Exhibit 10.2
AMENDED CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"), dated May 12, 2005, with
an effective date of April 1, 2005 (the "Effective Date"), is made by and
between Loev Corporate Filings, Inc., a Nevada corporation whose business
address is 4712 Bellview, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Consultant"), and XA, Inc.
("Client").
WHEREAS, Consultant has extensive knowledge and background in creating and
submitting electronic filings to the United States Securities and Exchange
Commission ("SEC" or "Commission") through the Electronic Data Gathering
Analysis, and Retrieval ("▇▇▇▇▇") system;
WHEREAS, Client, a publicly held corporation with its common stock shares
trading on the OTC Bulletin Board under the ticker symbol "XAIN.OB," is required
by the SEC to file electronically through ▇▇▇▇▇;
WHEREAS, Client desires to timely, accurately, and cost effectively satisfy
its mandate to file electronically through ▇▇▇▇▇ all documents, including
filings, correspondence, and supplemental information under the Securities Act
of 1933 (the "Securities Act") and the Securities Exchange Act of ▇▇▇▇ (▇▇▇
"▇▇▇▇▇▇▇▇ ▇▇▇");
WHEREAS, Consultant and Client previously entered into an agreement
covering Consultant providing Client ▇▇▇▇▇ services in January 2005 ("Previous
Agreement"), and the parties desire to modify the terms of their Previous
Agreement on the terms and subject to the conditions set forth herein;
WHEREAS, this Agreement shall replace and supplant all provisions and terms
of the Previous Agreement; and
WHEREAS, Client desires to engage Consultant to provide ▇▇▇▇▇ filing
services on the terms and subject to the conditions set forth herein. NOW,
THEREFORE, in consideration for those services Consultant provides to Client,
the parties agree as follows:
1. SERVICES OF CONSULTANT.
Consultant agrees to perform for Client all reasonable and necessary
services required in order to timely and accurately satisfy Client's ▇▇▇▇▇
filing requirements under the Securities Act and the Exchange Act (the
"Services").
2. CONSIDERATION.
(A) SHARES.
Client agrees to pay Consultant, as its fee and as consideration for
Services provided, Thirty Thousand (30,000) shares of common stock of the
Client (the "Shares") plus an additional Ten Thousand (10,000) shares of
common stock in consideration for Consultant modifying the Previous
Agreement and entering into this Agreement (the "Consideration," and
collectively with the Shares, the "Fee").
(B) VESTING OF SHARES.
The Shares earned by Consultant shall vest on a pro rata basis on the
last day of each month covered by this Agreement, during the seventeen (17)
month Term of this Agreement. The Consideration shares vested on April 30,
2005. For example, on April 30, 2005, Consultant vested a total of 17,060
shares of Clients common stock, representing the Consideration and four
months of vesting of the Shares (or four-seventeenth (4/17) of the Shares),
one-seventeenth of the Shares (1,765 shares) for each month Consultant
performed services for the Client. Consultant will continue to vest the
Shares at the rate of one-seventeenth (1/17) of the Shares, or 1,765 shares
per month, on the last day of each month covered by the Term of this
Agreement.
3. REGISTRATION RIGHTS.
If at any time after the Effective Date, Client files a registration
statement with the SEC, whether on Form S-8 or any other form which Consultant's
Shares would be eligible, Consultant's Shares shall be included in any such
registration statement. Shares are due and payable immediately upon the
effectiveness of the registration statement with the SEC and with any
appropriate state's securities administrator. Client agrees to provide
Consultant notice of the filing of such registration and of the filing of any
amendments or supplements thereto.
4. CONFIDENTIALITY.
Each party agrees that during the course of this Agreement, information
that is confidential or of a proprietary nature may be disclosed to the other
party, including, but not limited to, product and business plans, software,
technical processes and formulas, source codes, product designs, sales, costs
and other unpublished financial information, advertising revenues, usage rates,
advertising relationships, projections and marketing data ("Confidential
Information"). Confidential Information shall not include information that the
receiving party can demonstrate (a) is, as of the time of its disclosure, or
thereafter becomes part of the public domain through a source other than the
receiving party, (b) was known to the receiving party as of the time of its
disclosure, (c) is independently developed by the receiving party, or (d) is
subsequently learned from a third party not under a confidentiality obligation
to the providing party.
