FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT
Exhibit 10.2
THIS FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT (this “Amendment”) is made and
entered into as of March 3, 2006, by and among Immediatek, Inc., a Nevada corporation (the
“Company”), Radical Holdings LP, a Texas limited partnership (“Radical”), Xxxx
Xxxx, an individual residing in the State of Texas (“Xxxx”), and Xxxx Xxxxx, an individual
residing in the State of Texas (“Marin,” and together with Xxxx, collectively, the
“Controlling Stockholders”). Each initially capitalized term used but not otherwise
defined herein shall have the meanings assigned to it in the Securities Purchase Agreement
(hereinafter defined).
RECITALS:
WHEREAS, the Company, Radical and the Controlling Stockholders are parties to that certain
Securities Purchase Agreement, dated as of January 24, 2006 (the “Securities Purchase
Agreement”); and
WHEREAS, the Company, Radical and the Controlling Stockholders desire to amend the Securities
Purchase 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. Amendments to the Securities Purchase Agreement.
(a) Paragraph E of the Recitals of the Securities Purchase Agreement is hereby deleted in its
entirety and replace with the following:
“E. Among other conditions to the consummation of the transactions contemplated by this
Agreement, the Company’s Board of Directors and shareholders are required to adopt and approve, and
the Company will cause to occur, a one hundred-to-one reverse split of the Company’s Common Stock
(the “Reverse Split”).”
(b) Section 1.02 of the Securities Purchase Agreement is hereby deleted in its entirety and
replaced with the following:
“Section 1.02 Closing. The Closing shall take place at 10:00 a.m.
(local time) at the offices of Jenkens & Xxxxxxxxx, P.C., 0000 Xxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, on April 4, 2006, or at such other location, date and
time as may be agreed upon between the Company and the Purchaser (such closing
being called the “Closing” and such date and
time being called the “Closing Date”). At the Closing, the Company shall issue
and deliver to the Purchaser a duly issued certificate representing the 4,392,286
Series A Shares. As payment in full for the Series A Shares, on the Closing Date,
the Purchaser shall pay the Total Purchase Price, less any amounts disbursed
pursuant to Section 5.14 (such amounts shall be credited towards the Total
Purchase Price), by wire transfer or check, to the Company.”
(c) Subsection 4.01(j) of the Securities Purchase Agreement is hereby deleted in its entirety.
(d) Subsection 4.02(e) of the Securities Purchase Agreement is hereby deleted in its entirety.
(e) Section 5.14 of the Securities Purchase Agreement is hereby deleted in its entirety and
replaced with the following:
“Section 5.14 Funds Prior to Closing. The Purchaser may, from time
to time, in its sole discretion, prior to the Closing, loan funds to the Company,
Subsidiaries of the Company or their respective Affiliates. Any funds loaned to
the Company, Subsidiaries of the Company or their respective Affiliates: (i)
shall be applied in strict accordance with the uses approved by the Purchaser,
(ii) shall, if the Closing occurs, be fully credited towards the Total Purchase
Price, and (iii) shall, if this Agreement is terminated pursuant to Article VI or
for any reason whatsoever, be repaid in full to the Purchaser, without interest
and without deduction thereon, within thirty (30) days following the date of the
termination of this Agreement. In the event that such funds loaned to the
Company, Subsidiaries of the Company or their respective Affiliates are not repaid
pursuant to item (iii) immediately above, the Company shall, and shall cause its
Subsidiaries to, make in favor of the Purchaser a non-interest bearing note in the
aggregate amount loaned by the Purchaser to the Company, Subsidiaries of the
Company or their respective Affiliates and grant the Purchaser a security interest
in all the assets of the Company and Subsidiaries of the Company to secure the
repayment of all amounts due and payable under such note or notes. Such note or
notes shall have a term of ninety (90) days, and such note or notes and security
agreement shall be in a form reasonably satisfactory to the Purchaser.”
(f) Section 5.18 of the Securities Purchase Agreement is hereby deleted in its entirety and
replace with the following:
“Section 5.18 Other Items. The Company shall have completed or
resolved, and shall have caused its Subsidiaries to have completed and resolved,
all of the actions and items listed in Schedule 5.18 hereto to the
Purchaser’s reasonable satisfaction on or prior to the Closing Date. In
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connection therewith, the Purchaser and its counsel shall have a right to
review, comment and approve all materials filed with any federal, state, municipal
or other governmental body, department, commission, board, bureau, agency or
instrumentality, domestic or foreign and all agreements entered into. Purchaser
hereby covenants and agrees not to unreasonably interfere with, or hinder, the
Company’s performance of this Section 5.18.”
(g) The definition of “Transaction Documents” in Section 7.19 of the Securities Purchase
Agreement is hereby deleted in its entirety and replaced with the following:
“Transaction Documents” shall mean this Agreement, the Investor’s Rights
Agreement, the Satisfaction Agreements, the Cancellation Agreements, the Waivers,
the Closing certificates, the Restated Articles, the Certificate of Designation,
the Non-Competition Agreements, the Non-Disclosure and Proprietary Information and
Intention Agreements, and any other documents or agreements required as a
condition to the Closing or required to be delivered by the Company to the
Purchaser.”
(h) Exhibit A to the Securities Purchase Agreement is hereby deleted in its entirety and
replaced with Exhibit A to this Amendment.
(i) Exhibit B to the Securities Purchase Agreement is hereby deleted in its entirety and
replaced with Exhibit B to this Amendment.
(j) Exhibit E to the Securities Purchase Agreement is hereby deleted in its entirety.
2. Miscellaneous.
(a) Effect of Amendment. The Company, Radical and the Controlling Stockholders hereby
agree and acknowledge that, except as expressly provided in this Amendment, the Securities Purchase
Agreement remains in full force and effect and has not been modified or amended in any respect, it
being the intention of the Company, Radical and the Controlling Stockholders that this Amendment
and the Securities Purchase Agreement be read, construed and interpreted as one and the same
instrument. To the extent that any conflict exists between this Amendment and the Securities
Purchase Agreement, the terms of this Amendment shall control and govern.
(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
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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, the Company, Radical and the Controlling Stockholders have executed this
Amendment as of the day and year first above written.
| Company: | IMMEDIATEK, INC., | |||||
| a Nevada corporation | ||||||
| By: | ||||||
| Name: | Xxxx Xxxx | |||||
| Title: | President & Chief Executive Officer | |||||
| Controlling Stockholders: | ||||||
| Xxxx Xxxx | ||||||
| Xxxx Xxxxx | ||||||
| Radical: | RADICAL HOLDINGS LP, | |||||
| a Texas limited partnership | ||||||
| By: | Radical Management LLC, | |||||
| a Texas limited liability company, | ||||||
| its general partner | ||||||
| By: | ||||||
| Name: | Xxxx Xxxxx | |||||
| Title: | President | |||||
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Exhibit A
FORM OF CERTIFICATE OF DESIGNATION
(attached)
Exhibit B
FORM OF AMENDED AND RESTATED ARTICLES
(attached)
