AGREEMENT REGARDING THE CANCELLATION OF THE SERIES A PREFERRED STOCK OF XA, INC.
Exhibit 10.49
AGREEMENT
REGARDING THE CANCELLATION OF
THE
SERIES A PREFERRED STOCK OF XA, INC.
This
Agreement Regarding the Cancellation of the Series A Preferred Stock of XA,
Inc.
(the “Agreement”)
is
made and entered into this 24th day of January 2007, by and between XA,
Inc.,
a
Nevada corporation (“XA”)
and
Xxxxxx
Xxxxxx,
an
individual and the President and Chief Executive Officer of XA and Xxxx
Xxxxxx,
an
individual and the Chief Operating Officer of XA (collectively the “Preferred
Stock Holders”),
each
individually a “Party”
and
collectively the “Parties.”
W I T N E S S E T H:
WHEREAS,
the
Preferred Stock Holders each hold one (1) share of XA’s Series A Preferred
Stock, of which only two (2) shares are currently outstanding, which shares
provide the Preferred Stock Holders the right to vote in aggregate an amount
of
common stock equal to fifty-one (51%) of XA’s total common stock on all
shareholder matters (the “Series
A Preferred Stock”);
WHEREAS,
XA
previously entered into a Securities Purchase Agreement with certain third
party
purchasers to purchase an aggregate of $2,700,000 in 11% Senior Secured
Convertible Notes (the “Funding”),
whereby XA agreed to retire all of its Series A Preferred Stock for an aggregate
of $1.00 (the “Retirement”),
as a
condition to XA entering into the Securities Purchase Agreement and receiving
any funds from the third party purchasers; and
WHEREAS,
the
Preferred Stock Holders are willing to agree to the Retirement of the Series
A
Preferred Stock.
NOW,
THEREFORE,
in
consideration for the promises and pledges contained below and other good and
valuable consideration, which consideration XA and the Purchasers acknowledge
receipt of, and the premises and the mutual covenants, agreements, and
considerations herein contained, the Parties hereto agree as
follows:
| 1. |
Retirement
of the Series A Preferred
Stock.
|
|
The
Preferred Stock Holders agree to return certificates P-2 and P-3
(the
“Certificates”),
each evidencing one (1) share of Series A Preferred Stock to XA,
at the
address below, for cancellation within five (5) days of the date
of this
Agreement first written above.
|
|
XA
agrees to pay the Preferred Stock Holders an aggregate of $1.00,
to be
distributed equally to each of the Preferred Stock Holders in
consideration for the Retirement, which funds XA agrees to provide
to the
Preferred Stock Holders within five (5) days of the date of this
Agreement
first written above (the “Payment”).
|
|
XA
agrees that it will receive valid consideration from the Retirement
and
the Preferred Stock Holders agree that they will receive valid
consideration from the Payment and the
Funding.
|
|
2.
|
The
Retirement.
|
|
The
Preferred Stock Holders agree to send the Certificates evidencing
the
shares of Series A Preferred Stock to XA’s attorney at the following
address for cancellation:
|
The
Loev
Law Firm, Inc.
0000
Xxxx
Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxx 00000
|
The
Preferred Stock Holders agree that once the Series A Preferred Stock
shares are cancelled by XA and the Preferred Stock Holders receive
the
Payment, they will no longer have any rights to the Series A Preferred
Stock nor will they retain any super majority voting
rights.
|
3. Miscellaneous.
(a) 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.
(b) Applicable
Law.
This
Agreement shall be construed in accordance with and governed by the laws of
the
State of Illinois, excluding any provision of this Agreement which would require
the use of the laws of any other jurisdiction.
(c) 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.
(d)
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.
(e) Section
Headings.
Section
headings are for convenience only and shall not define or limit the provisions
of this Agreement.
(f) 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.
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
PREFERRED
STOCK HOLDERS:
/s/
Xxxxxx Xxxxxx
Xxxxxx
Xxxxxx
One
Share
of Series A Preferred Stock
Represented
by Certificate P-3
/s/
Xxxx Xxxxxx
Xxxx
Xxxxxx
One
Share
of Series A Preferred Stock
Represented
by Certificate P-2
