Exhibit 10.2
WAIVER AGREEMENT
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This Waiver Agreement dated December 29, 2004 ("Agreement") is by and
between XA, Inc., formerly The Experiential Agency, Inc., a Nevada Corporation
(the "Company") and the parties who sign this Waiver Agreement (the
"Investors"), (collectively the "Parties").
WHEREAS, the Company and the Investors have previously entered into a
Subscription Agreement dated as of June 30, 2004 relating to the sale by the
Company to the Investors of Convertible Notes, Class A Common Stock Purchase
Warrants, and Class B Common Stock Purchase Warrants ("Warrants").
WHEREAS, the Company is contemporaneously with the Company's signing of
this Agreement, which shall not be later than December 23, 2004, issuing One
Hundred (100) shares of its common stock at $2.00 per share (the "Issuance")
which under the Favored Nations Provision of Section 12(c) of the Subscription
Agreement and Section 3.4 of the Warrants requires the Company to automatically
reduce the Conversion Price of the Convertible Promissory Notes to $2.00 per
share and reduce the Purchase Price of the Warrants to $2.00 per share.
WHEREAS, pursuant to this Agreement the Company agrees to re-price the
Convertible Promissory Notes and the Investors agree to waive the anti-dilution
provisions of the Warrants, causing the Warrants not to be re-priced.
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
agreements, and considerations herein contained, the parties hereto agree as
follows:
1) The Investors agree that under the anti-dilution provisions of the
Subscription Agreement at Section 12(c) and pursuant to Section 2.1(c)D of
the Convertible Promissory Notes, the Maximum Base Price as defined in
Section 2.1(b) of the Convertible Notes is reduced to $2.00, subject to
further adjustments.
2) The Investors agree to waive the anti-dilution provisions of the Class A
Common Stock Purchase Warrants and the Class B Common Stock Purchase
Warrants, only in connection with the Issuance, and that the Warrants will
not be re-priced in connection with the Issuance.
3) The Investors further agree to waive all reset rights and anti-dilution
rights in connection with the issuance of up to 500,000 shares of the
Company's common stock in connection with Investor Relations, Public
Relations, Legal services and XXXXX filing services over the course of a
one year period beginning on the date of this Agreement which may be
registered on Form S-8.
4) The Company undertakes to file within ten days of the date of this Waiver
Agreement, a post-effective amendment to the Company's registration
statement declared effective on September 3, 2004 ("Registration
Statement"), which amendment will update the Registration Statement to
describe the terms of this Agreement. The Investors acknowledge that as a
result of the reduction of the Conversion Price described in Paragraph "1"
above, the Registration Statement will have available for conversion of
Note principle and interest fewer shares than necessary to allow for
complete conversion into registered shares of all the Note principal and
interest presently outstanding. The 655,588 registered shares presently
available for conversions shall be reserved for the Investors in proportion
to the Note principal held by them. The Investors waive the registration
rights described in Sections 11.1(i) and 11.1(iv) in connection only with
the shares that are not presently registered in the Registration Statement
only as a result of the reduction of the Conversion Price as described in
Paragraph "1" above. The Company acknowledges that the registration rights
described in Section 11.1(ii) of the Subscription Agreement remain in full
force and effect in connection with all Registrable Securities.
5) The Company acknowledges its obligation to issue Common Stock upon
conversion of Note principal and interest whether or not such Common Stock
is included in a registration statement. If such Common Stock is not
included in a registration statement, it will be issued bearing the legend
described in Section 4(e) of the Subscription Agreement. The Company
further acknowledges that for purposes of Rule 144 under the 1933 Act, the
holding period of all shares of Common Stock issuable upon conversion of
the Notes commenced on the issue date of the Notes.
6) The Parties agree that all provisions of the Subscription Agreement,
Convertible Notes, Class A Common Stock Purchase Warrants and Class B
Common Stock Purchase Warrants, which are not changed or waived by this
Agreement, will remain in effect as originally entered into between the
Parties.
7) Miscellaneous
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(a) Assignment. All of the terms, provisions and conditions of this
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Agreement shall be binding upon and shall inure to the benefit of
and be enforceable by the parties hereto and their respective
successors and permitted assigns.
(b) Applicable Law. This Agreement shall be construed in accordance
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with and governed by the laws of the State of New York, excluding
any provision which would require the use of the laws of any
other jurisdiction.
(c) Post-Split. All the figures and calculations included in this
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Agreement reflect the twenty for one reverse split of the
Company's Common Stock effectuated on December 9, 2004.
(d) Entire Agreement, Amendments and Waivers. This Agreement
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constitutes the entire agreement of the parties hereto and
expressly supersedes all prior and contemporaneous understandings
and commitments, whether written or oral, with respect to the
subject matter hereof. No variations, modifications, changes or
extensions of this Agreement or any other terms hereof shall be
binding upon any party hereto unless set forth in a document duly
executed by such party or an authorized agent or such party.
(e) Faxed Copies. For purpose of this Agreement, a faxed signature
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will constitute an original signature.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first written above.
XA, INC.
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BY: /s/ Xxxxxx Xxxxxx
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ITS: President
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PRINTED NAME: Xxxxxx Xxxxxx
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ALPHA CAPITAL AKTIENGESELLSCHAFT
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BY:
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ITS:
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PRINTED NAME:
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XXXXXXXXXXX LIMITED PARTNERSHIP
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BY: /s/ X. Xxxxxxxxxxx
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ITS: President
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WHALEHAVEN FUNDS LIMITED
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BY: /s/ Xxxxxx Xxxxx
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ITS: Director
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PRINTED NAME: Xxxxxx Xxxxx
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GREENWICH GROWTH FUND LIMITED
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BY: /s/ Xxx X. Xxxxxxx
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ITS: Director
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PRINTED NAME: Xxx X. Xxxxxxx
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GENESIS MICROCAP INC.
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BY: /s/ Xxxxx Xxxxxxx
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ITS:
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PRINTED NAME: Xxxxx Xxxxxxx
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