed by an authorized representative of Spectrum Business Solutions,
Inc. confirming its approval of the Sales Representative Agreement assignment;
otherwise this Agreement shall be null and void;
(b) BUYER shall remit the remaining balance of the Purchase Price
($50,000.00) no later than May 3, 2010, which shall be evidenced by a Promissory
Note guaranteed by the two shareholders of BUYER in the same form as "EXHIBIT D"
attached hereto and incorporated herein by this reference (the "Final Payment").
(c) The parties agree that the covenant of BUYER to pay the Initial
Payment in a timely manner shall be good and sufficient consideration for the
full and complete release and satisfaction of any and all of SELLER's rights to
the Transferred Assets, including SELLER's right to the Acquired Agents and its
right to receive the residual income generated based on processing transactions
occurring on or after the Acquisition Date. For example, if the Acquisition
Date is January 1, 2010, then BUYER shall receive all residual income generated
based on processing transactions commencing January 1, 2010 and thereafter, and
thus, BUYER shall have the exclusive right to the entire residual check issued
in February, 2010 for January's transactions. After the Acquisition Date,
BUYER's only obligation to SELLER under this Agreement shall be to pay the Final
Payment in a timely manner, and SELLER shall have no further rights with respect
to the Transferred Assets or residuals generated from services then or
thereafter being provided to Designated Merchants by BUYER, its designated
processor or its service providers.
3. Representations. In order to induce BUYER to pay the Purchase Price
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to SELLER, SELLER hereby warrants and represents, to BUYER as follows: (i)
SELLER has not, at any time, assigned or encumbered (which encumbrance remains
unreleased with respect to the Designated Merchants) any of SELLER's rights to
the Transferred Assets; (ii) SELLER has agreed to accept the Purchase Price
based upon SELLER's own ideas of the value of the payments to be made by BUYER
to SELLER with respect to Transferred Assets and upon full arms length
negotiations and not in reliance upon any warranty or representation made by
BUYER or any agent of BUYER; (iii) SELLER shall be solely responsible for any
sums owing by SELLER to any employee, contractor, representative or agent of
SELLER (or any other person or entity) in connection with the residual payments
which are being released hereunder, PROVIDED, HOWEVER, BUYER shall be obligated
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to remit any monies owed to an agent pursuant to any of the Agent Agreements
assigned by SELLER to BUYER pursuant to the terms of this Agreement (unless
BUYER and the agent enter into a separate agreement which releases BUYER from
such obligations) and only relating to any residual income generated from
transactions occurring after the Acquisition Date for which BUYER actually
received the residual check for such transactions (i.e. relating to January,
2010 transactions if BUYER actually receives the residual check in February,
2010 for such transactions); and (iv) the person signing this Agreement on
behalf of SELLER certifies that he, she, or it
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has full authority to execute the same on behalf of SELLER and that this
Agreement has been duly authorized, executed and delivered by SELLER and is
binding upon SELLER in accordance with its terms. In order to induce SELLER to
enter into this Agreement, BUYER hereby warrants and represents to SELLER as
follows: (i) BUYER has adequate facilities and infrastructure, both in terms of
equipment, capital and personnel to service the accounts of the Designated
Merchants and to make the payment provided for herein; (ii) BUYER has agreed to
pay the Purchase Price based upon BUYER's own ideas of the value of the
Transferred Assets and upon full arms length negotiations and not in reliance
upon any warranty or representation made by SELLER or any agent of SELLER; and
(iii) the person signing this Agreement on behalf of BUYER certifies that he,
she, it has full authority to execute the same on behalf of BUYER and that this
Agreement has been duly authorized, executed and delivered by BUYER and is
binding upon BUYER in accordance with its terms.
4. Non-Solicitation. In order to induce BUYER to pay the Purchase
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Price to SELLER, SELLER covenants and agrees that, during the term of this
Agreement and for five (5) years thereafter, neither SELLER, nor any of SELLER's
agents or representatives (individually, a "Restricted Party" and collectively,
the "Restricted Parties"), shall solicit or contact, for the purpose of,
directly or indirectly, providing or receiving "Merchant Services" in the United
States, to any Designated Merchant nor shall the Restricted Parties solicit or
contact, for purposes of, directly or indirectly, providing or receiving
services relating to Merchant Services in the United States by any Acquired
Agent for which SELLER received the Purchase Price for which SELLER received any
monies from BUYER. "Merchant Services" shall mean any services pertaining to
negotiation of payment, including but not limited to acceptance of credit card
or debit card transaction records in documentary or electronic form from
merchants in connection with the processing and clearing of such records for
settlement and payment to such merchant as well as ACH transfers, check
guarantees, check authorizations, e-commerce payments and services and point of
sales systems on both a hardware or software basis. Further, none of the
Restricted Parties shall directly or indirectly, whether individually, in
partnership, jointly, or in conjunction with, or on behalf of, any person, firm,
partnership, corporation, or unincorporated association or entity of any kind
contract with or attempt to contract with, engage or attempt to engage, or enter
into a relationship with or attempt to enter into a relationship with, or
provide or attempt to provide goods and services to, any Designated Merchant or
new merchant for the purpose of, directly or indirectly, providing or receiving
Merchant Services or contract with or attempt to contract with, engage or
attempt to engage, or enter into a relationship with or attempt to enter into a
relationship with, or provide or receive goods and services from any Acquired
Agent for the purpose of, directly or indirectly, receiving services relating to
Merchant Services.
