SECOND AMENDMENT TO AGREEMENT, SETTLEMENT AND RELEASE
Exhibit
10.9.3
SECOND
AMENDMENT TO
THIS
SECOND AMENDMENT TO AGREEMENT, SETTLEMENT AND RELEASE (this “Amendment”)
is
made and entered into as of May 15, 2006, by and between Immediatek, Inc.,
a
Nevada corporation (the “Company”),
and
Xxxx Xxxxxx & Company, a California corporation (“Stockholder”).
Each
initially capitalized term used, but not otherwise defined, herein shall have
the same meanings assigned to it in the Amended Agreement (hereinafter
defined).
RECITALS:
WHEREAS,
the Company and Stockholder are parties to that certain Agreement, Settlement
and Release, dated as of January 23, 2006 (the “Agreement”);
WHEREAS,
the Company and Stockholder previously amended the Agreement pursuant to that
certain First Amendment to Agreement, Settlement and Release, dated as of March
15, 2006 (the “Prior
Amendment,”
and
together with the Agreement, collectively, the “Amended
Agreement”);
and
WHEREAS,
the Company and Stockholder desire to further amend the Amended Agreement
to
the
extent provided in this Amendment.
AGREEMENT:
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
in this Amendment and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
to
be legally bound, hereby agree as follows:
1. Amendment
to the Amended Agreement.
Section
9 of the Amended Agreement is hereby deleted in its entirety and replaced with
the following:
“9. Termination.
This
Agreement shall become null and void and of no further force or effect in the
event that the closing of the Proposed Investment does not occur on or prior
to
July 1, 2006.”
2. Miscellaneous.
(a) Effect
of Amendment.
Stockholder and the Company hereby agree and acknowledge that, except as
expressly provided in this Amendment, the Amended Agreement remains in full
force and effect and has not been modified or amended in any respect, it being
the intention of Stockholder and the Company that this Amendment and the Amended
Agreement be read, construed and interpreted as one and the same instrument.
To
the extent that any conflict exists between this Amendment and the Amended
Agreement, the terms of this Amendment shall control and govern.
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(b) This
Amendment may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the same
instrument. This Amendment will become effective when one or more counterparts
have been signed by each of the parties and delivered to the other parties.
For
purposes of determining whether a party has signed this Amendment 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 relating to or enabling the creation, execution or delivery of any contract
or signature by electronic means.
SIGNATURE
PAGE FOLLOWS
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IN
WITNESS WHEREOF, Stockholder and the Company have executed this Amendment as
of
the day and year first above written.
|
Company:
|
IMMEDIATEK,
INC.,
|
|
|
a
Nevada corporation
|
||
| |
|
|
| By: | /s/ XXXX XXXXX | |
| Name: |
Xxxx Xxxxx |
|
| Title: | Chief Operating Officer | |
|
Stockholder:
|
XXXX
XXXXXX &
COMPANY
|
|
| |
|
|
| By: | /s/ XXXX XXXXXXXXXX | |
| Name: |
Xxxx Xxxxxxxxxx |
|
| Title: | President – Investment Division | |
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