EX-10.4
SHARE EXCHANGE AGREEMENT
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (this "Agreement") is entered into
as of June 10, 2005 by and between World Am, Inc., a Nevada
corporation ("WDAM"), on the one hand, and Senz-It, Inc., a California
corporation ("Senz-It"), and the shareholders of Senz-It identified on
the signature page hereof (the "Shareholders"), on the other hand.
Each of WDAM, Senz-It, and the Shareholders may be referred to as a
"Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Shareholders are the owners of 100% of the issued
and outstanding shares of common stock of Senz-It as set forth in
Exhibit A (the "Senz-It Shares");
WHEREAS, WDAM desires to purchase from the Shareholders, and the
Shareholders desire to sell to WDAM, all the Senz-It Shares in
accordance with the provisions of this Agreement.
NOW, THEREFORE, in consideration of the premises and respective
mutual agreements, covenants, representations and warranties contained
herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
AGREEMENTS
1. Purchase and Sale. At the Closing, subject to the terms and
conditions contained in this Agreement, and on the basis of the
representations, warranties and agreements herein contained, the
Shareholders shall sell to WDAM, and WDAM shall purchase from the
Shareholders, the Senz-It Shares.
2. Purchase Price. As consideration for the purchase of the Senz-It
Shares, WDAM shall issue to the Shareholders, as set forth in Exhibit
A, a warrant to purchase a total of Twelve Million (12,000,000) shares
of WDAM common stock (the "WDAM Warrant"), a copy of which is attached
hereto as Exhibit B, and Fifty Five (55) shares of WDAM Series B
Preferred Stock, the rights, privileges, and preferences of which are
set forth in the Restated Certificate of Designation (the "Series B
Preferred Stock Certificate of Designation") in Exhibit C attached
hereto and made a part hereof (the "WDAM Preferred Shares" and,
together with the WDAM Warrant and the shares of WDAM common stock
underlying the exercise of the WDAM Warrant (the "WDAM Common
Shares"), the "WDAM Securities").
3. Closing. The closing of the sale and purchase of the Senz-It
Shares (the "Closing") shall take place on August 5, 2005 at the law
offices of Xxxx X. Tow, 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx Xxxxx,
XX 00000, or at such other date, time and place as may be agreed upon
in writing by the parties hereto, but not later than August 31, 2005
(the" Termination Date"). The date of the Closing is sometimes herein
referred to as the "Closing Date."
3.1. Items to be Delivered Immediately Prior to or at
Closing. At the Closing:
A. The Shareholders shall deliver to WDAM:
(i) the Senz-It Shares, fully paid and non-assessable and
subject to no liens, security interests, pledges,
encumbrances, charges, restrictions, demands or claims in
any other party whatsoever, except as set forth in the
legend on the certificate(s), which legend shall provide
substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY
STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF FOR A
PERIOD OF ONE YEAR FROM THE ISSUANCE THEREOF EXCEPT (i)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT AND ANY APPLICABLE STATE LAWS OR (ii) UPON THE
EXPRESS WRITTEN AGREEMENT OF THE COMPANY AND
COMPLIANCE, TO THE EXTENT APPLICABLE, WITH RULE 144
UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT
RELATING TO THE DISPOSITION OF SECURITIES).
B. WDAM shall deliver to the Shareholders:
(i) the WDAM Warrant and the WDAM Preferred Shares, in
amounts and issued as set forth in Exhibit A, fully paid and
non-assessable and subject to no liens, security interests,
pledges, encumbrances, charges, restrictions, demands or
claims in any other party whatsoever, except as set forth in
the legend on the certificate(s) substantially as set forth
in Section 3.1(A).
