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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3 )*
(Name of Issuer)
Common Stock, par value $0.001 per share
(Title of Class of Securities)
(CUSIP Number)
Robert S. Hart, Esq.
5424 Deloache Avenue
Dallas, Texas 75220
(214) 378-5301
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
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CUSIP No. |
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45252S 30 6 |
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Page |
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2 |
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of |
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13 |
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1 |
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NAMES OF REPORTING PERSONS
Radical Holdings LP |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
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(a) þ |
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(b) o |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS (SEE INSTRUCTIONS) |
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WC & OO |
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5 |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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o |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Texas
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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0 |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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10,346,567 (a) |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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0 |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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10,346,567 (a) |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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10,346,567 (a) |
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12 |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
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o
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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96.6%(a) |
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14 |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
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PN |
(a) Includes 10,171,099 shares of common stock that
are issuable upon the conversion of 4,392,286 shares of
Series A Convertible Preferred Stock. The shares of Series A Convertible
Preferred Stock are convertible at any time at the option of Radical Holdings LP, collectively, into that number of
full shares of common stock representing 95% of the total common
stock outstanding after giving effect to the conversion. The conversion
price of the Series A Convertible Preferred Stock is subject to adjustment to effect such
result upon conversion. The 10,171,099 shares of common stock issuable upon the
conversion of 4,392,286 shares of Series A Convertible Preferred Stock and the
percent of class ownership were calculated based upon 535,321 shares of common
stock of Immediatek, Inc. outstanding on September 4, 2007. Excludes shares of
common stock owned by Paul Marin that Radical Holdings LP has the right, but
not the obligation, to purchase in the event that Mr. Marin desires to transfer those shares.
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CUSIP No. |
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45252S 30 6 |
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Page |
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3 |
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of |
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13 |
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1 |
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NAMES OF REPORTING PERSONS
Radical Management, LLC |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
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(a) þ |
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(b) o |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS (SEE INSTRUCTIONS) |
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OO |
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5 |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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o |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Texas
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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0 |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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10,346,567 (a) |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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0 |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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10,346,567 (a) |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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10,346,567 (a) |
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12 |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
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o
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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96.6%(a) |
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14 |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
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OO |
(a) Includes 10,171,099
shares of common stock that are issuable upon the conversion of 4,392,286 shares of Series A Convertible Preferred Stock. The shares
of Series A Convertible Preferred Stock are convertible at any time at the option of
Radical Holdings LP, collectively, into that number of full shares of common stock
representing 95% of the total common stock
outstanding after giving effect to the conversion. The conversion
price of the Series A Convertible Preferred Stock is subject to adjustment to
effect such result upon conversion. The 10,171,099 shares of common stock issuable
upon the conversion of 4,392,286 shares of Series A Convertible Preferred Stock and
the percent of class ownership were calculated based upon 535,321 shares of common
stock of Immediatek, Inc. outstanding on September 4, 2007. Excludes shares of common
stock owned by Paul Marin that Radical Holdings LP has the right, but not the obligation, to
purchase in the event that Mr. Marin desires to transfer those shares.
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CUSIP No. |
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45252S 30 6 |
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Page |
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4 |
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of |
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13 |
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1 |
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NAMES OF REPORTING PERSONS
Mark Cuban |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
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(a) þ |
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(b) o |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS (SEE INSTRUCTIONS) |
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OO |
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5 |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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o |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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United States of America
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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0 |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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0 |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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0 |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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0 |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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10,346,567 (a) |
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12 |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
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o
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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96.6%(a) |
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14 |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
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IN |
(a) Includes 10,171,099 shares of common
stock that are issuable upon the conversion of 4,392,286 shares of Series A Convertible
Preferred Stock. The shares of Series A Convertible Preferred Stock are convertible at any
time at the option of Radical Holdings LP, collectively, into that number of full shares of
common stock representing 95% of the total common stock outstanding after giving effect to the conversion. The conversion price of the Series A
Convertible Preferred Stock is subject to adjustment to effect such result upon conversion. The 10,171,099 shares of
common stock issuable upon the conversion of 4,392,286 shares of Series A Convertible
Preferred Stock and the percent of class ownership were calculated based upon 535,321 shares
of common stock of Immediatek, Inc. outstanding on September 4, 2007. Excludes shares of
common stock owned by Paul Marin that Radical Holdings LP has the right, but not the obligation, to purchase
in the event that Mr. Marin desires to transfer those shares.