In the event that a Designated Merchant or Acquired Agent initiates contact or
attempts to initiate contact, or engages or attempts to engage any of the
Restricted Parties for the purpose of, directly or indirectly, providing or
receiving or offering services relating to Merchant Services, as the case may
be, such Restricted Party will, for the duration of this Agreement until the
fifth anniversary of the Acquisition Date, inform such merchant or agent, as the
case may be, that such Restricted Party is contractually prevented from
contracting, engaging or entering into a relationship with any merchant or
agent, by responding that:
"Under the terms of a recent agreement, I am contractually prohibited from
discussing any business relationship with you." BUYER shall be promptly
notified of this occurrence.
5. Acknowledgments. SELLER acknowledges and agrees that the
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restrictions set forth in Section 4 hereof are reasonable and necessary to
protect the legitimate business interests of BUYER and/or BUYER' successors or
assignees. SELLER further acknowledges and agrees that the restrictions set
forth in Section 4 hereof are narrowly drawn, are fair and reasonable, and place
no greater restraint upon SELLER than is reasonably necessary.
6. Injunctive Relief. SELLER agrees that, if SELLER violates any of the
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restrictions set forth in Section 4 hereof, BUYER would sustain irreparable harm
and, therefore, SELLER hereby irrevocably and unconditionally (i) agrees that,
in addition to any other remedies which BUYER may have under this Agreement or
otherwise at law or in equity, all of which remedies shall be cumulative, BUYER
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shall be entitled to apply to any court of competent jurisdiction for
preliminary and permanent injunctive relief and other equitable relief, (ii)
agrees that such relief and any other claim by BUYER pursuant hereto may be
brought in any court of general jurisdiction in Orange County, California (which
shall have exclusive jurisdiction in the State of California); (iii) consents to
the non-exclusive jurisdiction of any such court in any such suit, action or
proceeding, and (iv) waives any objection which SELLER may have to the laying of
venue of any such suit, action or proceeding in any such court.
7. Damages. (a) The parties agree that in the event SELLER breaches the
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restrictions set forth in Section 4 hereof, BUYER will be damaged in an amount
that may be difficult to measure and the parties agree that the appropriate
measure of fully liquidated damages in such event would be 24 times the average
monthly income received by BUYER with respect to each Designated Merchants or
Acquired Agents, as the case may be, which is the subject of such breach with
respect to the last three months that such merchant received services from BUYER
and/or BUYER' successors or assignees or with respect to the last three months
that such agent's cumulative merchants received services from BUYER and/or
BUYER's successors or assignees, as the case may be.
(b) SELLER further agrees to indemnify, defend, save and hold BUYER
harmless from and against any and all claims, loss, damage, expense, liability
or judgments (including attorneys fees and costs) arising from or related to (i)
any other breach or violation by SELLER of the terms and provisions of this
Agreement, (ii) any brokers fees or charges sought by any party in connection
with the transactions contemplated herein, and (iii) any practices of SELLER
and/or its agents or representatives that involve elements of fraud or that may
be deemed to be potentially injurious to BUYER or its successor or assignees.
BUYER shall also be entitled to recover interest computed at eighteen (18%)
percent per annum on any amounts due from SELLER hereunder, to the extent such
amounts are not paid within ten (10) days after demand by BUYER.
(c) In addition, SELLER will pay any reasonable attorney fees associated
with the cost of the collection of the foregoing damages. Without prejudice to
any other right or remedy which may be available to BUYER, to the maximum extent
permitted by law, BUYER shall have the right to set-off against and deduct from
any payments due from BUYER to SELLER any loss or damage suffered by BUYER in
the event of any breach by SELLER of any of SELLER's obligations under this
Agreement.
8. Successors and Assigns. All terms and provisions of this Agreement
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shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns. Without limiting the generality of the
foregoing, BUYER shall have the right to assign all or any part of its rights
hereunder to any purchaser of the assets of BUYER, and/or any purchaser of
BUYER' accounts with the Designated Merchants, without prior consent of or
notice to SELLER, in which case BUYER shall (i) remain fully responsible for all
of its obligations hereunder, (ii) require such purchaser to provide BUYER with
information that is substantially similar to the information that SELLER has
then been receiving hereunder, along with all information that would be required
to calculate and analyze future payment obligations hereunder, and (iii)
adequately provide for the BUYER' future financial obligations hereunder.
9. Severability of Provisions. If any provisions of this Agreement, as
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applied to any party or to any circumstances, is adjudged by a court to be
invalid or unenforceable, the same will in no way affect any other provision of
this Agreement, the application of such provision in any other circumstances or
the validity or enforceability of this Agreement. If any such provision, or any
part thereof, is held to be unenforceable because of the duration of such
provision or the area covered thereby, the parties agree that the court making
such determination will have the power to reduce the scope, duration and/or
effect of such words or phrases, and in its reduced form such provision will
then be enforceable and will be enforced to the fullest effect permitted by law.
