STOCK PURCHASE AGREEMENT
Exhibit 5.1
This STOCK PURCHASE AGREEMENT (this “Agreement”) is made effective as of October 13,
2006, by and among Xxxxxxx Xxxx Xxxx, an individual residing in the State of Texas
(“Seller”), Radical Holdings LP, a Texas limited partnership (“Buyer”), and
Immediatek, Inc., a Nevada corporation (the “Company”).
WHEREAS, Seller is the record owner and holder of 111,954 issued and outstanding shares of
common stock, $0.001 par value per share (the “Common Stock”), of the Company;
WHEREAS, on the date hereof, Buyer desires to purchase, and Seller agrees to sell, 110,618
shares (the “Shares”) of Common Stock owned and held of record by Seller upon the terms,
and subject to the conditions, hereinafter set forth;
WHEREAS, Seller has issued a warrant (the “Warrant”) to purchase 1,336 shares of
Common Stock owned and held of record by Seller to a third-party that expires on February 19, 2007
(the “Warrant Expiration Date”);
WHEREAS, Seller desires to grant Buyer, and Buyer desires to obtain from Seller, the right to
purchase the shares of Common Stock subject to the Warrant that are not purchased by the
third-party pursuant to the Warrant on or prior to the Warrant Expiration Date upon the terms, and
subject to the conditions, hereinafter set forth; and
WHEREAS, Buyer and the Company desire to provide certain releases to Seller, and Seller
desires to provide certain releases to Buyer and the Company, upon the terms hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and sufficiency of
which are hereby mutually acknowledged, the parties hereto hereby agree as follows:
1. Purchase and Sale of the Shares. Subject to the terms and conditions hereinafter
set forth, on the date hereof, Seller shall sell, convey, transfer and deliver to Buyer the Shares
and certificates representing the Shares, and Buyer shall purchase from Seller the Shares for a
purchase price of $2.00 per share, or an aggregate purchase price of $221,236.00 (the “Purchase
Price”). The Purchase Price will be delivered by Buyer to Seller in the form of a check
against delivery by Seller to Buyer of the certificates representing the Shares. The certificates
representing the Shares shall be duly endorsed for transfer or accompanied by appropriate stock
transfer powers duly executed in blank, in either case with signatures guaranteed in the customary
fashion, and shall have all the necessary documentary transfer tax stamps affixed thereto at the
expense of Seller.
2. Purchase and Sale of the Warrant Shares. Subject to the terms and conditions
hereinafter set forth, in the event that the Warrant is not exercised in full on or prior to the
Warrant Expiration Date, Buyer shall have the right, but not the obligation, to purchase from
Seller that number of shares of Common Stock that are not purchased from Seller pursuant to the
Warrant by the holder of the Warrant on or prior to the Warrant Expiration Date at a price of $2.00
per share (as adjusted for stock splits, combinations and other similar events). Seller shall
notify Buyer in writing (the “Seller Notice”) within ten (10) days after the Warrant
Expiration Date of the number of shares of Common Stock available for purchase by Buyer pursuant to
this Section 2 (the “Warrant Shares”). Buyer must notify Seller in writing (the
“Buyer Notice”) within ten (10) days after receipt of the Seller Notice of its election to
purchase the Warrant Shares. The purchase and
sale of the Warrant Shares, if so elected by Buyer, shall take place within ten (10) days of
Seller’s receipt of the Buyer Notice and be on such date as is mutually agreed upon by Buyer and
Seller in good faith (the date of the purchase and sale of the Warrant Shares being hereinafter
referred to as the “Warrant Shares Closing Date”). The aggregate purchase price for the
Warrant Shares, if the Warrant Shares are so purchased by Buyer, will be delivered by Buyer to
Seller in the form of a check against delivery by Seller to Buyer of the certificates representing
the Warrant Shares. The certificates representing the Warrant Shares, if the Warrant Shares are so
purchased by Buyer, shall be duly endorsed for transfer or accompanied by appropriate stock
transfer powers duly executed in blank, in either case with signatures guaranteed in the customary
fashion, and shall have all the necessary documentary transfer tax stamps affixed thereto at the
expense of Seller.
3. Representations, Warranties and Covenants of Seller. In order to induce Buyer to
purchase the Shares and, if applicable, the Warrant Shares, Seller represents and warrants to, and
covenants with, Buyer that:
(a) On the date hereof:
(i) Seller is the sole and lawful owner of the Shares.