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CUSIP No. 45252S 30 6
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SCHEDULE 13D
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Page 5 of 13 Pages |
This Amendment No. 3 to Schedule 13D amends and supplements the Schedule 13D jointly
filed by Radical Holdings LP, Radical Management, LLC, Radical Investments LP, Radical Fund
Management LLC, Radical Incubation LP, Radical Incubation Management LLC and Mark Cuban with the
Securities and Exchange Commission (the Commission) on February 3, 2006, as amended and
supplemented by Amendment No. 1 to Schedule 13D filed with the Commission on March 15, 2006 and
Amendment No. 2 to Schedule 13D filed with the Commission on October 17, 2006 (as amended and
supplemented, collectively, the Schedule 13D), relating to the common stock, $0.001 par value per
share, of Immediatek, Inc., a Nevada corporation. Initially capitalized terms used herein that are
not otherwise defined herein shall have the same meanings attributed to them in the Schedule 13D.
Except as expressly provided for herein, all Items of the Schedule 13D remain unchanged.
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Item 1. |
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Security and Issuer |
Item 1 is hereby amended and restated in its entirety to read as follows:
This Statement on Schedule 13D (as amended and supplemented, this Statement or this
Schedule 13D) relates to 10,346,567 shares of common stock, $0.001 par value per share (the
Common Stock), of Immediatek, Inc., a Nevada corporation (the Company). Includes 10,171,099
shares of Common Stock that are issuable upon the conversion of 4,392,286 shares of Series A
Convertible Preferred Stock of the Company. The shares of Series A Convertible Preferred Stock are
convertible, at any time at the option of Radical Holdings LP, a Texas limited partnership (the
Partnership), collectively, into that number of full shares of Common Stock representing 95% of
the total Common Stock outstanding after giving effect to the conversion. The conversion price of
the Series A Convertible Preferred Stock is subject to adjustment to effect such result upon
conversion. The 10,171,099 shares of Common Stock was calculated based upon 535,321 shares of
Common Stock outstanding on September 4, 2007. Excludes shares of Common Stock owned by Paul Marin
that the Partnership has the right, but not the obligation, to purchase in the event that Mr. Marin
desires to transfer those shares.
The Companys principal executive office is located at 320 South Walton, Dallas, Texas 75226.
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Item 2. |
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Identity and Background |
Item 2 is hereby amended and restated in its entirety to read as follows:
(a) This Schedule 13D is being jointly filed by the Partnership, Radical Management, LLC, a
Texas limited liability company and the sole general partner of the Partnership (the General
Partner), and Mark Cuban, the owner of all the limited partnership and membership interests in the
Partnership and the General Partner, respectively (the Principal, and together with the
Partnership and the General Partner, collectively, the Reporting Persons). The names of the
executive officers and managers (collectively, the Officers) of the General Partner are set forth
in Schedule I attached hereto and incorporated herein by reference.
(b) The address of the principal office of each of the Reporting Persons and the Officers is
5424 Deloache Avenue, Dallas, Texas 75220.
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CUSIP No. 45252S 30 6
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SCHEDULE 13D
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Page 6 of 13 Pages |
(c) The principal business of the Partnership is investments and managing those investments.
The principal business of the General Partner is to act as the general partner of the Partnership.
One of the principal businesses of the Principal is to direct the activities of the
General Partner. The name, business address, present principal occupation or employment and
citizenship of the Principal and each Officer is set forth in Schedule I attached hereto and
incorporated herein by reference.
