EX-10.1
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) a 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
No. of WDAM
Name Common Shares
No. of Senz- Underlying No. of WDAM
It Shares WDAM Warrant Preferred Shares
SUTI Holdings, LP 1,000,000 12,000,000 55
EXHIBIT B
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 EXCEPT
PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND
ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE 144
UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE
DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH
OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER,
THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE
STATE LAW IS AVAILABLE.
WARRANT
World Am, Inc.
(Incorporated under the laws of the State of Nevada)
THIS IS TO CERTIFY that, for value received, SUTI Holdings, LP,
or its assigns (the "Holder") is entitled, subject to the terms and
conditions set forth herein, to purchase from World Am, Inc., a
Nevada corporation (the "Company") an aggregate of Eighteen Million
(18,000,000) fully paid and nonassessable shares of common stock of
the Company (the "Warrant Securities") at the exercise price as set
forth below, subject to adjustment as provided in Section 3 below,
(the "Exercise Price"), upon payment by cashier's check or wire
transfer of the Exercise Price for such shares of the Common Stock to
the Company at the Company's offices. The Exercise Price for the
Warrant Securities shall be $0.0001 per share.
1. Exercisability. This Warrant may be exercised beginning on
date hereof and up to the date which is five (5) years thereafter
(the "Exercise Period"), by presentation and surrender hereof to the
Company of a notice of election to purchase duly executed and
accompanied by payment by check or wire transfer of the Exercise
Price, or exercised in accordance with Section 6 below.
2. Manner of Exercise. In case of the purchase of less than
all the Warrant Securities, at the request of the Holder the Company
shall cancel this Warrant upon the surrender hereof and shall execute
and deliver a new warrant of like tenor for the balance of the
Warrant Securities. Upon the exercise of this Warrant, the issuance
of certificates for securities, properties or rights underlying this
Warrant shall be made forthwith (and in any event within three (3)
business days thereafter) without charge to the Holder including,
without limitation, any tax that may be payable in respect of the
issuance thereof; provided, however, that the Company shall not be
required to pay any tax in respect of income or capital gain of the
Holder.
If and to the extent this Warrant is exercised, in whole or in
part, the Holder shall be entitled to receive a certificate or
certificates representing the Warrant Securities so purchased, upon
presentation and surrender to the Company of the form of election to
purchase attached hereto duly executed, and accompanied by payment of
the purchase price.
3. Adjustment in Number of Shares.
(A) Adjustment for Reclassifications. In case at any time
or from time to time after the issue date the holders of the Common
Stock of the Company (or any shares of stock or other securities at
the time receivable upon the exercise of this Warrant) shall have
received, or, on or after the record date fixed for the determination
of eligible stockholders, shall have become entitled to receive,
without payment therefore, other or additional stock or other
securities or property (including cash) by way of stock split, spin-
off, reclassification, combination of shares or similar corporate
rearrangement (exclusive of any stock dividend of its or any
subsidiary's capital stock), then and in each such case the Holder of
this Warrant, upon the exercise hereof as provided in Section 1,
shall be entitled to receive the amount of stock and other securities
and property which such Holder would hold on the date of such
exercise if on the issue date he had been the holder of record of the
number of shares of Common Stock of the Company called for on the
face of this Warrant and had thereafter, during the period from the
issue date, to and including the date of such exercise, retained such
shares and/or all other or additional stock and other securities and
property receivable by him as aforesaid during such period, giving
effect to all adjustments called for during such period. In the
event of any such adjustment, the Exercise Price shall be adjusted
proportionally.
(B) Adjustment for Reorganization, Consolidation, Merger.
In case of any reorganization of the Company (or any other
corporation the stock or other securities of which are at the time
receivable on the exercise of this Warrant) after the issue date, or
in case, after such date, the Company (or any such other corporation)
shall consolidate with or merge into another corporation or convey
all or substantially all of its assets to another corporation, then
and in each such case the Holder of this Warrant, upon the exercise
hereof as provided in Section 1 at any time after the consummation of
such reorganization, consolidation, merger or conveyance, shall be
entitled to receive, in lieu of the stock or other securities or
property to which such Holder would be entitled had the Holder
exercised this Warrant immediately prior thereto, all subject to
further adjustment as provided herein; in each such case, the terms
of this Warrant shall be applicable to the shares of stock or other
securities or property receivable upon the exercise of this Warrant
after such consummation.