5. LATE PAYMENT.
Client shall pay to Consultant all Shares within fifteen (15) days of the
date of the effectiveness of any registration statement (the "due date").
Failure of Client to finally pay any Shares within fifteen (15) days after the
applicable due date shall be deemed a material breach of this Agreement,
justifying suspension of the performance of the Services provided by Consultant
and will be sufficient cause for immediate termination of this Agreement by
Consultant. Any such suspension will in no way relieve Client from payment of
Shares, and, in the event of collection enforcement, Client shall be liable for
any costs associated with such collection, including, but not limited to, legal
costs, attorneys' fees, courts costs, and collection agency fees.
6. INDEMNIFICATION.
(A) CLIENT.
Client agrees to indemnify, defend, and shall hold harmless Consultant
and/or his agents, and to defend any action brought against said parties
with respect to any claim, demand, cause of action, debt or liability,
including reasonable attorneys' fees to the extent that such action is
based upon a claim that: (i) is true, (ii) would constitute a breach of any
of Client's representations, warranties, or agreements hereunder, or (iii)
arises out of the negligence or willful misconduct of Client, or any Client
Content to be provided by Client and does not violate any rights of third
parties, including, without limitation, rights of publicity, privacy,
patients, copyrights, trademarks, trade secrets, and/or licenses.
(B) CONSULTANT.
Consultant agrees to indemnify, defend, and shall hold harmless
Client, its directors, employees and agents, and defend any action brought
against same with respect to any claim, demand, cause of action, debt or
liability, including reasonable attorneys' fees, to the extent that such an
action arises out of the gross negligence or willful misconduct of
Consultant.
(C) NOTICE.
In claiming any indemnification hereunder, the indemnified party shall
promptly provide the indemnifying party with written notice of any claim,
which the indemnified party believes falls within the scope of the
foregoing paragraphs. The indemnified party may, at its expense, assist in
the defense if it so chooses, provided that the indemnifying party shall
control such defense, and all negotiations relative to the settlement of
any such claim. Any settlement intended to bind the indemnified party shall
not be final without the indemnified party's written consent, which shall
not be unreasonably withheld.
7. LIMITATION OF LIABILITY.
Consultant shall have no liability with respect to Consultant's obligations
under this Agreement or otherwise for consequential, exemplary, special,
incidental, or punitive damages even if Consultant has been advised of the
possibility of such damages. In any event, the liability of Consultant to Client
for any reason and upon any cause of action, regardless of the form in which the
legal or equitable action may be brought, including, without limitation, any
action in tort or contract, shall not exceed ten percent (10%) of the fair
market value of the Shares determined at the time such Shares were paid.
8. TERMINATION AND RENEWAL.
(A) TERM.
This Agreement shall become effective as of April 1, 2005 and shall
terminate on May 31, 2006 (the "Term"). Unless otherwise agreed upon in
writing by Consultant and Client, this Agreement shall not automatically be
renewed beyond its Term.
(B) TERMINATION.
Either party may terminate this Agreement on thirty (30) calendar
day's written notice, or if prior to such action, the other party
materially breaches any of its representations, warranties or obligations
under this Agreement. Except as may be otherwise provided in this
Agreement, such breach by either party will result in the other party being
responsible to reimburse the non-defaulting party for all costs incurred
directly as a result of the breach of this Agreement, and shall be subject
to such damages as may be allowed by law including all attorneys' fees and
costs of enforcing this Agreement. Additionally, Client shall be entitled
to all Shares that Client would have vested through the last day of the
month in which this Agreement is terminated.
(C) TERMINATION AND PAYMENT.
Upon any termination or expiration of this Agreement, Client shall pay
all unpaid and outstanding fees through the effective date of termination
or expiration of this Agreement. And upon such termination, Consultant
shall provide and deliver to Client any and all outstanding Services due
through the termination or expiration date of this Agreement.
9. MISCELLANEOUS.
(A) INDEPENDENT CONTRACTOR.
This Agreement establishes an "independent contractor" relationship
between Consultant and Client.
(B) RIGHTS CUMULATIVE; WAIVERS.