C. WDAM shall deliver to Senz-It:
(i) written confirmation of the approval of the herein
described transactions by WDAM's Board of Directors;
(ii) written confirmation of the approval of the herein
described transactions by WDAM's shareholders;
(iii) an officers certificate, executed by the President
and Secretary of WDAM, in the form attached hereto as
Exhibit D;
(iv) any exhibits to this Agreement not delivered as of the
date hereof;
(v) a letter from WDAM legal counsel regarding pending
litigation involving WDAM which sets forth the case
strategy, timeline, and ultimate estimated cost of each case
pending. This should also include any case(s) that may be
contemplated but not yet filed by or against WDAM, and an
estimate of the ultimate "worst case" and "likely" total
liability resultant from each such case or claim;
(vi) net present value estimate of the Intellectual
Property (as defined in Section 4.10) of Senz-It, to be
prepared by Spartan Securities or such other third party as
agreed by the Parties.
X. Xxxx-It shall deliver to WDAM:
(i) written confirmation of the approval of the herein
described transactions by Senz-It's Board of Directors;
(ii) written confirmation of the approval of the herein
described transactions by Senz-It's shareholders;
(iii) an officers certificate, executed by the President
and Secretary of Senz-It, in the form attached hereto as
Exhibit E;
(iv) any exhibits to this Agreement not delivered as of the
date hereof.
4. Representations and Warranties of Senz-It. To induce WDAM to
enter into this Agreement and to consummate the transactions
contemplated hereby, Senz-It represents and warrants as of the date
hereof and as of the Closing, as follows:
4.1. Corporate Status. Senz-It is a corporation duly organized,
validly existing and in good standing under the Laws of the State of
California and is qualified to do business in any jurisdiction where
it is required to be so qualified. The articles and bylaws of Senz-It
that have been or will be delivered to WDAM are current, correct and
complete.
4.2. Authorization. Senz-It has the requisite power and authority
to execute and deliver this Agreement and to perform the transactions
hereunder. This Agreement, and all of the exhibits attached hereto,
constitutes the legal, valid and binding obligation of Senz-It.
4.3. Consents and Approvals. Except for the filings, permits,
authorizations, consents and approvals under federal and/or state
securities laws, and applicable stock exchange regulations which may
be applicable, neither the execution and delivery by Senz-It of this
Agreement, nor the performance by it of the transactions contemplated
hereby, require any filing, consent or approval.
4.4. Capitalization. The authorized capital stock of Senz-It
consists of 1,000,000 shares of common stock, no par value, of which
1,000,000 shares are issued and outstanding.
4.5. Books and Records. Senz-It keeps its books, records and
accounts (including, without limitation, those kept for financial
reporting purposes and for tax purposes) in accordance with good
business practice and in sufficient detail to reflect the transactions
and dispositions of their assets, liabilities and equities. The minute
books of Senz-It contain records of their shareholders' and directors'
meetings and of action taken by such shareholders and directors. The
meetings of directors and shareholders referred to in such minute
books were duly called and held, and the resolutions appearing in such
minute books were duly adopted. The signatures appearing on all
documents contained in such minute books are the true signatures of
the persons purporting to have signed the same.
4.6. Financial Statements; Contracts. Attached hereto as Exhibit
F is an income statement and a balance sheet as of June 30, 2005 and
for the quarter then ended. Attached hereto as Exhibit G is a list of
all material contracts to which Senz-It is a party or obligated as of
the Closing Date, and Senz-It hereby represents and warrants that
there are no other material contracts or agreements in existence as of
the Closing Date.
4.7. Taxes.
A. All taxes, assessments, fees, penalties, interest and other
governmental charges with respect to Senz-It which have become
due and payable on the date hereof have been paid in full or
adequately reserved against by Senz-It, (including without
limitation, income, property, sales, use, franchise, capital
stock, excise, added value, employees' income withholding, social
security and unemployment taxes), and all interest and penalties
thereon with respect to the periods then ended and for all
periods thereto;
B. There are no agreements, waivers or other arrangements
providing for an extension of time with respect to the assessment
of any tax or deficiency against Senz-It, nor are there any
actions, suits, proceedings, investigations or claims now pending
against Senz-It, nor are there any actions, suits, proceedings,
investigations or claims now pending against Senz-It in respect
of any tax or assessment, or any matters under discussion with
any federal, state, local or foreign authority relating to any
taxes or assessments, or any claims for additional taxes or
assessments asserted by any such authority, and there is no basis
for the assertion of any additional taxes or assessments against
Senz-It; and
C. The consummation of the transactions contemplated by this
Agreement will not result in the imposition of any additional
taxes on or assessments against Senz-It.
