FIRST AMENDMENT TO THE REGISTRATION RIGHTS AGREEMENT
Exhibit
10.94
FIRST
AMENDMENT TO THE
This First Amendment to The
Registration Rights Agreement (this “Agreement”)
is made and entered into as of May 8, 2008, to be effective as of December 21,
2007 (the “Effective
Date”), by and between XA,
Inc., a Nevada corporation (“XA”)
and Sands
Brothers Venture Capital LLC, Sands
Brothers Venture Capital II LLC, Sands
Brothers Venture Capital IV LLC, and Katie &
Xxxx Bridge Partners, L.P. (each a “Purchaser”
and collectively the “Purchasers”),
each individually a “Party”
and collectively the “Parties.”
W I T N E S S E T H:
WHEREAS, on or around June 22,
2007, the Purchasers entered into a Securities Purchase Agreement, pursuant to
which XA sold certain convertible promissory notes and warrants (the “Securities”)
to purchase shares of XA’s common stock to the Purchasers (the “Prior
Purchase Agreement”);
WHEREAS, the Prior Purchase
Agreement included a Registration Rights Agreement which the Purchasers entered
into with XA to register the shares of common stock issuable to the Purchasers
in connection with the conversion of and/or exercise of the Securities (the
“Prior
Registration Rights Agreement”);
WHEREAS, Sands Brothers
Venture Capital III LLC (“Sands
Brothers III”) entered into a Registration Rights Agreement with XA on or
around December 21, 2007 (the “Sands
Brothers III Rights Agreement”), which replaced and superseded the terms
of the Prior Registration Rights Agreement, to which Sands Brothers III was also
a party, and extended the filing and effectiveness deadlines of such Prior
Registration Rights Agreement;
WHEREAS, a negotiated term and
provision of the Sands Brothers III December 2007 funding was the amendment of
the filing and effectiveness dates with the Purchasers of the terms and
conditions of the Prior Registration Rights Agreement;
WHEREAS, the Purchases now
desire to enter into this Agreement with XA, pursuant to which such Purchasers
agree to be bound by the terms and conditions of the Sands Brother III Rights
Agreement; and
NOW, THEREFORE, in
consideration for the promises and pledges contained below and other good and
valuable consideration, which consideration the Parties acknowledge receipt of,
and the premises and the mutual covenants, agreements, and considerations herein
contained, the Parties hereto agree as follows:
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1.
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Amendment To The Prior
Registration Rights Agreement
Terms.
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The
Purchasers each individually agree that from the Effective Date of this
Agreement forward, the terms of the Prior Registration Rights Agreement to which
they are a party will have and XA will be bound to, substantially similar terms
(including filing dates and effectiveness dates) as the Sands Brothers III
Rights Agreement, as if each of the Purchasers was a party to such Sands
Brothers III Rights Agreement, and the terms and conditions of the Prior
Registration Rights Agreement shall be amended by and superseded by the terms of
the Sands Brothers III Rights Agreement (the “Amendment”).
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The
Purchasers confirm that they received valid consideration from the
Amendment.
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XA
confirms that it will receive valid consideration from the
Amendment.
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2.
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Miscellaneous.
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(a)
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Assignment. All
of the terms, provisions and conditions of this 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.
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(b)
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Applicable
Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of New York, excluding any
provision of this Agreement which would require the use of the laws of any
other jurisdiction.
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(c)
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Entire Agreement,
Amendments and Waivers. This Agreement 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.
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(d)
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Waiver. No
failure on the part of any Party to enforce any provisions of this
Agreement will act as a waiver of the right to enforce that
provision.
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(e)
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Section
Headings. Section headings are for convenience only and shall not
define or limit the provisions of this
Agreement.
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(f)
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Effect of Facsimile
and Photocopied Signatures. This Agreement may be executed in
several counterparts, each of which is an original. It shall
not be necessary in making proof of this Agreement or any counterpart
hereof to produce or account for any of the other
counterparts. A copy of this Agreement signed by one Party and
faxed to another Party shall be deemed to have been executed and delivered
by the signing Party as though an original. A photocopy of this
Agreement shall be effective as an original for all
purposes.
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[Remainder
of page left intentionally blank. Signature page
follows.]
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This
Agreement has been executed by the Parties on the date first written above, with
an Effective Date as provided above.
/s/
xxxxxx xxxxxx
Xxxxxx
Xxxxxx
Chief
Executive Officer
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Purchasers:
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Sands Brothers Venture
Capital LLC
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Sands Brothers Venture Capital II
LLC
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By:
/s/ xxxxx
xxxxx
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By:
/s/ xxxxx
xxxxx
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Its:
coo
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Its:
coo
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Printed
Name: xxxxx xxxxx
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Printed
Name: xxxxx xxxxx
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Sands Brothers Venture
Capital IV LLC
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Katie & Xxxx
Bridge Partners, L.P.
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By:
/s/ xxxxx
xxxxx
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By:
/s/ xxxxx
xxxxx
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Its:
coo
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Its:
coo
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Printed
Name: xxxxx xxxxx
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Printed
Name: xxxxx xxxxx
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