4. No Requirement to Exercise. Nothing contained in this
Warrant shall be construed as requiring the Holder to exercise this
Warrant prior to or in connection with the effectiveness of a
registration statement.
5. No Stockholder Rights. Unless and until this Warrant is
exercised, this Warrant shall not entitle the Holder hereof to any
voting rights or other rights as a stockholder of the Company, or to
any other rights whatsoever except the rights herein expressed, and,
no dividends shall be payable or accrue in respect of this Warrant.
6. Cashless Exercise. In lieu of delivering the Exercise
Price in Cash, Holder, at his option, may instruct the Company to
retain, in payment of the Exercise Price, a number of the shares of
Common Stock (the "Payment Shares") equal to the quotient of the
aggregate Exercise Price of the Warrants then being exercised divided
by the Market Price of such Payment Shares as of the date of
exercise, and to deduct the number of Payment Shares from the shares
of Common Stock to be delivered to such holder. For purposes of this
Warrant, Market Price shall mean the closing bid price of the
Company's common stock on the trading day immediately before the
exercise date. Notwithstanding the above, this Section 6 shall only
be applicable provided that the Company is trading on a recognized
exchange on the date of exercise.
7. Exchange. This Warrant is exchangeable upon the surrender
hereof by the Holder to the Company for new warrants of like tenor
representing in the aggregate the right to purchase the number of
Warrant Securities purchasable hereunder, each of such new warrants
to represent the right to purchase such number of Warrant Securities
as shall be designated by the Holder at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant,
and, in case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to it and reimbursement to the company of all
reasonable expenses incidental thereto, and upon surrender and
cancellation hereof, if mutilated, the Company will make and deliver
a new warrant of like tenor and amount, in lieu hereof.
8. Elimination of Fractional Interests. The Company shall not
be required to issue certificates representing fractions of
securities upon the exercise of this Warrant, nor shall it be
required to issue scrip or pay cash in lieu of fractional interests.
All fractional interests shall be eliminated by rounding any fraction
up to the nearest whole number of securities, properties or rights
receivable upon exercise of this Warrant.
9. Reservation of Securities. The Company shall at all times
reserve and keep available out of its authorized shares of Common
Stock or other securities, solely for the purpose of issuance upon
the exercise of this Warrant, such number of shares of Common Stock
or other securities, properties or rights as shall be issuable upon
the exercise hereof. The Company covenants and agrees that, upon
exercise of this Warrant and payment of the Principal Value, all
shares of Common Stock and other securities issuable upon such
exercise shall be duly and validly issued, fully paid, non-assessable
and not subject to the preemptive rights of any stockholder.
10. Notices to Holder. If at any time prior to the expiration
of this Warrant or its exercise, any of the following events shall
occur:
(a) the Company shall take a record of the holders of any
class of its securities for the purpose of entitling them to
receive a dividend or distribution payable otherwise than in
cash, or a cash dividend or distribution payable otherwise than
out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the
books of the Company; or
(b) the Company shall offer to all the holders of a
class of its securities any additional shares of capital stock
of the Company or securities convertible into or exchangeable
for shares of capital stock of the Company, or any option or
warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation or
merger) or a sale of all or substantially all of its property,
assets and business as an entirety shall be proposed.
then, in any one or more said events, the Company shall give written
notice of such event to the Holder at least fifteen (15) days prior
to the date fixed as a record date or the date of closing the
transfer books for the determination of the stockholder entitled to
such dividend, distribution, convertible or exchangeable securities
or subscription rights, or entitled to vote on such proposed
dissolution, liquidation, winding up or sale. Such notice shall
specify such record date or the date of closing the transfer books,
as the case may be.