4.8. Subsidiaries. Senz-It does not own, directly or indirectly,
any interest or investment (whether equity or debt) in any
corporation, partnership, limited liability company, trust, joint
venture or other legal entity.
4.9. Legal Proceedings and Compliance with Law. There is no
litigation that is pending or, to Senz-It's knowledge, threatened
against Senz-It. To Senz-It's knowledge, there has been no default
under any laws applicable to Senz-It, Senz-It has not received any
notices from any governmental entity regarding any alleged defaults
under any laws, and there has been no default with respect to any
court order applicable to Senz-It.
4.10. Intellectual Property. Senz-It has good and valid title to
and ownership of all intellectual property (defined herein as trade
marks, trade names or copyrights, patents, domestic or foreign,
collectively the "Intellectual Property") necessary for its business
and operations (as now conducted and as proposed to be conducted).
Other than as set forth in Exhibit F, there are no outstanding
options, licenses or agreements of any kind to which Senz-It is a
party or by which it is bound relating to any Intellectual Property,
whether owned by Senz-It or another person. To the knowledge of Senz-
It, the business of Senz-It as formerly and presently conducted did
not and does not conflict with or infringe upon any Intellectual
Property right owned or claimed by another.
4.11. Accuracy of Information. To Senz-It's knowledge, no
representation or warranty by Senz-It made herein contains any untrue
statement of a material fact or omits to state any material fact
necessary in order to make the statements contained herein not
misleading in light of the circumstances under which such statements
were made.
5. Representations and Warranties of WDAM. To induce Senz-It and the
Shareholders to enter into this Agreement and to consummate the
transactions contemplated hereby, WDAM represents and warrants as of
the date hereof and as of the Closing, as follows:
5.1. Corporate Status. WDAM is a corporation duly organized,
validly existing and in good standing under the Laws of the State of
Nevada and is qualified to do business in any jurisdiction where it is
required to be so qualified. The articles and bylaws of WDAM that have
been delivered to Senz-It as of the date hereof are current, correct
and complete.
5.2. Authorization. WDAM has the requisite power and authority to
execute and deliver this Agreement and to perform the transactions
hereunder. This Agreement, and all of the exhibits attached hereto,
constitutes the legal, valid and binding obligation of WDAM.
5.3. Consents and Approvals. Except for the filings, permits,
authorizations, consents and approvals under federal and/or state
securities laws, and applicable stock exchange regulations which may
be applicable, neither the execution and delivery by WDAM of this
Agreement, nor the performance by it of the transactions contemplated
hereby, require any filing, consent or approval.
5.4. Capitalization. The authorized capital stock of WDAM
consists of 1,500,000,000 shares of common stock, par value $0.0001,
and 80,000,000 shares of preferred stock, par value $0.0001, of which
17,886,966 and 1,370* shares, respectively, are issued and outstanding
(*the 1,370 shares of Class A preferred stock will not become
outstanding until a contractual triggering event occurs). Of the
preferred shares authorized, 40,000,000 have been designated as Class
A and 55 have been designated as Class B.
5.5. Books and Records. WDAM keeps its books, records and
accounts (including, without limitation, those kept for financial
reporting purposes and for tax purposes) in accordance with good
business practice and in sufficient detail to reflect the transactions
and dispositions of their assets, liabilities and equities. The minute
books of WDAM contain records of their shareholders' and directors'
meetings and of action taken by such shareholders and directors. The
meetings of directors and shareholders referred to in such minute
books were duly called and held, and the resolutions appearing in such
minute books were duly adopted. The signatures appearing on all
documents contained in such minute books are the true signatures of
the persons purporting to have signed the same.
