another s8 out today for 2 mil
plus this
must be getting cards in order.
otc heating all over
WHEREAS:
(A) Immediatek is a privately-held ESP company, the business of which is more-
fully described in the August 2002 Business Plan incorporated by reference
herein;
(B) MODG is a fully-reporting publicly-traded company in good standing and
current in all filings with the U. S. Securities and Exchange Commission
("SEC"); and,
(C) MODG and Immediatek have agreed upon signing and closing of the MODG-
Immediatek Merger Agreement that Immediatek shall immediately file with
the SEC for approval of a forty million (40,000,000) share S-8 offering
according to the terms and conditions hereafter set out;
NOW THEREFORE THIS AGREEMENT WITNESSES that for and in consideration of the sum
of $10.00 now paid by MODG to Immediatek, and for other good and valuable
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consideration, the receipt and sufficiency whereof is hereby acknowledged by
Immediatek, the parties agree as follows:
ARTICLE 1 - INTERPRETATION
--------------------------
1.1 Interpretation
In this Agreement, unless otherwise provided:
(a) Any words defined elsewhere in the Agreement shall have the particular
meaning ascribed thereto;
(b) Words (including defined terms) using or importing the singular number
include the plural and vice versa and words importing one gender only
shall include all genders and words importing persons in this Agreement
shall include individuals, partnerships, corporations and any other
entities, legal or otherwise;
(c) The headings used in this Agreement are for ease of reference only and
shall not affect the meaning or the interpretation of this Agreement;
(d) Unless otherwise stated, a reference herein to a numbered or lettered
ARTICLE, paragraph, clause or schedule refers to the ARTICLE, paragraph,
clause or schedule bearing that number or letter in this Agreement. A
reference to "this Agreement", "hereof", "hereunder", "herein" or words
of similar meaning, means this Agreement including the schedules hereto,
together with any amendments thereof.
1.2 Currency
All dollar amounts expressed herein shall be currency of the United States
of America.
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES
------------------------------------------
2.1 Mutual Representations and Warranties
MODG and Immediatek represents and warrants to one another and the other parties
hereto that:
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Immediatek, Inc. -- S-8 Stock Distribution Agreement November 18, 2002
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(a) it is a body corporate duly incorporated or continued, organized and
validly subsisting under the laws of its incorporating or continued
jurisdiction; and,
(b) it has full power and authority to carry on its business and to enter into
this Agreement and any agreement or instrument referred to or contemplated
by this Agreement; and,
(c) all corporate authorizations have been obtained for the execution of this
Agreement and for the performance of its obligations hereunder; and,
(d) no proceedings are pending for and it is unaware of any basis for the
institution of any proceedings leading to its dissolution or winding-up.
2.2 MODG's Representations and Warranties
MODG represents and warrants to Immediatek that:
(a) MODG is a Nevada corporation, and is in good standing with all applicable
Federal, State and local regulatory authorities;
(b) There are no proceedings pending for, nor is MODG aware of any basis for
the institution of any proceedings leading to the placing of MODG into
bankruptcy or subject to any other laws governing the affairs of insolvent
corporations;
(c) There are no outstanding agreements or options to acquire or purchase the
Restricted Common Shares or any portion thereof;
(d) The Board of Directors of MODG has adopted a binding resolution authorizing
MODG to enter into this agreement, and to perform all of the acts
contemplated herein.
2.3 Immediatek's Representations and Warranties
Immediatek represents and warrants to MODG that:
(a) Immediatek is the legal and beneficial owner of the ESP Business described
in the August 2002 Business Plan;
(b) Immediatek is a Texas corporation, and is in good standing with all
applicable Federal, State and local regulatory authorities;
(c) There are no proceedings pending for, nor is Immediatek aware of any basis
for the institution of any proceedings leading to the placing of
Immediatek into bankruptcy or subject to any other laws governing the
affairs of insolvent corporations; and,
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(d) The Board of Directors of Immediatek has adopted a binding resolution
authorizing Immediatek to enter into this agreement, and to perform all of
the acts contemplated herein.
2.4 Survival of Representations and Warranties
The representations and warranties contained in this Article are conditions on
which the parties have relied in entering into this Agreement and shall survive
the execution, and each party will indemnify and save the other harmless from
all loss, damage, costs, actions and suits arising out of or in connection with
any breach of any representation, warranty, covenant, agreement or condition
made by them and contained in this Agreement. A party may waive any of such
representations, warranties, covenants, agreements or conditions in whole or in
part at any time without prejudice of its right in respect of any other breach
of the same or any other representation, warranty, covenant, agreement or
condition.