11. Transferability. This Warrant may be transferred or
assigned by the Holder without notice or approval by the Company.
12. Informational Requirements. The Company will transmit to
the Holder such information, documents and reports as are generally
distributed to stockholders of the Company concurrently with the
distribution thereof to such stockholders.
13. Notice. Notices to be given to the Company or the Holder
shall be deemed to have been sufficiently given if delivered
personally or sent by overnight courier or messenger, or by facsimile
transmission, to the last known address for each party.
14. Consent to Jurisdiction and Service. The Company consents
to the jurisdiction of any court of the State of California, County
of Orange, and of any federal court located in California, County of
Orange, in any action or proceeding arising out of or in connection
with this Warrant. The Company waives personal service of any
summons, complaint or other process in connection with any such
action or proceeding and agrees that service thereof may be made, by
certified mail directed to the Company at the location provided in
Section 13 hereof, or, in the alternative, in any other form or
manner permitted by law.
15. Successors. All the covenants and provisions of this
Warrant shall be binding upon and inure to the benefit of the
Company, the Holder and their respective legal representatives,
successors and assigns.
16. Attorneys Fees. In the event the Investors or any holder
hereof shall refer this Warrant to an attorney to enforce the terms
hereof, the Company agrees to pay all the costs and expenses incurred
in attempting or effecting collection hereunder, including reasonable
attorney's fees, whether or not suit is instituted.
17. Governing Law. THIS WARRANT SHALL BE GOVERNED, CONSTRUED
AND INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT
GIVING EFFECT TO THE RULES GOVERNING CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed by the signature of its President and to be delivered in
Newport Beach, California.
Dated: August 31, 2005 World Am, Inc.,
a Nevada corporation
By: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
Its: President
NOTICE OF EXERCISE
TO: World Am, Inc.
(1)The undersigned hereby elects to purchase ________
shares of the common stock of World Am, Inc., a Nevada corporation
(the "Company"), pursuant to the terms of the attached Warrant, and
tenders herewith payment of the exercise price in full, together with
all applicable transfer taxes, if any.
The undersigned hereby elects to purchase ________
shares of the common stock of the Company pursuant to the terms of
the net exercise provisions set forth in Section 6 of the attached
Warrant, and shall tender payment of all applicable transfer taxes,
if any.
(2) Please issue a certificate or certificates representing
said shares of the Company's common stock in the name of the
undersigned or in such other name as is specified below:
_____________________________
(Name)
_____________________________
_____________________________
(Address)
(Date)
(Signature)
(Print name)
EXHIBIT C
RESTATED
CERTIFICATE OF DESIGNATION
OF THE RIGHTS, PREFERENCES, PRIVILEGES
AND RESTRICTIONS, WHICH HAVE NOT BEEN SET
FORTH IN THE CERTIFICATE OF INCORPORATION
OR IN ANY AMENDMENT THERETO,
OF THE
CLASS B CONVERTIBLE PREFERRED STOCK
OF
WORLD AM, INC.
The undersigned, Xxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxxxx, do
hereby certify that:
A. They are the duly elected and acting President and
Secretary, respectively, of World Am, Inc., a Nevada corporation (the
"Company").