5.6. Financial Statements; Contracts. WDAM hereby represents and
warrants that the financial statements included in its filings with
the Securities and Exchange Commission are complete and accurately
represent its current financial condition. Attached hereto as Exhibit
H is a list of all material contracts to which WDAM is a party or
obligated as of the Closing Date which are not included in its filings
with the SEC, and WDAM hereby represents and warrants that there are
no other material contracts or agreements in existence as of the
Closing Date.
5.7. Taxes.
A. Except as set forth in Schedule 5.7, all taxes, assessments,
fees, penalties, interest and other governmental charges with
respect to WDAM which have become due and payable on the date
hereof have been paid in full or adequately reserved against by
WDAM (including without limitation, income, property, sales, use,
franchise, capital stock, excise, added value, employees' income
withholding, social security and unemployment taxes), and all
interest and penalties thereon with respect to the periods then
ended and for all periods thereto;
B. There are no agreements, waivers or other arrangements
providing for an extension of time with respect to the assessment
of any tax or deficiency against WDAM, nor are there any actions,
suits, proceedings, investigations or claims now pending against
WDAM, nor are there any actions, suits, proceedings,
investigations or claims now pending against WDAM in respect of
any tax or assessment, or any matters under discussion with any
federal, state, local or foreign authority relating to any taxes
or assessments, or any claims for additional taxes or assessments
asserted by any such authority, and there is no basis for the
assertion of any additional taxes or assessments against WDAM ;
and
C. The consummation of the transactions contemplated by this
Agreement will not result in the imposition of any additional
taxes on or assessments against WDAM.
5.8. Subsidiaries. WDAM currently has two (2) subsidiaries,
namely Isotec, Inc., a Colorado corporation, and Technology
Development International, Inc., a Colorado corporation.
5.9. Legal Proceedings and Compliance with Law. Except as set
forth in Schedule 5.9, there is no litigation that is pending or, to
WDAM's knowledge, threatened against WDAM. To WDAM's knowledge, there
has been no default under any laws applicable to WDAM, WDAM has not
received any notices from any governmental entity regarding any
alleged defaults under any laws, and there has been no default with
respect to any court order applicable to WDAM.
5.10. Intellectual Property. WDAM has good and valid title to and
ownership of all Intellectual Property necessary for its business and
operations (as now conducted and as proposed to be conducted). Other
than as set forth in Exhibit H, there are no outstanding options,
licenses or agreements of any kind to which WDAM is a party or by
which it is bound relating to any Intellectual Property, whether owned
by WDAM or another person. To the knowledge of WDAM, the business of
WDAM as formerly and presently conducted did not and does not conflict
with or infringe upon any Intellectual Property right owned or claimed
by another.
5.11. Accuracy of Information. To WDAM's knowledge, no
representation or warranty by WDAM made herein contains any untrue
statement of a material fact or omits to state any material fact
necessary in order to make the statements contained herein not
misleading in light of the circumstances under which such statements
were made.
6. Covenants of Senz-It. To induce WDAM to enter into this Agreement
and to consummate the transactions contemplated hereby, and without
limiting any covenant, agreement, representation or warranty made,
Senz-It covenants and agrees as follows:
6.1. Conduct of the Business. Except as contemplated or otherwise
consented to by WDAM in writing, after the date of this Agreement and
until the date of Closing, Senz-It shall carry on its business in the
ordinary course.
6.2. Access to Information. From the date of this Agreement to
the Closing Date, Senz-It shall give to WDAM and its officers,
employees, counsel, accountants and other representatives access to
and the right to inspect, during normal business hours, all of the
assets, records, contracts and other documents relating to Senz-It as
the other party may reasonably request. WDAM shall not use such
information for purposes other than in connection with the
transactions contemplated by this Agreement and shall otherwise hold
such information in confidence until such time as such information
otherwise becomes publicly available and will sign such standard and
customary non-disclosure agreements as are reasonably requested by
Senz-It.