(d) Neither the Principal nor any of the Officers have, during the last five years, been
convicted in a criminal proceeding (excluding traffic violations and similar misdemeanors).
(e) Neither the Principal nor any of the Officers were, during the last five years, a party to
a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
(f) The Principal and each of the Officers is a citizen of the United States of America.
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Item 3. |
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Source and Amount of Funds or Other Consideration |
Item 3 is hereby amended and restated in its entirety to read as follows:
On June 8, 2006, the Partnership purchased 4,392,286 shares of Series A Convertible Preferred
Stock for an aggregate purchase price of $3,000,000, which includes $347,000 of funds previously
loaned to the Company by the Partnership and credited towards the aggregate purchase price of the
Series A Convertible Preferred Stock. The Partnership made the
loans and paid the purchase from its
available working capital. (See Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer below).
On October 13, 2006, the Partnership purchased 110,618 shares of Common Stock for an aggregate
purchase price of $221,236 from Zach Bair, the former Chief Executive Officer of the Company,
pursuant to a Stock Purchase Agreement (See Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer below). The Partnership made this purchase
utilizing funds from its available working capital.
The following table sets forth purchases of Common Stock made by the Partnership in open
market transactions on November 14, 2006, utilizing funds from its available working capital.
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Number of |
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Purchase |
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Total |
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Shares of |
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Price Per |
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Consideration |
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Common Stock |
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Share |
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Per Transaction |
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1,000 |
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$ |
14.95 |
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$ |
14,950.00 |
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600 |
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$ |
14.00 |
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$ |
8,400.00 |
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200 |
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$ |
14.50 |
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$ |
2,900.00 |
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1,200 |
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$ |
15.00 |
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$ |
18,000.00 |
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Total |
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3,000 |
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$ |
44,250.00 |
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CUSIP No. 45252S 30 6
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SCHEDULE 13D
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Page 7 of 13 Pages |
On March 8, 2007, the Partnership purchased 1,336 shares of Common Stock for an aggregate
purchase price of $2,672 from Zach Bair, the former Chief Executive Officer of the Company,
pursuant to a Stock Purchase Agreement (See Item 6. Contracts, Arrangements,
Understandings or Relationships with Respect to Securities of the Issuer below). The Partnership
made this purchase utilizing funds from its available working capital.
On August 31, 2007, the Partnership sold assets valued at $151,285 to a wholly-owned
subsidiary of the Company, IMKI Ventures, Inc., in exchange for the Companys issuance to the
Partnership of 60,514 shares of Common Stock. (See Item 6. Contracts, Arrangements,
Understandings or Relationships with Respect to Securities of the Issuer below).
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Item 4. |
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Purpose of the Transaction |
Item 4 is hereby amended and restated in its entirety to read as follows:
The Partnership acquired the shares of Series A Convertible Preferred Stock and Common Stock
for investment purposes. The Partnership intends to assess its investment in the Company, from
time to time, on the basis of various factors, including, without limitation, the Companys
business, financial condition, results of operations and prospects, general economic, market and
industry conditions, as well as other developments and other investment opportunities. Depending
upon the foregoing factors or any other factors deemed relevant to the Reporting Persons, they may
acquire additional shares of Common Stock or any other securities of the Company, or dispose of all
or part of the shares of Common Stock, Series A Convertible Preferred Stock or shares of Common
Stock acquirable upon conversion of the Series A Convertible Preferred Stock, in open market
transactions, privately negotiated transactions or otherwise. Any acquisition or disposition may
be effected by the Reporting Persons at any time without prior notice. The Reporting Persons will
engage in communications, from time to time, with one or more stockholders, officers or directors
of the Company regarding the Companys operating performance, strategic direction or other matters
that could result in, or relate to, among other things, any of the matters set forth in
subparagraphs (a) through (j) of Item 4 of Schedule 13D.