This is the sole Agreement between the parties, and the terms and conditions
of this Agreement shall replace and supercede any and all other agreements
between the parties. This Agreement may be executed simultaneously in two (2)
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. The provisions
and terms of this Agreement shall be binding upon the successors, assigns and
heirs of all parties hereto.
ARTICLE 3 - DISTRIBUTION OF S-8 SHARES
--------------------------------------
3.1 Terms & Conditions of S-8 Share Distribution
Immediately upon signing the Merger Agreement with Immediatek, MODG shall file
the necessary paperwork with the U. S. Securities & Exchange Commission for an
S-8 Share Offering in the amount of forty million (40,000,000) free-trading
MODG common shares (the "S-8 Shares").
The S-8 shares shall be used for executive compensation and management
consulting services over the 2002-2003 period necessary for the growth and
expansion of the ESP Business.
Each of the individuals noted below will enter into separate consulting
agreements with Immediatek detailing the services to be rendered to the company,
as well as the term of their consulting agreements. The parties to this
Agreement (and or their successors/assigns) understand that the S-8 Shares shall
be distributed by Immediatek as follows:
Mr. Zach Bair two million fifty thousand (2,050,000) free-trading
common shares
Mr. Tim DeWitt one million four hundred fifty thousand (1,450,000)
free-trading common shares
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Mr. Walt Riddick five hundred thousand (500,000) free-trading
common shares
Mr. Frank Merhib eleven million three hundred thirty-three thousand
three hundred thirty-four (11,333,334) free-trading
common shares
Mr. Stephen Doppler eleven million three hundred thirty-three thousand
three hundred thirty-three (11,333,333) free-trading
common shares
Mr. Norman Olshansky six million six hundred sixty-six thousand six
hundred sixty-seven (6,666,667) free-trading
common shares
Mr. Brian Kitts six million six hundred sixty-six thousand six
hundred sixty-seven (6,666,667) free-trading
common shares
The above-mentioned businesses and individuals (and/or their successors or
assigns) shall promptly provide Immediatek with the necessary information
(mailing addresses and Social Security numbers) so that Immediatek may
facilitate the issuance and delivery of the S-8 Shares.
ARTICLE 4 - JURISDICTION & ARBITRATION
----------------------------------------
4.1 Choice of Law
All matters arising out of this Agreement shall be determined and decided under
the laws, regulations and rules of the State of Texas in the jurisdiction in
which Immediatek is located.
4.2 Single Arbitrator
Any matter required or permitted to be referred to arbitration hereunder will
be determined by a single arbitrator to be appointed by the parties hereto.
4.3 Prior Notice
Any party may refer any such matter to arbitration by written notice to the
other party and, within ten (10) days after receipt of such notice, the parties
will agree on the appointment of an arbitrator.
No person will be appointed as an arbitrator hereunder unless such person agrees
in writing to act.
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4.4 No Agreement on the Arbitration
If the parties cannot agree on a single arbitrator as provided in this Section
4.4, or if the person appointed is unwilling or unable to act, either party may
submit the matter to arbitration before a single arbitrator in accordance with
the laws governing arbitration within the State of Texas, more specifically,
the rules and regulations of the American Arbitration Association.
4.5 Conduct of Arbitration
Except as specifically provided in this Article 4, an arbitration hereunder
shall be conducted in accordance with the rules and regulations of the American
Arbitration Association. The arbitrator shall fix a time and place within the
jurisdiction in which the Property is located for the purpose of hearing the
evidence and representations of the parties and he shall preside over the
arbitration and determine all questions of procedure not provided for under such
Act or this Article 4. After hearing any evidence and representations that the
parties may submit, the arbitrator shall make an award and reduce the same to
writing and deliver one copy thereof to each of the parties. The decision of
the arbitrator will be made within forty-five (45) days after his appointment,
subject to any reasonable delay due to unforeseen circumstances. The expense of
the arbitration shall be paid as specified in the award. The award of the
single arbitrator shall be final and binding upon each of the parties.
ARTICLE 5 - GENERAL
--------------------
5.1 Time of the Essence
Time shall be of the essence of this Agreement.
5.2 Further Acts
Subject to the other Sections of this Agreement, each party shall make
reasonable efforts in good faith, at the request of any other party, and at the
expense of the requesting party, to execute and deliver any further documents
and do all acts and things as that party may reasonably require in order to
carry out the true intent and meaning of this Agreement.