The rights of each of the parties under this Agreement are cumulative.
The rights of each of the parties hereunder shall not be capable of being
waived or varied other than by an express waiver or variation in writing.
Any failure to exercise or any delay in exercising any of such rights shall
not operate as a waiver or variation of that or any other such right. Any
defective or partial exercise of any of such rights shall not preclude any
other or further exercise of that or any other such right. No act or course
of conduct or negotiation on the part of any party shall in any way
preclude such party from exercising any such right or constitute a
suspension or any variation of any such right.
(C) BENEFIT; SUCCESSORS BOUND.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof, shall be binding
upon, and shall inure to the benefit of, the undersigned parties and their
heirs, executors, administrators, representatives, successors, and
permitted assigns, except that performance of the Services to be provided
by Consultant under this Agreement are of a personal nature and the
obligation(s) to perform the Services will not be assignable or delegable
in whole or in part unless the person to whom the obligation to perform the
Services is assigned or delegated is Consultant's employee or independent
contractor.
(D) ENTIRE AGREEMENT.
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof. There are no promises, agreements,
conditions, undertakings, understandings, warranties, covenants or
representations, oral or written, express or implied, between them with
respect to this Agreement or the matters described in this Agreement,
except as set forth in this Agreement. Any such negotiations, promises, or
understandings shall not be used to interpret or constitute this Agreement.
(E) ASSIGNMENT.
Neither this Agreement nor any other benefit or obligation to accrue
hereunder shall be assigned, transferred or delegated by either party,
either in whole or in part, without the written consent of the other party,
and any purported assignment, transfer or delegation in violation hereof
shall be void.
(F) AMENDMENT.
This Agreement may be amended only by an instrument in writing
executed by all the parties hereto.
(G) SEVERABILITY.
Each part of this Agreement is intended to be severable. In the event
that any provision of this Agreement is found by any court or other
authority of competent jurisdiction to be illegal or unenforceable, such
provision shall be severed or modified to the extent necessary to render it
enforceable and as so severed or modified, this Agreement shall continue in
full force and effect.
(H) SECTION HEADINGS.
The Section headings in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this
Agreement.
(I) CONSTRUCTION.
Unless the context otherwise requires, when used herein the singular
shall be deemed to include the plural, the plural shall be deemed to
include each of the singular, and pronouns of one or no gender shall be
deemed to include the equivalent pronoun of the other or no gender.
(J) FURTHER ASSURANCES.
In addition to the instruments and documents to be made, executed and
delivered pursuant to this Agreement the parties hereto agree to make,
execute and deliver or cause to be made, executed and delivered, to the
requesting party such other instruments and to take such other actions as
the requesting party may reasonably require to carry out the terms of this
Agreement and the transactions contemplated hereby.
(K) NOTICES.
Any notice which is required or desired under this Agreement shall be
given in writing and may be sent by personal delivery or by mail (either a)
United States mail, postage prepaid; or b) Federal Express or similar
generally recognized overnight carrier), addressed as follows (subject to
the right to designate a different address by notice similarly given):
To Client: To Consultant:
XA, Inc. Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, President Loev Corporate Filings, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(L) GOVERNING LAW.
This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Texas without reference to its conflicts of laws,
rules or principles. Each of the parties consent to the exclusive
jurisdiction of the federal courts of the State of Texas in connection with
any dispute arising under this Agreement and hereby waives, to the maximum
extent permitted by law, any objection, including any objection based on
forum non coveniens, to the bringing of any such proceeding in such
jurisdictions.
(M) CONSENTS.
The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent and
authority to execute and deliver this Agreement on behalf of such party.
(N) SURVIVAL OF PROVISIONS.
The provisions contained in paragraphs 3 (Confidentiality), 5
(Indemnification), 6 (Limitation of Liability), and 8 (Miscellaneous) of
this Agreement shall survive the termination of this Agreement
(O) EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of which together shall
constitute one and the same agreement.
(P) FAXED SIGNATURES.
For purposes of this Agreement a faxed signature will constitute an
original signature.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and have agreed to and accepted the terms herein on the date written above.
XA, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇, President
LOEV CORPORATE FILINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Its: President
Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