In addition thereto, such court shall have the power to reform this Agreement in
such manner as may be required to affect its intent and purpose, which shall
include, without limitation, the deletion herefrom of any provision that cannot
be reformed to make it valid and enforceable.
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10. Miscellaneous. This Agreement shall not be amended, modified or waived
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in any fashion except by an instrument in writing signed by the parties hereto.
The waiver by any party of any breach of this Agreement by the other party shall
not be effective unless in writing, and no such waiver shall operate or be
construed as the waiver of the same or another breach on a subsequent occasion.
The parties agree that the laws of the State of California shall apply to the
interpretation of any disagreement arising under this Agreement. Any defined
term that is not otherwise defined in this Agreement shall have the meaning
ascribed to that term in the Agent Agreement. The captions contained in this
Agreement are for convenience of reference only and do not form a part of this
Agreement. The making, execution and delivery of this Agreement by the parties
hereto have been induced by no representations, statements, warranties or
agreements other than those herein expressed or referred to. This Agreement and
the other written instruments specifically referred to herein and therein,
embody the entire understanding of the parties and supersede in their entirety
all prior communication, correspondence, and instruments. This Agreement may be
executed and delivered in counterparts, or may be signed and delivered via
facsimile or similar transmission, and in either such event this Agreement shall
be valid, binding and enforceable in all respects as if it had been signed as
one document and delivered as an executed original.
11. Third Party Beneficiaries. This Agreement is made and entered into
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for the sole benefit and protection of the parties hereto, and the parties do
not intend to create any rights or benefits under this Agreement for any person
who is not a party to this Agreement.
12. Release of Claims. SELLER hereby acknowledges that he, she, or it
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has received independent legal advice from attorneys of his, her, or its choice
with respect to the advisability of making and executing this Agreement.
SELLER also acknowledges that he, she, or it has had the opportunity to review
this Agreement with legal counsel and that he, she, or it is familiar with the
provisions of section 1542 of the California Civil Code ("section 1542"), which
provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THIS RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED THE SETTLEMENT WITH THE DEBTOR.
SELLER, being aware of section 1542, hereby expressly waives and
relinquishes any right or benefit that he, she, or it has or may have under
section 1542 pertaining to the matters released herein, and any law or principle
of similar effect of any state of territory of the United States, to the full
extent that SELLER may lawfully waive such rights or benefits pertaining to the
subject matter of this Agreement. In connection with such waiver and
relinquishment, SELLER acknowledges that he, she, or it is aware that he, she,
or it may hereafter discover claims presently unknown or unsuspected, or facts
in addition to or different from those which he, she, or it now knows or
believes to be true, with respect to the matters released herein. Nevertheless,
it is the intention of SELLER, through this Agreement, to fully, finally, and
forever to release all such matters, and all claims relative thereto, which do
now exist, may exist, or have existed between and among the parties hereto
regarding the Designated Merchants, and all other matters between the parties.
In furtherance of such intention, the release herein given shall be, and remain
in effect as, a full and complete release of such matters notwithstanding the
discovery of the existence of any additional claims or facts relating thereto.
SELLER understands and acknowledges that he, she, or it is releasing, for
himself, herself, or itself and his, her, or its successors, all such claims by
executing this Agreement.
13. Non-disparagement. SELLER agrees to refrain from making or causing
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or encouraging others to make any defamatory, disparaging, slanderous or
derogatory comments or statements to any third party concerning BUYER, its
employees, officers, directors, affiliates, successors, and assigns. The
prohibition in the immediately preceding sentence applies to all statements that
disparage, discredit, slander or otherwise call into disrepute or question, the
character, reputation, competence, or integrity of such persons, without regard
to the truth or falsity of the statement made or writing disclosed.
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14. Further Assurances. On and after the Acquisition Date, SELLER
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shall give such further assurances to BUYER and execute, acknowledge and deliver
all such acknowledgments and other instruments and take further action as BUYER
may reasonably request to effectuate the transactions contemplated by this
Agreement, including the transfer of the Transferred Assets. SELLER further
assures BUYER to (i) notify BUYER of any contact to it by any Designated
Merchant and/or affiliate of any such merchants; and during such contact,
SELLER shall act in a professional manner and refer all further dealings
(including, but not limited to, the entering into, negotiating, and/or
discussing of any agreement with such merchants) to BUYER and (ii) at the
request of BUYER for information or assistance about any such merchant and any
such agent, including but not limited to its original documentation, to respond
to BUYER with such information in a prompt manner.
15. Survivability. Sections 4, 5 6, 7, 12, 13, and 14 shall survive the
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termination of this Agreement.
VALICO, INC. MERCHANT PROCESSING INTERNATIONAL, INC.
By:______________________________ By:_______________________________
Name:_____________________________
Title:____________________________
Dated: __________________________ Dated:____________________________
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