Exhibit 10.40
Letter of Intent
This Letter of Intent ("LOI") made this 15th day of May, in the year 2002 by and
between: CEO America, Inc. a Delaware Corporation, (CEO) and Schimatic Cash
Transactions Xxxxxxx.xxx, Inc., a Florida USA corporation with its head office
at 00000 Xxxxxx Xxxxx Xx. Xxxxx 000, Xxxxx Xxxxx, XX 00000. dba Smart Chip
Technologies, LLC ("SCTN").
CEO America Inc , for consideration (the "Consideration") as outlined below,
intend to arrange with SCTN for the joint exploitation through CEO of certain
Intellectual Property and related assets that are listed on Exhibit "A" attached
("Assets") of SCTN.
This letter shall also serve as an expression of the intention of CEO and SCTN
to proceed expeditiously to negotiate, draft and execute a definitive purchase
agreement (the "Agreements"). The Agreements, when executed, will reflect the
terms of this letter, along with such representations and warranties, covenants,
agreements and other terms and conditions as are typical of transactions of this
size and such additional terms and conditions as the parties may agree. The
parties to the Agreement shall include CEO and SCTN and their representatives
who, as agreed by both parties are necessary to complete the transaction. The
following is a summary of certain principal terms and conditions of the proposed
transaction:
1) Asset Conveyance
SCTN will convey to CEO, for the Consideration, the Assets listed on Exhibit "A"
attached as provided by SCTN, subject to an exclusive license retained by SCTN
as provided below. CEO America will acquire all of the assets free and clear of
any lien, claim or interest of any other party, except the exclusive license
retained by SCTN as provided below.
2) Sale and transfer of IP
The LOI is intended to establish the basic principles for the absolute
conveyance of SCTN intellectual properties included in the Assets to CEO, which
will own such intellectual properties, subject to an exclusive license back to
SCTN for all intellectual property. Intellectual property is defined to include
software and patents representing SCTN's loyalty solution (the "SCTN IP"). CEO
will however have the right to use the IP for its CREDITZ system in America, at
a licensing fee reflecting [xx]% discount from the normal rate that SCTN
regularly charges unaffiliated customers. Prior to the second payment paid to
SCTN by CEO there will be a mutually agreed upon license agreement extended to
CEO.
The SCTN IP and Patent will be placed in a mutually satisfactory Escrow Trust
Account upon signing of this agreement, and will be transferred to CEO on or
before full payment of the Five Hundred Thousand ($500,000) Consideration
described below and the execution of a mutually acceptable exclusive license
agreement to SCTN.
3) Consideration
For the purposes of this letter of agreement and all future agreements all
consideration is in US dollars.
CEO will pay SCTN ($500,000) Five Hundred Thousand as follows: ($150,000) One
Hundred and Fifty Thousand, upon signing this agreement (see due diligence);
($350,000) Three Hundred and Fifty Thousand, on or about 21 days following
signing this agreement.
SCTN will submit a list of expenses to CEO for review and payment. All of which
will be administered in the following manner:
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Prior to due diligence CEO will deposit in an escrow account arranged for the
purpose of this transaction, in an approved money center bank, the amount of One
Hundred and Fifty Thousand dollars ($150,000), to be applied to the total
Consideration to SCTN. CEO America will deposit an additional Three Hundred
Fifty Thousand dollars ($350,000) on or about 21 days of the signing of this
Letter into the same escrow account.
The escrow agent will have express written instructions to pay certain expenses,
not to exceed Two Hundred Fifty Thousand dollars ($250,000), approved by CEO.
The remaining Two Hundred Fifty Thousand dollars ($250,000) or more will be used
as necessary for negotiating settlement of the SCTN tax liability, and the
remainder will be released to SCTN upon approval of a payment schedule by the
tax authorities.
In addition, CEO understands that certain Note Holders of SCTN, representing
approximately $2 million dollars in outstanding liability to SCTN, have agreed
or will agree that should this Letter of Intent be accepted by the board of
SCTN, these note holders will agree to convert this outstanding liability to a
non-preferred equity position.
As additional Consideration. Both parties shall issue and deliver to the other
that number of shares of its common stock that, when issued, shall issue 20% of
the common stock of the respective company, on a fully diluted basis.
4) Due Diligence
The above item (3) is contingent on up to two days of due diligence within 10
days of acceptance of the Letter of Intent. CEO will conduct its due diligence
with the cooperation of the SCTN management and board. In a reasonable manner
CEO will be allowed to examine all of the pertinent data and information related
to the Acquired Assets, including but not limited to:
(a) Evaluation and Verification Human Relations and on Insurance
Coverage
(b) Patent documentation and related information
(c) Complete shareholder list
(d) Review all intellectual Property, Patent and related software
and hardware with all related corporate advisors
(e) Compete list of creditors including note holders and executed
Promissory and/or Convertible Notes
(f) Current expenses and projected expenses for the next two
months
(g) Accounting of deferred compensation.
Mutual due diligence of CEO America Inc. will not be unreasonable withheld by
CEO
5) Tax liability resolution
CEO will participate, as the lead in the negotiation of settling the balance of
SCTN's tax liability. Any remaining amount will become a joint liability of CEO
and SCTN after 120 days of this agreement regardless of these negotiations.
Except to the extent CEO expressly assumes liabilities in writing, CEO shall not
assume any liabilities contingent or otherwise, known or unknown, arising from
or related to the operation or activities of SCTN, its directors, officers,
agents, or otherwise. SCTN shall defend, indemnify and hold CEO harmless with
respect to all such liabilities and in connection with any representations,
warranties, covenants and agreements contained in the Agreement.