Except as described in this Schedule 13D or set forth in the Exhibits attached hereto, none of
the Reporting Persons has any present plan or proposal that relates to, or could result in, any of
the events referred to in paragraphs (a) through (j), inclusive, of Item 4 of Schedule 13D. The
Reporting Persons will, however, continue to review the business of the Company and, depending upon
one or more of the factors referred to above, may in the future propose that the Company take one
or more such actions.
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Item 5. |
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Interest in Securities of the Issuer |
Item 5 is hereby amended and restated in its entirety to read as follows:
As of September 5, 2007, the Partnership was the beneficial owner of 10,346,567 shares of
Common Stock, which represents 96.6% of the Common Stock. This includes 10,171,099 shares of
Common Stock that are issuable upon the conversion of 4,392,286 shares of Series A Convertible
Preferred Stock. The shares of Series A Convertible Preferred Stock are convertible, at any time
at the option of the Partnership, collectively, into that number of full shares of Common Stock
representing 95% of the total Common Stock outstanding after giving effect to the conversion. The
conversion price of the Series A Convertible Preferred Stock is subject to adjustment to effect
such result upon conversion. The 10,171,099 shares of Common Stock issuable upon the conversion of
4,392,286 shares of Series A Convertible Preferred Stock and the percentage ownership were
calculated based upon 535,321 shares of Common Stock outstanding on September 4, 2007, according to
information provided to the Reporting Persons by the Company.
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CUSIP No. 45252S 30 6
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SCHEDULE 13D
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Page 8 of 13 Pages |
The holders of the shares of Series A Convertible Preferred Stock are entitled to vote on
all matters required or permitted to be voted upon by the stockholders of the Company. Each holder
of shares of Series A Convertible Preferred Stock is entitled to the number of votes equal to the
largest number of full shares of Common Stock into which all shares of Series A Convertible
Preferred Stock held by that holder could be converted. Except as required by law on matters
requiring class voting, the holders of the Series A Convertible Preferred Stock and Common Stock
vote together as a single class. The Certificate of Designation, Rights and Preferences
of Series A Convertible Preferred Stock (the Certificate of Designation), which describes the
terms of the Series A Convertible Preferred Stock, is filed as Exhibit 3.1 to this Schedule 13D and
incorporated herein by reference. Excludes shares of Common Stock owned by Paul Marin that the
Partnership has the right, but not the obligation, to purchase in the event that Mr. Marin desires
to transfer those shares.
The General Partner, as the general partner of the Partnership, has the power to vote, or to
direct the vote of, and the power to dispose, or to direct the disposition of, the shares of Common
Stock, the shares of Series A Convertible Preferred Stock and the shares of Common Stock acquirable
upon conversion of the Series A Convertible Preferred Stock on behalf of the Partnership. The
General Partner, the Principal and the Officers may be deemed to have beneficial ownership of these
securities. The General Partner, the Principal and the Officers disclaim beneficial ownership of
these securities, except to the extent of their respective pecuniary interests therein.
On August 31, 2007, the Partnership, the Company and IMKI Ventures, Inc., a wholly-owned
subsidiary of the Company, entered into an Asset Purchase Agreement. Pursuant to that agreement,
on August 31, 2007, the Partnership sold assets valued at $151,285 to IMKI Ventures, Inc. in
exchange for the Companys issuance to the Partnership of 60,514 shares of Common Stock at price
per share of $2.50. Except for the acquisition of Common Stock described in the immediately
preceding sentence, none of the Reporting Persons has effected any transactions in the securities
of the Company during the past 60 days.