B. Pursuant to the Unanimous Written Consent of the Board of
Directors of the Company dated August 31, 2005, the Board of
Directors duly adopted the following resolutions:
WHEREAS, the Certificate of Incorporation of the Company
authorizes a class of stock designated as Preferred Stock, with a par
value of $0.0001 per share (the "Preferred Class"), comprising Eighty
Million (80,000,000) shares and provides that the Board of Directors
of the Company may fix the terms, including any dividend rights,
dividend rates, conversion rights, voting rights, rights and terms of
any redemption, redemption, redemption price or prices, and
liquidation preferences, if any, of the Preferred Class;
WHEREAS, as of the date of this Certificate of Designation, the
Company has authorized a total of Eighty Million (80,000,000) shares
of stock from the Preferred Class, Forty Million (40,000,000) of
which are designated as Class A Preferred Stock, and Forty Million
(40,000,000) of which are designated as Class B Preferred Stock;
WHEREAS, a Certificate of Designation was previously filed with
the Nevada Secretary of State on July 21, 2005, setting forth the
rights, preferences, privileges, restrictions, and other matters
relating to the Class A Preferred Stock;
WHEREAS, a Certificate of Designation was previously filed with
the Nevada Secretary of State on August 16, 2005, setting forth the
rights, preferences, privileges, restrictions, and other matters
relating to the Class B Preferred Stock;
WHEREAS, the Board of Directors believes it in the best
interests of the Company to restate in its entirety rights,
preferences, privileges, restrictions and other matters relating to
the Class B Preferred Stock as set forth herein;
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does
hereby fix and determine the rights, preferences, privileges,
restrictions and other matters relating do the Class B Convertible
Preferred Stock as follows:
1. Definitions. For purposes of this Certificate of
Designation, the following definitions shall apply:
1.1 "Available Funds and Assets" shall have the meaning
set forth in Section 3.
1.2 "Board" shall mean the Board of Directors of the
Company.
1.3 "Class B Convertible Preferred Stock" shall mean the
Class B Convertible Preferred Stock, $0.0001 par value per share, of
the Company.
1.4 "Company" shall mean World Am, Inc., a Nevada
corporation.
1.5 "Common Stock" shall mean the Common Stock,
$0.0001 par value per share, of the Company.
1.6 "Common Stock Dividend" shall mean a stock
dividend declared and paid on the Common Stock that is payable in
shares of Common Stock.
1.7 "Conversion Date" shall have the meaning set forth in
Section 4(b).
1.8 "Distribution" shall mean the transfer of cash or
property by the Company to one or more of its stockholders without
consideration, whether by dividend or otherwise (except a dividend in
shares of Company's stock).
1.9 "Exchange Agreement" shall have the meaning set forth
in Section 6.1.
1.10 "Material Adverse Effect" shall have the meaning set
forth in Section 6.1.
1.11 "Original Issue Date" shall mean the date on which
the first share of Class B Convertible Preferred Stock is issued by
the Company.
1.12 "Original Issue Price" shall mean $145,455 per share
for the Class B Convertible Preferred Stock.
1.13 "Senz-It" shall mean Senz-It, Inc., a California
corporation.
1.14 "Senz-It Shares" shall have the meaning set forth in
Section 6.2.
"Subsidiary" shall mean any corporation or limited liability company
of which at least fifty percent (50%) of the outstanding voting stock
or membership interests, as the case may be, is at the time owned
directly or indirectly by the Company or by one or more of such
subsidiary corporations:
2. Dividend Rights.
2.1 In each calendar year, the holders of the then
outstanding Class B Convertible Preferred Stock shall be entitled to
receive, when, as and if declared by the Board, out of any funds and
assets of the Company legally available therefore, noncumulative
dividends in an amount equal to any dividends or other Distribution
on the Common Stock in such calendar year (other than a Common Stock
Dividend). No dividends (other than a Common Stock Dividend) shall
be paid, and no Distribution shall be made, with respect to the
Common Stock unless dividends in such amount shall have been paid or
declared and set apart for payment to the holders of the Class B
Convertible Preferred Stock simultaneously. Dividends on the Class B
Convertible Preferred Stock shall not be mandatory or cumulative, and
no rights or interest shall accrue to the holders of the Class B
Convertible Preferred Stock by reason of the fact that the Company
shall fail to declare or pay dividends on the Class B Convertible
Preferred Stock, except for such rights or interest that may arise as
a result of the Company paying a dividend or making a Distribution on
the Common Stock in violation of the terms of this Section 2.
2.2 Participation Rights. Dividends shall be declared pro
rata on the Common Stock and the Class B Convertible Preferred Stock
on a pari passu basis according to the number of shares of Common
Stock held by such holders, where each holder of shares of Class B
Preferred Stock is to be treated for this purpose as holding the
number of shares of Common Stock to which the holders thereof would
be entitled if they converted their shares of Class B Convertible
Preferred Stock at the time of such dividend in accordance with
Section 4 hereof.