(ii) Except as provided in that certain Investor’s Rights Agreement, dated as of June 8, 2006,
by and among Seller, Buyer, the Company and the other parties thereto:
(A) Seller has the absolute right to sell, assign, convey and transfer the Shares to Buyer
free and clear of all liens, pledges, security interests, encumbrances, equities and other charges
and without breach of any agreement to which Seller is either a party or by which Seller is bound;
(B) Seller is not a party to any agreement, written or oral, creating rights in respect of the
Shares in any third party or relating to the voting of the Shares; and
(C) There are no existing warrants, options, stock purchase agreements, redemption agreements,
restrictions of any nature, calls or rights to subscribe of any character relating to the Shares,
nor are there any securities exercisable for, or convertible into, the Shares.
(b) On the Warrant Shares Closing Date:
(i) Seller is the sole and lawful owner of the Warrant Shares;
(ii) Seller has the absolute right to sell, assign, convey and transfer the Warrant Shares to
Buyer free and clear of all liens, pledges, security interests, encumbrances, equities and other
charges and without breach of any agreement to which Seller is either a party or by which Seller is
bound;
(iii) Seller is not a party to any agreement, written or oral, creating rights in respect of
the Warrant Shares in any third party or relating to the voting of the Warrant Shares; and
(iv) There are no existing warrants, options, stock purchase agreements, redemption
agreements, restrictions of any nature, calls or rights to subscribe of any character relating to
the Warrant Shares, nor are there any securities exercisable for, or convertible into, the Warrant
Shares.
(c) Seller shall defend Buyer against all claims or demands of others with respect to the
Shares and Warrant Shares.
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(d) On the date hereof, Seller shall cause the claim for unemployment benefits filed with the
Texas Workforce Commission by Seller to be withdrawn. Seller shall neither refile any claim with
the Texas Workforce Commission nor file any other claim of a similar nature with any other
governmental agency or body or political subdivision thereof.
(e) Seller agrees not to knowingly seek employment with, or to submit an application to, the
Company at any time in the future.
(f) Seller shall not alter or modify, or cause or permit to be altered or modified, any of the
terms and provisions of the Warrant, including, without limitation, the Warrant Expiration Date,
without the prior written consent of Buyer.
4. Representations of Seller, Buyer and the Company. Seller and Buyer hereby
represent and warrant to each other that there has been no act or omission by either Seller or
Buyer, as the case may be, that would give rise to any valid claim against any of the parties
hereto for a brokerage commission, finder’s fee or other like payment in connection with the
transactions contemplated hereby. Seller, Buyer and the Company hereby further represent and
warrant to each other that each is the owner and holder of all claims being released herein, and
that neither has transferred, assigned or conveyed any such claim being released herein.
5. Release by Seller. Upon, for and in consideration of the consummation of the
purchase and sale of the Shares, and other good and valuable considerations, Seller, for and on
behalf of himself, individually, and his heirs, executors, trustees, administrators,
representatives and assigns, if any, hereby fully, finally, completely and forever releases,
discharges, acquits and relinquishes, Buyer, the Company and their respective predecessors,
successors, parent entities, subsidiaries, attorneys, officers, directors, partners, members,
managers, employees, stockholders, agents, affiliates and assigns (collectively, the
“Releasees”), jointly and/or severally, from any and all claims, actions, demands,
liabilities, promises, obligations, damages and/or causes of action of whatever kind or character,
joint or several, whether known or unknown, suspected or unsuspected, asserted or unasserted,
including, without limitation, under any federal or state statute or common law, including, but not
limited to, Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the Texas
Commission on Human Rights Act; the Employee Retirement Income Security Act; the Fair Labor
Standards Act; The Age Discrimination in Employment Act of 1967 (29 U.S.C. Section 621, et seq.);
the Texas Payday law, Tex. Lab. Code section 61.001; claims based on an alleged breach of an
obligation or duty arising in contract or tort, including, but not limited to, any and all claims
arising under the Employment Agreement (the “Employment Agreement”), dated as of March 7,
