EXHIBIT 10.1
LETTER OF INTENT FOR ACQUISITION OF
SINERGIA SERVICIOS, S.C.
March 29, 1999
Sinergia Servicios, S.C.
Av. Union No. 480-S
C.P.: 4420
Guadalajara, Jalisco
MEXICO
Re: Agreement of One Commerce Corporation to Acquire Certain Assets of
Sinergia Servicios, S.C.
Ladies and Gentlemen:
The purpose of this letter ("Letter") is to set forth certain nonbinding
understandings and certain binding agreements between One Commerce Corporation,
a Texas corporation (the "Buyer"), and Sinergia Servicios, S.C., a company
established under the laws of Mexico (the "Seller"), with respect to the
acquisition of certain assets of the Seller on the terms set forth below:
PART I: - NONBINDING PROVISIONS
The following paragraphs of this Letter (collectively, the "Nonbinding
Provisions") reflect our mutual understanding of the matters described in them,
but each party acknowledges that the Nonbinding Provisions are not legally
binding until a definitive agreement (the "Definitive Agreement"), and other
related documents, are executed and delivered by the parties.
1. BASIC TRANSACTION. The Buyer and the Seller propose to enter into a
Definitive Agreement under which Buyer will acquire certain assets of the Seller
as described on Exhibit "A" hereto (the "Assets"). The transaction will be
structured as a tax-free exchange of shares of Buyer's Common Stock and cash for
the Seller's Assets. The Definitive Agreement will be structured such that the
exchange is tax-free to both the Seller, the Buyer and the shareholders of the
Seller. Xxxx Xxxxxxxx and Xxxxxxxx Xxxxxxxxx will each be employed by the Buyer
and one of them will agree to move to New Braunfels, Texas and conduct the
business activities of the Assets after the Closing Date.
Sinergia Services, S.C.
March 29, 1999
Page 2
2. DUE DILIGENCE. The Buyer has commenced, and intends to continue, its
due diligence investigation of the Seller.
3. CONDITIONS TO PROPOSED TRANSACTION. The Definitive Agreement will
provide that the proposed transaction will be subject to such representations,
warranties, terms and conditions as are customary in transactions involving the
acquisition of assets similar to the Assets in a manner contemplated by the
Definitive Agreement.
4. PURCHASE PRICE. Subject to any adjustments contained in the
Definitive Agreement, Xxxxx agrees to purchase the Assets for consideration
equal to (i) 580,000 shares of the Buyer's Common Stock, and (ii) $200,000 in
cash payable in the amount of $100,000 on the Closing Date and $100,000 one year
after the Closing Date, and (iii) options granted to each of Xxxx Xxxxxxx
Grandizo and Xxxxxxxx Xxxxxxxxx to purchase 25,000 shares of Company Common
Stock.
5. CLOSING DATE. The Buyer and the Seller intend to consummate the
Definitive Agreement on April 30, 1999 or as soon thereafter as practicable.
PART II. - BINDING PROVISIONS
Upon execution by the Seller of this Letter, the following paragraphs of
this Letter (collectively, the "Binding Provisions") will constitute the legally
binding and enforceable agreement of Buyer and the Seller.
A. NONBINDING PROVISIONS NOT ENFORCEABLE. The Nonbinding Provisions do
not create or constitute any legally binding obligations between Buyer and the
Seller, and if the Definitive Agreement is not executed and delivered for any
reason, no party to this Letter shall have any liability to any other party
arising from the Nonbinding Provisions.
B. DEFINITIVE AGREEMENT. Buyer and its counsel shall be responsible for
preparing the initial draft of the Definitive Agreement. Buyer and the Seller
shall negotiate in good faith to arrive at a mutually acceptable Definitive
Agreement for approval, execution and delivery on the earliest reasonably
practicable date. The Definitive Agreement and this Letter of Intent shall be
governed by the provisions of Texas law.
C. ACCESS. The Seller shall provide Buyer complete access to the
Seller's books, records and business facilities and shall cause the directors,
employees, accountants, and other agents of the Seller (collectively,
"Representatives") to cooperate fully with Buyer and Xxxxx's due diligence
investigation of the Seller's business activities.
Sinergia Services, S.C.
March 29, 1999
Page 3
D. EXCLUSIVE DEALING. For a period of thirty (30) days after execution
of this Letter by the Seller (the "Exclusivity Period"), the Seller shall not
directly or indirectly, through any Representative or otherwise, solicit or
entertain offers from, or negotiate with any party involving the acquisition of
the Seller or the Assets.
E. CONDUCT OF BUSINESS. Until the Definitive Agreement has been duly
executed and delivered by all of the parties or the Binding Provisions have been
terminated pursuant to this Letter, the Seller shall conduct its business only
in the ordinary course, and shall not engage in any extraordinary transactions
without Xxxxx's prior consent.
F. COSTS. Buyer and the Seller shall be responsible for and shall bear
all of their own costs and expenses incurred in connection with the proposed
transaction, including expenses of its Representatives, incurred at any time in
connection with pursuing or consummating the proposed transaction.
G. TERMINATION. The Binding Provisions may be terminated:
(i) by mutual written consent of Xxxxx and Seller, or
(ii) upon written notice by any party to the other party if the
Definitive Agreement has not been executed by April 15, 1999;
(iii) upon ten (10) days written notice by any party to the other
party if the Closing does not occur within sixty (60) days of
the date hereof, unless such failure to close is the result of
the actions or inactions of such terminating party; or
(iv) by the failure of the acquisition of Arianne, Co. by the Buyer
to be consummated;
provided, however, that the termination of the Binding Provisions shall not
affect the liability of a party for breach of any of the Binding Provisions
prior to the termination. Upon termination of the Binding Provisions, the
parties shall have no further obligations hereunder.
H. CONFIDENTIALITY. In consideration of the mutual promises herein made,
Xxxxx and the Seller hereby agree to keep all information concerning this Letter
and the transaction contemplated thereby strictly confidential.
Sinergia Services, S.C.
March 29, 1999
Page 4
Please sign and date this Letter in the space provided below to confirm the
mutual agreements set forth in the Binding Provisions and return a signed copy
to the undersigned.
Very truly yours,
ONE COMMERCE CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Its: President
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ACKNOWLEDGED AND AGREED,
intending to be legally bound hereby,
as to the Binding Provisions:
SINERGIA SERVICIOS, S.C.
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
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Title: President
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