6.3. No Solicitation. From and after the date hereof until the
Termination Date, Senz-It will not, and will not authorize or permit
any Senz-It representatives to, directly or indirectly, solicit or
initiate (including by way of furnishing information) or take any
other action to facilitate knowingly any inquiries or the making of
any proposal that constitutes or may reasonably be expected to lead to
an acquisition proposal from any person, or engage in any discussion
or negotiations relating thereto or accept any acquisition proposal.
6.4. Delivery of Financial Statements. Senz-It will use its best
efforts to deliver to WDAM audited financial statements as of June 30,
2005 and for period from inception to the date then ended, audited by
a firm acceptable to WDAM, prior to the date which is sixty (60) days
following the Closing.
6.5. Required SEC Filings. Senz-It will use its best efforts to
ensure that the Shareholders prepare and timely file all filings
required under Section 16 and Rule 13d-1 of the Securities Exchange
Act of 1934.
7. Covenants of WDAM. To induce Senz-It and the Shareholders to enter
into this Agreement and to consummate the transactions contemplated
hereby, and without limiting any covenant, agreement, representation
or warranty made, WDAM covenants and agrees as follows:
7.1. Conduct of the Business. Except as contemplated or otherwise
consented to by Senz-It in writing, after the date of this Agreement
and until the date of Closing, WDAM shall carry on its business in the
ordinary course.
7.2. Access to Information. From the date of this Agreement to
the Closing Date, WDAM shall give to Senz-It and the Shareholders, and
each of their officers, employees, counsel, accountants and other
representatives access to and the right to inspect, during normal
business hours, all of the assets, records, contracts and other
documents relating to WDAM as the other party may reasonably request.
Senz-It and the Shareholders shall not use such information for
purposes other than in connection with the transactions contemplated
by this Agreement and shall otherwise hold such information in
confidence until such time as such information otherwise becomes
publicly available and will sign such standard and customary non-
disclosure agreements as are reasonably requested by WDAM.
7.3. No Solicitation. From and after the date hereof until the
Termination Date, WDAM will not, and will not authorize or permit any
WDAM representatives to, directly or indirectly, solicit or initiate
(including by way of furnishing information) or take any other action
to facilitate knowingly any inquiries or the making of any proposal
that constitutes or may reasonably be expected to lead to an
acquisition proposal from any person, or engage in any discussion or
negotiations relating thereto or accept any acquisition proposal.
7.4. Post-Closing Funding Obligations of WDAM. Following the
Closing Date, WDAM shall deposit into the bank account of Senz-It, for
Senz-It's use as determined by the Senz-It Board of Directors, a total
of $7.5 million as set forth in the funding schedule attached hereto
as Exhibit I.
7.5. Appointments to the Board of Directors. Beginning with the
Closing Date, and continuing for so long as any of the WDAM Preferred
Shares shall remain outstanding, the holders of the WDAM Preferred
Shares shall have the right to appoint a minimum of three (3) members
to the WDAM Board of Directors, as more fully set forth in the Series
B Preferred Stock Certificate of Designation.
7.6. Filing of Form 8-K. WDAM agrees to timely file all Current
Reports on Form 8-K as required by the Securities and Exchange
Commission, as more fully set forth in Exhibit J.
7.7. Press Release. WDAM agrees to prepare and release a press
release concerning the transactions contemplated by this Agreement, as
more fully set forth in Exhibit K.
7.8. Shareholder Meeting Materials. WDAM agrees to timely
prepare, file with the Securities and Exchange Commission, and deliver
to its shareholders, materials necessary to obtain approval of the
transactions contemplated by this Agreement, and to provide the
materials to Senz-It for its review prior thereto.
7.9. Directors and Officers Insurance. WDAM agrees to use its
best efforts to obtain a policy of Director and Officers insurance
with coverage of at least $3 million, within a reasonable time
following the Closing Date.