2.3 Non-Cash Dividends. Whenever a dividend or
Distribution provided for in this Section 2 shall be payable in
property other than cash (other than a Common Stock Dividend), the
value of such dividend or Distribution shall be deemed to be the fair
market value of such property as determined in good faith by the Board.
3. Liquidation Rights. In the event of any liquidation,
dissolution or winding up of the Company; whether voluntary or
involuntary, the funds and assets of the Company that may be legally
distributed to the Company's shareholders (the "Available Funds and
Assets") shall be distributed to shareholders in the following
manner:
3.1 Class B Convertible Preferred Stock. The holders of
each share of Class B Preferred Stock then outstanding shall be
entitled to be paid, out of the Available Funds and Assets, and prior
and in preference to any payment or distribution (or any setting
apart of any payment or distribution) of any Available Funds and
Assets on any shares of Common Stock or subsequent series of
preferred stock (the Company currently has outstanding a Class A
Preferred Stock with liquidation rights that come before the Class B
Convertible Preferred Stock), an amount per share equal to the
Original Issue Price of the Class B Convertible Preferred Stock plus
all declared but unpaid dividends on the Class B Convertible
Preferred Stock. If upon any liquidation, dissolution or winding up
of the Company, the Available Funds and Assets shall be insufficient
to permit the payment to holders of the Class B Convertible Preferred
Stock of their full preferential amount as described in this
subsection, then all of the remaining Available Funds and Assets
shall be distributed among the holders of the then outstanding Class
B Convertible Preferred Stock pro rata, according to the number of
outstanding shares of Class B Convertible Preferred Stock held by
each holder thereof.
3.2 Participation Rights. If there are any Available Funds and
Assets remaining after the payment or distribution (or the setting
aside for payment or distribution) to the holders of the Class B
Convertible Preferred Stock of their full preferential amounts
described above in this Section 3, then all such remaining Available
Funds and Assets shall be distributed among the holders of the then
outstanding Common Stock and Preferred Stock pro rata according to
the number and preferences of the shares of Common Stock and
Preferred Stock (as converted to Common Stock) held by such holders.
3.3 Merger or Sale of Assets. A reorganization or any other
consolidation or merger of the Corporation with or into any other
corporation, or any other sale of all or substantially all of the
assets of the Corporation, shall not be deemed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of
this Section 3, and the Class B Convertible Preferred Stock shall be
entitled only to (i) the right provided in any agreement or plan
governing the reorganization or other consolidation, merger or sale
of assets transaction, (ii) the rights contained in the Nevada
Revised Statutes, and (iii) the rights contained in other Sections hereof.
3.4 Non-Cash Consideration. If any assets of the Company
distributed to shareholders in connection with any liquidation,
dissolution or winding up of the Company are other than cash, then
the value of such assets shall be their fair market value as
determined by the Board, except that any securities to be distributed
to shareholders in a liquidation, dissolution or winding up of the
Company shall be valued as follows:
(a) The method of valuation of securities not subject to
investment letter or other similar restrictions on free marketability
shall be as follows:
(i) if the securities are then traded on a national
securities exchange or the Nasdaq National Market
(or a similar national quotation system), then
the value shall be deemed to be the average of
the closing prices of the securities on such
exchange or system over the 30-day period ending
three (3) days prior to the distribution; and,
(ii) if actively traded over-the-counter, then the
value shall be deemed to be the average of the
closing bid prices over the 30-day period ending
three (3) days prior to the distribution; and
(iii) if there is no active public market, then
the value shall be the fair market value thereof,
as determined in good faith by the Board of
Directors of the Company.
(b) The method of valuation of securities subject to
investment letter or other restrictions on free marketability shall
be to make an appropriate discount from the market value determined
as above in subparagraphs (a)(i), (ii) or (iii) of this subsection to
reflect the approximate fair market value thereof, as determined in
good faith by the Board.