5.3 No Partnership
Nothing in this Agreement or in the relationship of the parties hereto shall be
construed as in any sense creating a partnership among the parties or as giving
to any party any of the rights or subjecting any party to any of the creditors
of the other parties.
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5.4 Parties of Interest
This Agreement shall enure to the benefit of and be binding upon the parties and
their respective personal representatives, administrators, heirs, successors and
permitted assigns.
5.5 Governing Law
This Agreement shall be construed and governed exclusively by the regulations
and rules of the United States of America in the Federal jurisdiction in which
the Property is located, except where matters are expressed herein to be subject
to arbitration, the laws of the United States of America applicable therein, and
the Federal courts of the United States of America shall have exclusive
jurisdiction to hear and determine all disputes arising hereunder.
Each of the parties hereto irrevocably attorns to the jurisdiction of said
courts and consents to the commencement of proceedings in such courts.
This Section shall not be construed to affect the rights of a party to enforce a
judgement or award outside the United States of America, including the right to
record and enforce a judgement or award in any other jurisdiction or the
jurisdiction in which the Property is situated.
5.6 Survival
Each party hereby agrees that all representations, warranties and other
provisions contained in this Agreement shall forever survive the execution and
delivery of this Agreement.
5.7 Severability
The invalidity or unenforceability of any provision in this Agreement shall not
affect the validity or enforceability of any other provision or part of this
Agreement, and the parties hereby undertake to renegotiate in good faith any
such invalid or unenforceable provision, with a view to concluding valid and
enforceable arrangements as nearly as possible the same as those contained in
this Agreement.
5.8 Entire Agreement
The provisions contained in this Agreement constitute the entire agreement
between the parties with respect to the subject matter and supersede all prior
communications, proposals, representations and agreements, whether oral or
written, with respect to the subject matter of this Agreement.
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5.9 Notices
All notices, demands and payments under this Agreement must be in writing and
sent by certified mail, or may be delivered personally or by facsimile
transmission to the addresses as first written above, or such other addresses as
may from time to time be notified in writing by the parties followed by the
mailing of such notice by certified mail.
5.10 Independent Legal Advice
The parties to this Agreement acknowledge and agree that they have had
opportunity to seek independent legal advice with respect to the subject matter
of this Agreement and, further, each of parties hereby represent and warrant to
the other party that they have sought independent legal advice or waived such
advice.
5.11 Waiver
Failure by any party hereto to insist in any instance upon the strict
performance of any one of the covenants contained herein shall not be construed
as a waiver or relinquishment of such covenant. No waiver by any party hereto
of any such covenant shall be deemed to have been made unless expressed in
writing and signed by the waiving party.
5.12 Amendments
No term or provision hereof may be amended except by an instrument in writing
signed by all of the parties to this Agreement.
5.13 Counterparts
This Agreement may be executed in several counterparts (including by fax), each
of which when so executed shall be deemed to be an original and shall have the
same force and effect as an original and such counterparts together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF the corporate seals of Immediatek and MODG have been
hereunto affixed in the presence of their duly authorized officers in that
behalf.
ModernGroove Entertainment, Inc.
By:
-----------------------------------------
Name:
Position:
STATE OF UTAH )
) ss.
COUNTY OF )
---------------
On this day of November, 2002, personally appeared before me, a
----
notary public,
, who acknowledged that he had executed the above
-----------------------
instrument.
-----------------------------------
Notary Public in and for said state
(SEAL)
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Agreed to and accepted by the undersigned on this 18 day of November, 2002:
Immediatek, Inc.
By: /s/ Zach Bair
---------------------------------------
Name: Zach Bair
Position: CEO
STATE OF FLORIDA )
) ss.
COUNTY OF BROWARD )
--------------
On this 18 day of November, 2002, personally appeared before me, a
notary public,
DL# TEXAS
DL# 14654061 , who acknowledged that he had executed the above instrument.
-------------
/s/ Susan Tipps
-----------------------------------
Notary Public in and for said state
----------------------------------------------------
(SEAL) - Notary Public SUSAN TIPPS -
- (SEAL) MY COMMISSION # CC 799305 -
- State of EXPIRES: December 23, 2002 -
- Florida Bonded Thru Notary Public Underwriters-
----------------------------------------------------
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Immediatek, Inc.-Modern Groove Entertainment, Inc. Merger Agreement
November 18 2002 |