7.10. Acknowledgment of Shareholders Distribution. WDAM
acknowledges that the Shareholders intend to distribute some or all of
the WDAM Securities to their partners, at a time and in amounts to be
determined by the Shareholders in their sole discretion, and agrees to
use it best efforts to assist with the distribution thereof.
8. Mutual Covenants. Without limiting any covenant, agreement,
representation or warranty made, each of the parties covenants and
agrees as follows:
8.1. Fulfillment of Closing Conditions. At and prior to the
Closing, each party shall use commercially reasonable efforts to
fulfill, and to cause each other to fulfill, the conditions specified
in this Agreement to the extent that the fulfillment of such
conditions is within its or his control.
8.2. Disclosure of Certain Matters. Senz-It on the one hand, and
WDAM, on the other hand, shall give WDAM and Senz-It, respectively,
prompt notice of any event or development that occurs that (a) had it
existed or been known on the date hereof would have been required to
be disclosed by such party under this Agreement, (b) would cause any
of the representations and warranties of such party contained herein
to be inaccurate or otherwise misleading, except as contemplated by
the terms hereof, or (c) gives any such party any reason to believe
that any of the conditions set forth in this Agreement will not be
satisfied prior to the Termination Date.
8.3. Public Announcements. Senz-It and WDAM shall consult with
each other before issuing any press release or making any public
statement with respect to this Agreement and the transactions
contemplated hereby and, except as may be required by applicable law,
neither party shall issue any such press release or make any such
public statement without the consent of the other parties hereto.
8.4. Confidentiality. If the transactions contemplated hereby are
not consummated, each party shall treat all information obtained in
its investigation of the other party or any affiliate thereof, and not
otherwise known to them or already in the public domain, as
confidential and shall not use or otherwise disclose such information
to any third party and shall return to such other party or affiliate
all copies made by it or its representatives of confidential
information provided by such other party or affiliate.
9. Conditions Precedent. This Agreement, and the transactions
contemplated hereby, shall be subject to the following conditions
precedent:
9.1. The obligations of Senz-It and the Shareholders to deliver
the Senz-It Common Shares and to satisfy their other obligations
hereunder shall be subject to the fulfillment (or waiver by Senz-It
and the Shareholders), at or prior to the Closing, of the following
conditions, which WDAM agrees to use its best efforts to cause to be
fulfilled:
A. Representations and Warranties. The representations and
warranties of WDAM contained in this Agreement shall be true and
correct on the date hereof and (except to the extent such
representations and warranties speak as of an earlier date) shall
also be true and correct on and as of the Closing Date with the
same force and effect as if made on and as of the Closing Date.
B. Agreements, Conditions and Covenants. WDAM shall have
performed or complied with all agreements, conditions and
covenants required by this Agreement to be performed or complied
with by it on or before the Closing Date.
C. Legality. No Law or Court Order shall have been enacted,
entered, promulgated or enforced by any court or governmental
authority that is in effect and has the effect of making the
transactions contemplated by this Agreement illegal or otherwise
prohibiting the consummation of such purchase and sale.
D. Approval by WDAM Shareholders. The Closing shall be subject to
the approval of the transactions contemplated hereby by the
shareholders of WDAM.
9.2. The obligations of WDAM to pay the Purchase Price and to
satisfy their other obligations hereunder shall be subject to the
fulfillment (or waiver by WDAM), at or prior to the Closing, of the
following conditions, which Senz-It agrees to use its best efforts to
cause to be fulfilled:
A. Representations and Warranties. The representations and
warranties of Senz-It contained in this Agreement shall be true
and correct on the date hereof and (except to the extent such
representations and warranties speak as of an earlier date) shall
also be true and correct on and as of the Closing Date with the
same force and effect as if made on and as of the Closing Date.
B. Agreements, Conditions and Covenants. Senz-It shall have
performed or complied in all material respects with all
agreements, conditions and covenants required by this Agreement
to be performed or complied with by them on or before the Closing
Date.