4. Conversion Rights.
(a) Conversion of Preferred Stock. Each share of Class B
Convertible Preferred Stock shall be convertible, at the option of
the holder thereof, at any time after the issuance of such share into
the greater of (i) that number of fully paid and nonassessable shares
of Common Stock of the Company described equal to one percent (1%) of
the outstanding shares of Common Stock of the Company then
outstanding, after giving consideration to the shares issued as a
result of the conversion, any options, warrants, or other convertible
securities then outstanding, and any other securities issued
simultaneously on the date of conversion, and (ii) Seven Million Two
Hundred Seventy Two Thousand Seven Hundred and Twenty Eight
(7,272,728) shares of Common Stock.
(b) Procedures for Exercise of Conversion Rights. The
holders of any shares of Class B Convertible Preferred Stock may
exercise their conversion rights as to all such shares or any part
thereof by delivering to the Company during regular business hours,
at the office of any transfer agent of the Company for the Class B
Convertible Preferred Stock, or at the principal office of the
Company or at such other place as may be designated by the Company,
the certificate or certificates for the shares to be converted, duly
endorsed for transfer to the Company (if required by the Company),
accompanied by written notice stating that the holder elects to
convert such shares. Conversion shall be deemed to have been
effected on the date when such delivery is made, and such date is
referred to herein as the "Conversion Date." As promptly as
practicable after the Conversion Date, but not later than ten (10)
business days thereafter, the Company shall issue and deliver to or
upon the written order of such holder, at such office or other place
designated by the Company, a certificate or certificates for the
number of full shares of Common Stock to which such holder is
entitled and a check for cash with respect to any fractional interest
in a share of Common Stock as provided in section 4(c) below. The
holder shall be deemed to have become a shareholder of record on the
Conversion Date. Upon conversion of only a portion of the number of
shares of Class B Convertible Preferred Stock represented by a
certificate surrendered for conversion, the Company shall issue and
deliver to or upon the written order of the holder of the certificate
so surrendered for conversion, at the expense of the Company, a new
certificate covering the number of shares of Class B Convertible
Preferred Stock representing the unconverted portion of the
certificate so surrendered.
(c) No Fractional Shares. No fractional shares of Common
Stock or scrip shall be issued upon conversion of shares of Class B
Convertible Preferred Stock. If more than one share of Class B
Convertible Preferred Stock shall be surrendered for conversion at
any one time by the same holder, the number of full shares of Common
Stock issuable upon conversion thereof shall be computed on the basis
of the aggregate number of shares of Class B Convertible Preferred
Stock so surrendered. Instead of any fractional shares of Common
Stock which would otherwise be issuable upon conversion of any shares
of Class B Convertible Preferred Stock, the Company shall pay a cash
adjustment in respect of such fractional interest equal to the fair
market value of such fractional interest as determined by the
corporation's Board of Directors.
(d) Payment of Taxes for Conversions. The Company shall
pay any and all issue and other taxes that may be payable in respect
of any issue or delivery of shares of Common Stock on conversion
pursuant hereto of Class B Convertible Preferred Stock. The Company
shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of
shares of Common Stock in a name other than that in which the shares
of Class B Convertible Preferred Stock so converted were registered,
and no such issue or delivery shall be made unless and until the
person requesting such issue has paid to the Company the amount of
any such tax, or has established, to the satisfaction of the Company,
that such tax has been paid.
(e) Reservation of Common Stock. The Company shall at all
times reserve and keep available, out of its authorized but unissued
Common Stock, solely for the purpose of effecting the conversion of
the Class B Convertible Preferred Stock, the full number of shares of
Common Stock deliverable upon the conversion of all shares of all
series of preferred stock from time to time outstanding.