2006, by and between Seller and DiscLive, Inc., a wholly-owned subsidiary of the Company, or
otherwise relating to any alleged breach of any oral or written promise or employment contract, any
and all claims for unpaid or withheld wages, bonuses, benefits, stock or stock options, deferred
compensation, commissions or profit-sharing, any claims for wrongful discharge, retaliation or
termination, breach of contract, promissory estoppel, fraud, breach of any implied covenants,
assault, battery, negligent hiring, negligent retention, defamation, invasion of privacy, slander
or intentional infliction of emotional distress, harassment, negligence, gross negligence, and
strict liability; any alleged unlawful act; any and all claims by Seller, directly or derivatively,
in his capacity as a stockholder against the Releasees for breach of any duty owed to the
stockholders of the Company; any claims regarding or with respect to payroll taxes, or any other
claim, regardless of the forum in which it might be brought, if any, that he has, might have, or
might claim to have against Releasees, for any and all injuries, harm, damages, penalties, costs,
losses, taxes, expenses, attorneys’ fees and/or liability or other detriment, if any, whatsoever
and whenever incurred, suffered or claimed by Seller as a result of any and all alleged acts,
omissions or events, up to the date hereof but not thereafter. It is expressly agreed and
understood by Seller that this release includes, but is not limited to, any and all claims,
actions, demands, and causes of action, if any, arising from or in any way connected with any and
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all, if any, communications, negotiations, dealings, compensation, employment relationships and
separations of employment between Seller and the Releasees, including any claim of discrimination,
wrongful termination, breach of contract, and/or tortious conduct. This Section 5 does not
constitute a release or waiver of any rights of Seller arising under this Agreement, including for
breach hereof, or after the date hereof, except as provided in this Agreement.
6. Release by Buyer and the Company. Buyer and the Company, for and on behalf of
themselves and their respective current and past officers, directors, attorneys, employees, agents,
parent companies, subsidiaries, and their respective heirs, successors and assigns, hereby fully,
finally, completely and forever release, discharge, acquit and relinquish, Seller and his heirs,
executors, trustees, administrators, representatives and assigns, in their individual or corporate
capacity, from any and all claims, actions, demands, liabilities, promises, obligations, damages
and/or causes of action of whatever kind or character, joint or several, whether known or unknown,
suspected or unsuspected, asserted or unasserted, arising prior to or existing at the time of the
date hereof that they may have, or might claim to have, against Seller in any form, including, but
not limited to, violations of any federal or state law or common law claim, whether in tort,
contract or otherwise, including, but not limited to, for discrimination, retaliation, harassment,
breach of contract, breach of fiduciary duty, promissory estoppel, fraud, breach of any implied
covenants, assault, battery, negligent hiring, retention and supervision, defamation, invasion of
privacy, slander or intentional infliction of emotional distress, harassment, negligence, gross
negligence and strict liability; any alleged unlawful act, including for any act or omission of
Seller during the term of his employment under the Employment Agreement. This Section 6
shall not release or waive any claim or cause of action that the Company, Buyer or they might have
or that may arise against Seller, in his official or individual capacity, (i) under the terms of
this Agreement, (ii) under the terms of that certain Agreement of Waiver, dated as of May 1, 2006,
by and between the Company and Seller, (iii) after the date hereof or (iv) in any stockholder
derivative litigation.
7. Miscellaneous.
(a) This Agreement, together with the Release, dated June 8, 2006, by and between the Company
and Seller, constitute the entire agreement and understanding of the parties in respect of the
subject matter hereof and supersede all prior understandings, agreements or representations by or
among the parties, written or oral, to the extent they relate in any way to the subject matter
hereof.
(b) All of the terms, agreements, covenants, representations, warranties and conditions of
this Agreement are binding upon, and shall inure to the benefit of and are enforceable by, the
parties and their respective successors, legal representatives, heirs and permitted assigns.