C. Legality. No Law or Court Order shall have been enacted,
entered, promulgated or enforced by any court or governmental
authority that is in effect and has the effect of making the
transactions contemplated by this Agreement illegal or otherwise
prohibiting the consummation of such purchase and sale.
D. Approval by WDAM Shareholders. The Closing shall be subject to
the approval of the transactions contemplated hereby by the
shareholders of WDAM.
10. Termination.
10.1. Notwithstanding anything to the contrary contained in this
Agreement, this Agreement may be terminated and the transactions
contemplated hereby may be abandoned prior to the Closing Date only by
the mutual consent of all of the Parties. Following the Closing Date,
in the event the Closing does occur within ten (10) days of the
Closing Date, this Agreement may be terminated by either Party upon
delivery of written notice to the other Party.
10.2. If this Agreement is terminated pursuant to Section 10.1,
the agreements contained in Section 8 shall survive the termination
hereof and any party may pursue any legal or equitable remedies that
may be available if such termination is based on a breach of another
party.
11. General.
11.1. Expenses. Except as otherwise specifically provided for
herein, whether or not the transactions contemplated hereby are
consummated, each of the parties hereto shall bear the cost of all
fees and expenses relating to or arising from its compliance with the
various provisions of this Agreement and such party's covenants to be
performed hereunder, and except as otherwise specifically provided for
herein, each of the Parties hereto agrees to pay all of its own
expenses (including, without limitation, attorneys and accountants'
fees and printing expenses) incurred in connection with this
Agreement, the transactions contemplated hereby, the negotiations
leading to the same and the preparations made for carrying the same
into effect, and all such fees and expenses of the Parties hereto
shall be paid prior to Closing.
11.2. Notices. Any notice, request, instruction or other document
required by the terms of this Agreement, or deemed by any of the
Parties hereto to be desirable, to be given to any other Party hereto
shall be in writing and shall be delivered by facsimile or overnight
courier to the following addresses:
To Senz-It:
Senz-It, Inc.
0000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxx
Facsimile (000) 000-0000
with a copy to:
The Lebrecht Group, APLC
00000 Xxxxxxx Xxxxxxx, Xxxxx
000 Xxxxxx Xxxxx Xxxxxxxxx,
XX 00000 Attn: Xxxxx X.
Xxxxxxxx, Esq.
Facsimile (000) 000-0000
To WDAM:
World Am, Inc.
0000 X. 000xx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx
Facsimile (000) 000-0000
with a copy to:
Xxxx X. Tow & Associates
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxx X. Tow
Facsimile (000) 000-0000
The persons and addresses set forth above may be changed from time to
time by a notice sent as aforesaid. Notice shall be conclusively
deemed given at the time of delivery if made during normal business
hours, otherwise notice shall be deemed given on the next business
day.
11.3. Entire Agreement. This Agreement, together with the
schedules and exhibits hereto, sets forth the entire agreement and
understanding of the Parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements
and understandings related to the subject matter hereof. No
understanding, promise, inducement, statement of intention,
representation, warranty, covenant or condition, written or oral,
express or implied, whether by statute or otherwise, has been made by
any Party hereto which is not embodied in this Agreement, or exhibits
hereto or the written statements, certificates, or other documents
delivered pursuant hereto or in connection with the transactions
contemplated hereby, and no Party hereto shall be bound by or liable
for any alleged understanding, promise, inducement, statement,
representation, warranty, covenant or condition not so set forth.
11.4. Survival of Representations. All statements of fact
(including financial statements) contained in the schedules, the
exhibits, the certificates or any other instrument delivered by or on
behalf of the Parties hereto, or in connection with the transactions
contemplated hereby, shall be deemed representations and warranties by
the respective Party hereunder. All representations, warranties,
agreements, and covenants hereunder shall survive the Closing and
remain effective regardless of any investigation or audit at any time
made by or on behalf of the Parties or of any information a Party may
have in respect thereto. Consummation of the transactions contemplated
hereby shall not be deemed or construed to be a waiver of any right or
remedy possessed by any Party hereto, notwithstanding that such Party
knew or should have known at the time of Closing that such right or
remedy existed.