(f) Registration or Listing of Shares of Common Stock. If
any shares of Common Stock to be reserved for the purpose of
conversion of shares of Class B Convertible Preferred Stock require
registration or listing with, or approval of, any governmental
authority, stock exchange or other regulatory body under any federal
or state law or regulation or otherwise, before such shares may be
validly issued or delivered upon conversion, the Company will in good
faith and as expeditiously as possible endeavor to secure such
registration, listing or approval, as the case may be.
(g) Status of Common Stock Issued Upon Conversion. All
shares of Common Stock which may be issued upon conversion of the
shares of Class B Convertible Preferred Stock will upon issuance by
the Company be validly issued, fully paid and nonassessable and free
from all taxes, liens and charges with respect to the issuance thereof.
(h) Status of Converted Preferred Stock. In case any
shares of Class B Convertible Preferred Stock shall be converted
pursuant to this section 4, the shares so converted shall be canceled
and shall not be issuable by the corporation.
5. Adjustment of Conversion Price.
(a) General Provisions. In case, at any time after the
date hereof, of any capital reorganization, or any reclassification
of the stock of the Company (other than a change in par value or as a
result of a stock dividend or subdivision, split-up or combination of
shares), or the consolidation or merger of the Company with or into
another person (other than a consolidation or merger in which the
Company is the continuing entity and which does not result in any
change in the Common Stock), or of the sale or other disposition of
all or substantially all the properties and assets of the Company as
an entirety to any other person, the shares of Class B Convertible
Preferred Stock shall, after such reorganization, reclassification,
consolidation, merger, sale or other disposition, be convertible into
the kind and number of shares of stock or other securities or
property of the Company or of the entity resulting from such
consolidation or surviving such merger or to which such properties
and assets shall have been sold or otherwise disposed to which such
holder would have been entitled if immediately prior to such
reorganization, reclassification, consolidation, merger, sale or
other disposition it had converted its shares of Class B Convertible
Preferred Stock into Common Stock. The provisions of this section
5(a) shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, sales or other
dispositions. The provisions of this section 5 shall not affect the
conversion of the Class B Convertible Preferred Stock in the event of
a forward or reverse stock split.
(b) No Impairment. The Company will not, through any
reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary
action, including amending this Certificate of Designation, avoid or
seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times
in good faith assist in the carrying out of all the provisions of
this section 5 and in the taking of all such action as may be
necessary or appropriate in order to protect the conversion rights of
the holders of Class B Convertible Preferred Stock against
impairment. This provision shall not restrict the Company from
amending its Articles of Incorporation in accordance with the Nevada
Revised Statutes and the terms hereof.
6. Redemption.
6.1 Optional Redemption. Upon the occurrence of
(i) the obtainment of a judgment by any party against
the Company that, in the sole discretion of a
majority of the holders of the Class B
Convertible Preferred Stock is or could
reasonably be expected to result in (i) a
material adverse effect on the results of
operations, assets, business, prospects or
financial condition of the Company, or (ii) a
material adverse effect on the Company's ability
to perform in any material respect on a timely
basis its obligations under the Exchange
Agreement (as defined below) (collectively, a
"Material Adverse Effect") on the Company;
(ii) the de-listing or cessation of trading of the
Company's common stock from the Over the Counter
Bulletin Board, or any national securities
exchange, for any reason, for a period of at
least ten (10) trading days; or
(iii) the failure of the Company to satisfy its
post-funding obligations as set forth in Section
7.4 of that certain Share Exchange Agreement (the
"Exchange Agreement") by and between the Company,
Senz-It, Inc., a California corporation ("Senz-
It"), and the shareholders of Senz-It dated June
10, 2005,
then, in each case, the holders of a majority of the outstanding
shares of the Class B Convertible Preferred Stock shall have the
right, but not the obligation, acting as a group, to cause the
Company to redeem the Class B Convertible Preferred Stock.
6.2 Redemption Price. For purposes of this Section 6, the
redemption price of the Class B Convertible Preferred Stock shall be
the return of all of the Shares of common stock of Senz-It acquired
by the Company pursuant to the terms of the Exchange Agreement (the
"Senz-It Shares"). The Company agrees that it will not transfer,
sell, pledge, hypothecate or otherwise limit the ability of the
Company to transfer the Senz-It Shares back to the holders of the
Class B Convertible Preferred Stock.