(c) All notices, requests and other communications provided for, or permitted to be given,
under this Agreement must be in writing and shall be given by personal delivery, by certified or
registered United States mail (postage prepaid, return receipt requested), by a nationally
recognized overnight delivery service for next day delivery, or by facsimile transmission, as
follows (or to such other address as any party may give in a notice given in accordance with the
provisions hereof):
| If to Buyer: | ||
| Radical Holdings LP | ||
| c/o Radical Management, LLC | ||
| 0000 Xxxxxxxx Xxxxxx | ||
| Xxxxxx, Xxxxx 00000 | ||
| Attn: President | ||
| Fax: (000) 000-0000 |
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| With a copy to (which does not constitute notice): | ||
| Xxxxxx X. Xxxx, Esq. | ||
| 0000 Xxxxxxxx Xxxxxx | ||
| Xxxxxx, Xxxxx 00000 | ||
| Fax: (000) 000-0000 | ||
| If to the Company: | ||
| Immediatek, Inc. | ||
| 00000 Xxxxxxxxx Xxxx | ||
| Xxxxxx, XX 00000 | ||
| Attention: President | ||
| Fax: (000) 000-0000 | ||
| If to Seller: | ||
| Xxxx Xxxx | ||
| 0000 Xxxxxxxx Xxx Xxxxx | ||
| Xxxxxxx, Xxxxx 00000 |
All notices, requests or other communications will be effective and deemed given only as follows:
(i) if given by personal delivery, upon such personal delivery, (ii) if sent by certified or
registered mail, on the fifth business day after being deposited in the United States mail, (iii)
if sent for next day delivery by overnight delivery service, on the date of delivery as confirmed
by written confirmation of delivery, (iv) if sent by facsimile, upon the transmitter’s confirmation
of receipt of such facsimile transmission, except that if such confirmation is received after 5:00
p.m. (in the recipient’s time zone) on a business day, or is received on a day that is not a
business day, then such notice, request or communication will not be deemed effective or given
until the next succeeding business day. Notices, requests and other communications sent in any
other manner, including by electronic mail, will not be effective.
(d) The acknowledgements, agreements, covenants, representations and warranties contained in
this Agreement shall survive its termination.
(e) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF TEXAS, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW PRINCIPLES.
(f) Any action, suit or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement shall only be brought in any federal court
located in Dallas County, Texas or any Texas state court located in Dallas County, Texas, and each
party consents to the exclusive jurisdiction and venue of such courts (and of the appropriate
appellate courts therefrom) in any such action, suit or proceeding and irrevocably waives, to the
fullest extent permitted by law, any objection that it may now or hereafter have to the laying of
the venue of any such action, suit or proceeding in any such court or that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum. Process in any
such action, suit or proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing, service of process on
such party as provided in Section 7(c) of this Agreement shall be deemed effective service
of process on such party.
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(g) EACH PARTY ACKNOWLEDGES THAT ANY DISPUTE THAT MAY ARISE OUT OF OR RELATING TO THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, SUCH PARTY HEREBY
EXPRESSLY WAIVES ITS RIGHT TO JURY TRIAL OF ANY DISPUTE BASED UPON OR ARISING OUT OF THIS AGREEMENT
OR ANY OTHER AGREEMENTS RELATING HERETO OR ANY DEALINGS AMONG THEM RELATING TO THE MATTERS
CONTEMPLATED HEREIN. THE SCOPE OF THIS WAIVER IS INTENDED TO ENCOMPASS ANY AND ALL ACTIONS, SUITS
AND PROCEEDINGS THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT AND CONTEMPLATED HEREBY,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS. EACH PARTY HEREBY REPRESENTS THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT IN THE
EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) SUCH PARTY
UNDERSTANDS, AND WITH THE ADVICE OF COUNSEL HAS CONSIDERED, THE IMPLICATIONS OF THIS WAIVER, (iii)
SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (iv) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND REPRESENTATIONS IN THIS SECTION
7(g).
(h) The section headings contained in this Agreement are inserted for convenience of reference
only and will not affect in any way the meaning or interpretation of this Agreement.
(i) This Agreement may be amended only by a written instrument signed by all the parties
hereto.
(j) Any party may, for itself only, (i) extend the time for the performance of any of the
obligations of any other party under this Agreement, (ii) waive any inaccuracies in the
representations and warranties of any other party contained herein or in any document delivered
pursuant hereto and (iii) waive compliance with any of the agreements or conditions for the benefit
of such party contained herein. Any such extension or waiver will be valid only if set forth in a
writing signed by the party to be bound thereby. No waiver by any party of any default,
misrepresentation or breach of warranty or covenant hereunder, whether intentional or not, may be
deemed to extend to any prior or subsequent default, misrepresentation or breach of warranty or
covenant hereunder or affect in any way any rights arising because of any prior or subsequent such
occurrence. Neither the failure nor any delay on the part of any party to exercise any right or
remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right or remedy preclude any other or further exercise of the same or of any other
right or remedy.