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6) Other investments and royalty considerations
CEO commits to include in it's current financing plan $5 million dollars
specifically directed to SCTN, budgeted by the board as may be required, subject
to review of a share reverse split of SCTN and all regulatory issues settled and
in good standing, the intention of which is to position the companies for a
possible future merger beneficial to both parties.
The $5 million raised by CEO will be directed to SCTN as budgeted by the board
of SCTN, paid to SCTN at the rate of Five Hundred Thousand dollars ($500,000)
every sixty (60) to ninety (90) days, or as required. Not less than 50% will go
directly to the technology development costs.
There will be a royalty guarantee to CEO of $500,000 after 2nd year and $1
Million for the third and $2 Million every subsequent year, which will be
calculated and deducted from the negotiated royalty that CEO America Inc. is
required to pay under its License agreement with SCTN. Should SCTN default CEO
will defer payment or exchange any outstanding amounts for shares in SCTN at
whatever the current price is at that time.
CEO will also include SCTN, wherever appropriate, as a participant, in contracts
and alliances of CEO. This will extend to include the current deployment plan of
CREDITZ in California and Houston, Texas.
The board will make available one seat on the board of SCTN to be mutually
agreed upon as to the most appropriate time to do so.
7) Conduct of Business
Following execution of this letter, SCTN agrees to (i) conduct its business as
it is presently conducted, (ii) maintain the information relating to the
acquired assets, (iii) not sell, dispose of, or disseminate any information
relating to the assets, or properties therein, except upon receipt of the
written consent of CEO.
8) Solicitation
Subject to SCTN's fiduciary obligations in general, neither SCTN nor their
respective employees, Agents, or other outside parties that may or may not be
related to the SCTN, will in any way solicit any competitive offers to acquire
the assets specified in this letter.
9) Compliance
Acquisition of the Acquired Assets complies with all Federal and State
Securities regulations. Should the CEO be required to "tender" interests of
individual investors who may have certain rights in the Acquired Assets, the
term of this letter shall be extended in order to complete the acquisition.
10) Fees and Costs
CEO and SCTN shall each individually be responsible for their respective costs
associated with the acquisition of the Acquired Assets, including any investment
banking, brokerage, consulting, legal, accounting or other fees or costs
arranged or incurred by such party in the course of facilitating and closing
this transaction.
11) Non-Disclosure
SCTN and CEO hereby agree not to disclose (except to their respective attorneys,
accountants, employees, officers or directors on a confidential and need-to-know
basis) any of the terms and conditions contained in this letter and/or the fact
that discussions are ongoing without the consent of the other parties unless
counsel to the disclosing party deems such disclosures required by law. SCTN and
CEO agree to consult with each other as to the form and substance of any press
release or any other public disclosure of the matters covered in this letter,
provided, that this shall not prohibit SCTN or CEO from making any disclosure
which its respective counsel deems required by law.
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12) Additional Conditions
This proposal and the transactions contemplated hereby are subject, among
others, to the following conditions (which can in the sole discretion of CEO be
waived): (a) all necessary corporate, regulatory or similar approvals, if any,
shall have been obtained; (b) there shall have been no material adverse change
in the acquired Assets other than those of which it has no control; (c) CEO
shall have completed its due diligence and be satisfied with the results, and,
if necessary, shall have reflected those results in the Agreement; (d) SCTN
shall have good and marketable title to the acquired Assets; and, (e) the
parties shall have signed the Agreement.
It is understood and agreed that this letter of intent is a summary of certain
principal terms of the proposal intended to be included in the Agreement and,
except for paragraphs 6, 7, 8, and 9, shall be non-binding on the parties.
Except as set forth in paragraphs 2(b), 6, 7 and 8, neither party shall be
required to take any further action, nor shall any liability attach, if either
party elects to discontinue negotiating with regard to the proposed transaction
before the Agreement is negotiated and executed.
13) Additional Conditions
Should CEO after its due diligence period not complete the transaction with
either the first and/or second payment on or before 21 days following acceptance
of this Letter, SCTN may option to repay CEO any payment in full plus any and
all legal costs incurred by CEO America Inc. upon which the IP and Patent shall
be returned to SCTN free and clear of any lien, claim or interest of any other
party. This agreement shall continue to be in force until such time as either
party notifies the other party in writing.
For further clarity, this does not give SCTN the right or option to change,
alter, cancel this agreement of any part thereof, except in the event where CEO
does not complete its 2nd payment to SCTN within 21 days following acceptance of
this letter.
This letter supercedes any and all prior correspondence, letters, or agreements
received between the parties. It is our desire to move expeditiously towards the
completion of this transaction on the basis of the terms and conditions
contained herein. To help accomplish this goal, if you are in agreement with the
foregoing, would you please indicate by signing and returning the attached copy
of this letter to the Undersigned. Nevertheless, in the event that a signed copy
of this letter is not received within 24 hours of the date of this letter, it
will be assumed that that there is no further in the terms of this letter and it
will be deemed automatically withdrawn.
Very truly yours,
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx,
President/CEO
CEO America, Inc.
Agreed to and Accepted this 17 day of May, 2002 by:
Signed by /s/ X. X. Xxxxx, Chairman & CEO
Authorized Signature of
Officer of Schimatic Cash Transactions Xxxxxxx.xxx, Inc
dba Smart Chip Technologies, LLC.
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