11.5. Incorporated by Reference. All documents (including,
without limitation, all financial statements) delivered as part hereof
or incident hereto are incorporated as a part of this Agreement by
reference.
11.6. Remedies Cumulative. No remedy herein conferred upon any
Party is intended to be exclusive of any other remedy and each and
every such remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law
or in equity or by statute or otherwise.
11.7. Execution of Additional Documents. Each Party hereto shall
make, execute, acknowledge and deliver such other instruments and
documents, and take all such other actions as may be reasonably
required in order to effectuate the purposes of this Agreement and to
consummate the transactions contemplated hereby.
11.8. Finders' and Related Fees. Each of the Parties hereto is
responsible for, and shall indemnify the other against, any claim by
any third party to a fee, commission, bonus or other remuneration
arising by reason of any services alleged to have been rendered to or
at the instance of said Party to this Agreement with respect to this
Agreement or to any of the transactions contemplated hereby. The
parties acknowledge that Think Equity, Inc. has been engaged by WDAM
to perform certain corporate development services for WDAM and that
consummation of this Agreement obligates WDAM to compensate Think
Equity, Inc. Both Parties have reviewed and agreed to the terms of the
corporate development agreement with Think Equity, Inc.
11.9. Governing Law. This Agreement has been negotiated and
executed in the State of California and shall be construed and
enforced in accordance with the laws of such state.
11.10. Forum. Each of the Parties hereto agrees that any action
or suit which may be brought by any Party hereto against any other
Party hereto in connection with this Agreement or the transactions
contemplated hereby may be brought only in a federal or state court in
Orange County, California.
11.11. Attorneys' Fees. Except as otherwise provided herein, if a
dispute should arise between the Parties including, but not limited to
arbitration, the prevailing Party shall be reimbursed by the
nonprevailing Party for all reasonable expenses incurred in resolving
such dispute, including reasonable attorneys' fees exclusive of such
amount of attorneys' fees as shall be a premium for result or for risk
of loss under a contingency fee arrangement.
11.12. Binding Effect and Assignment. This Agreement shall inure
to the benefit of and be binding upon the Parties hereto and their
respective heirs, executors, administrators, legal representatives and
assigns.
11.13. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. In making
proof of this Agreement, it shall not be necessary to produce or
account for more than one such counterpart.
IN WITNESS WHEREOF, the Parties have executed this Agreement as
of the date first written hereinabove.
"Senz-It" "WDAM"
Senz-It, Inc., World Am, Inc.,
a California corporation a Nevada corporation
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
Xxxx Xxxxxx, President Xxxxx X. Xxxxxxxxx, President
"Shareholders"
SUTI Holdings, L.P.
By: Select University Technologies, Inc.
Its: General Partner
By: /s/ Xxxxxxxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxxx, President
Exhibit A
Senz-It Shares Common Shares No. of WDAM
No. of WDAM Underlying Preferred Shares
Name WDAM Warrant
No. of Senz-
It Shares
SUTI Holdings, LP 1,000,000 12,000,000 55
Exhibit I
WDAM Funding Schedule
A. A total of Four Million Dollars ($4,000,000) is required to be
funded by June 30, 2006. Senz-It will commence operations when at
least One Million Two Hundred Thousand ($1,200,000) is available for
its use, but not earlier than September 2, 2005.
B. In addition to the amounts above, a total of Three Million
Five Hundred Thousand Dollars ($3,500,000) is required to be funded at
the rate of at least Five Hundred Eighty Thousand Dollars ($580,000)
per month for six (6) consecutive months beginning on July 30, 2006.
C. Any funds raised from grants or other sources (other than WDAM
financing transactions) will be credited toward the above funding
requirements at the rate of $0.50 for each $1.00 of "Net Funding."
"Net Funding" shall be defined for these purposes as actual cash or
cash equivalents available for Senz-It use, including goods and
services rendered in lieu of cash payment for Senz-It.