(k) The provisions of this Agreement will be deemed severable and the invalidity or
unenforceability of any provision will not affect the validity or enforceability of the other
provisions hereof; provided that if any provision of this Agreement, as applied to any party or to
any circumstance, is judicially determined not to be enforceable in accordance with its terms, the
parties agree that the court judicially making such determination may modify the provision in a
manner consistent with its objectives such that it is enforceable, and/or to delete specific words
or phrases, and in its modified form, such provision will then be enforceable and will be enforced.
(l) This Agreement may be executed in one or more counterparts, each of which will be deemed
an original but all of which together will constitute one and the same instrument. For purposes of
determining whether a party has signed this Agreement or any document contemplated hereby or any
amendment or waiver hereof, only a handwritten original signature on a paper document or a
facsimile copy of such a handwritten original signature shall constitute a signature,
notwithstanding any law
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relating to or enabling the creation, execution or delivery of any contract or signature by
electronic means.
(m) This Agreement has been freely and fairly negotiated among the parties. If an ambiguity
or question of intent or interpretation arises, this Agreement will be construed as if drafted
jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any
party because of the authorship of any provision of this Agreement. Any reference to any law will
be deemed to refer to such law as in effect on the date hereof and all rules and regulations
promulgated thereunder, unless the context requires otherwise. The words “include,” “includes,”
and “including” will be deemed to be followed by “without limitation.” Pronouns in the masculine,
feminine and neuter genders will be construed to include any other gender, and words in the
singular form will be construed to include the plural and vice versa, unless the context otherwise
requires. The words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of
similar import refer to this Agreement as a whole and not to any particular subdivision, unless
expressly so limited. The parties intend that each representation, warranty and covenant contained
herein will have independent significance. If any party has breached any covenant contained herein
in any respect, the fact that there exists another covenant relating to the same subject matter
(regardless of the relative levels of specificity) that the party has not breached will not detract
from or mitigate the fact that the party is in breach of the first covenant.
(n) No party may assign this Agreement without the express written consent of the other
parties.
(o) If litigation or any other action of any nature whatsoever (including any proceeding under
the U.S. Bankruptcy Code) is instituted in connection with any controversy arising out of this
Agreement or to interpret or enforce any rights, the prevailing party shall be entitled to recover
its attorneys’ and other experts’ fees and all other fees, costs, and expenses actually incurred
and reasonably necessary, as determined by the court(s), in addition to all other amounts provided
by law.
8. Authorization. The person signing this Agreement, whether individually or on
behalf of an entity, has the authority to do so and to bind the undersigned to the terms hereof.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties have set their hands on the date first above written.
| SELLER: | ||||||
| /s/ ZACH XXXX | ||||||
| Xxxxxxx Xxxx Xxxx | ||||||
| BUYER: | ||||||
| Radical Holdings LP, | ||||||
| a Texas limited partnership | ||||||
| By: | Radical Management, LLC, | |||||
| a Texas limited liability company, | ||||||
| its general partner | ||||||
| By: | /s/ XXXX XXXXX | |||||
| Name: | Xxxx Xxxxx | |||||
| Title: | President | |||||
| COMPANY (solely with respect to Sections 4, 5, 6, 7 | ||||||
| and 8 of this Agreement): | ||||||
| Immediatek, Inc., | ||||||
| a Nevada corporation | ||||||
| By: | /s/ XXXXXX XXXX | |||||
| Name: | Xxxxxx Xxxx | |||||
| Title: | Chief Executive Officer | |||||
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(STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE)
For Value Received, I hereby sell, assign and transfer unto Radical Holdings LP 111,954 shares
of the Common Stock, $0.001 par value per share, of Immediatek, Inc. standing in my name on the
books of said corporation represented by Certificate Nos. 5100, 5101, 5197, 5224 and 5226 herewith,
and do hereby irrevocably constitute and appoint Xxxxxx Xxxx or Xxxx Xxxxx attorney to transfer the
said stock on the books of the within named corporation with full power of substitution in the
premises.
| Dated Effective as of: October ___, 2006 | ||
In Presence of |
||
| Name: Xxxx Xxxx | ||
Notice: The signature(s) to this assignment must correspond with the name as written upon
the face of the certificate, in every particular, without alteration or enlargement, or any change
whatever and must be guaranteed by a commercial bank, trust company or member firm of the Boston,
New York or Midwest Stock Exchange.