6.3 Redemption Procedures.
(a) Any permitted redemption of the Series A Convertible
Preferred Stock pursuant to Section 6.1 above shall be deemed to be
effective and consummated date of delivery of a notice of redemption
to the Company.
(b) Within five (5) business days of the effective date of
a redemption of the Class B Convertible Preferred Stock as specified
above, the Company shall deliver the Senz-It Shares to the holders of
the Class B Convertible Preferred Stock. Should a holder not receive
payment of any amounts due on redemption of its Class B Convertible
Preferred Stock by reason of the Company's failure to make payment at
the times prescribed above for any reason, the Company shall pay to
the applicable holder on demand (x) liquidated damages in the amount
of $1,000 per day for every day until the applicable holder is paid
in full and (y) all costs of collection, including, but not limited
to, reasonable attorneys' fees and costs, whether or not suit or
other formal proceedings are instituted.
(c) Should any Class B Convertible Preferred Stock
required to be redeemed under the terms hereof not be redeemed solely
by reason of limitations imposed by law, the applicable Class B
Convertible Preferred Stock shall be redeemed on the earliest
possible dates thereafter to the maximum extent permitted by law at
the Original Issue Price.
(d) Any Notice of Conversion delivered by a holder
(including delivery via facsimile) to the Company prior to the
effective date of redemption pursuant to Section 6.1 shall be honored
by the Company and the conversion of the Class B Convertible
Preferred Stock shall be deemed effected on the Conversion Date. In
addition, between the effective date of a redemption pursuant to
Section 6.1 above and the date the Company is required to deliver the
redemption proceeds in full to the applicable holder(s), the holder
may deliver a Notice of Conversion to the Company. Such notice will
be (x) of no force or effect if the Company timely pays the
redemption proceeds to holder when due or (y) honored on or as of the
date of the Notice of Conversion if the Company fails to timely pay
the redemption proceeds to holder when due.
7. Notices. Any notices required by the provisions of this
Certificate of Designation to be given to the holders of shares of
Class B Convertible Redeemable Preferred Stock shall be deemed given
if sent by facsimile or overnight courier to the address appearing on
the books of the Company, and 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.
8. Voting Provisions. Each share of Class B Convertible
Preferred Stock shall be entitled to the number of votes to which the
holders thereof would be entitled if they converted their shares of
Class B Convertible Preferred Stock at the time of voting in
accordance with Section 4 hereof.
9. Protective Provisions. The Company may not take any of the
following actions without the approval of a majority of the holders
of the outstanding Class B Convertible Preferred Stock: (i) effect a
sale of all or substantially all of the Company's assets or which
results in the holders of the Company's capital stock prior to the
transaction owning less than fifty percent (50%) of the voting power
of the Company's capital stock after the transaction, (ii) alter or
change the rights, preferences, or privileges of the Class B
Convertible Preferred Stock, (iii) increase or decrease the number of
authorized shares of Class B Convertible Preferred Stock, (iv)
authorize the issuance of securities having a preference over or on
par with the Class B Convertible Preferred Stock, or (v) effectuate a
forward or reverse stock split or dividend of the Company's common stock.
10. Board of Director Provisions. So long as any shares of
Class B Convertible Preferred Stock are outstanding, (a) the Company
shall not, without the affirmative vote of the holders of at least a
majority of the then outstanding shares of Class B Convertible
Preferred Stock, increase the maximum number of directors
constituting the Board to a number other than seven (7), and (b) the
holders of the Class B Convertible Preferred Stock, acting as a
group, shall have the right, but not the obligation, to fill four (4)
of the seats.
IN WITNESS WHEREOF, the Company has caused this Certificate of
Designation of Class B Convertible Preferred Stock to be duly
executed by its President and attested to by its Secretary and has
caused its corporate seal to be affixed hereto this 31st day of
August, 2005.
By: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx, President
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Secretary
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.