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Item 6. |
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Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the
Issuer |
Item 6 is hereby amended and restated in its entirety to read as follows:
Securities Purchase Agreement: On January 24, 2006, the Company, Zach Bair, Paul Marin and
the Partnership entered into a Securities Purchase Agreement, which was subsequently amended on
March 3, 2006 (as amended, the Purchase Agreement), pursuant to which the Company issued and
sold, and the Partnership purchased, 4,392,286 shares of Series A Convertible Preferred Stock of
the Company for an aggregate purchase price of $3,000,000, or $0.68 per share of Series A
Convertible Preferred Stock. In the Purchase Agreement, the Company and Messrs. Bair and Marin
represented and warranted to, and covenanted with, the Partnership as to various matters. A copy
of the Securities Purchase Agreement and the First Amendment to Securities Purchase Agreement is
attached as Exhibit 1.1 and 1.2, respectively, to this Schedule 13D and incorporated herein by
reference. The purchase and sale of 4,392,286 shares of Series A Convertible Preferred Stock
pursuant to the Purchase Agreement was consummated on June 8, 2006.
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CUSIP No. 45252S 30 6
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SCHEDULE 13D
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Page 9 of 13 Pages |
Investors Rights Agreement: In connection with the purchase and sale of the Series A
Convertible Preferred Stock on June 8, 2006, the Company, the Partnership and Messrs. Bair and
Marin entered into an Investors Rights Agreement (the Investors Rights Agreement). The
Investors Rights Agreement grants the Partnership certain demand, piggy-back and shelf
registration rights and sets forth the procedures pursuant to which those rights may be exercised
and effected. The Investors Rights Agreement also grants the Partnership rights of first refusal
to purchase any or all of the securities of the Company that Messrs. Bair or Marin propose to sell
or otherwise transfer on the same terms and conditions as the proposed sale or transfer by them.
Further, the Investors Rights Agreement provides that Messrs. Bair and Marin are prohibited from
selling or otherwise transferring any securities of the Company owned by them for a period of three
years. After three years, Messrs. Bair and Marin can sell or otherwise transfer only half of the
securities owned by them. If, however, either Messrs. Bair or Marin is terminated for a reason
other than cause, he can sell a total of 10% of the securities owned by him in any given month.
The Investors Rights Agreement is filed as Exhibit 4.1 to this Schedule 13D and incorporated
herein by reference. As described in more detail below, pursuant to a Stock Purchase Agreement,
dated October 13, 2006, by and among the Company, the Partnership and Mr. Bair, the Partnership and
the Company agreed to release Mr. Bair from certain of his obligations, which included his
obligations under the Investors Rights Agreement. Further, Mr. Marin was terminated on April 6,
2007 and, as a result, was granted the right to a total of 10% of the securities owned by him in
any given month subject to the Partnerships right of first refusal.
Board of Directors: Pursuant to the Investors Rights Agreement and the terms of the Series A
Convertible Preferred Stock, which are described in the Certificate of Designation, for so long as
any shares of the Series A Convertible Preferred Stock originally issued under the Purchase
Agreement remain outstanding, the holders of a majority-in-interest of the shares of the Series A
Convertible Preferred Stock originally issued under the Purchase Agreement then outstanding shall
have the right to designate all the persons to serve as directors on the Board of Directors of the
Company and its subsidiaries. If the holders of the shares of the Series A Convertible Preferred
Stock originally issued under the Purchase Agreement then outstanding choose not to designate any
directors, the holders of a majority-in-interest of the shares of the Series A Convertible
Preferred Stock originally issued under the Purchase Agreement then outstanding may appoint a
designee to serve as an observer at all meetings of the Companys or its subsidiaries Board of
Directors and committees thereof.
Protective Provisions: The Certificate of Designation and the Investors Rights Agreement
provide that, unless the directors designated by the holders of the shares of the Series A
Convertible Preferred Stock originally issued under the Purchase Agreement control the Board of
Directors of the Company with respect to all actions, for so long as any shares of the Series A
Convertible Preferred Stock originally issued under the Purchase Agreement remain outstanding,
except where the vote or written consent of the holders of a greater number of shares of the
Company is required by law or by the Companys Articles of Incorporation, and in addition to any
other vote required by law or by the Companys Articles of Incorporation, the Company shall not,
and the Company shall cause its subsidiaries not to, as applicable, without the prior vote or
written consent of the holders of at least 75% of the shares of the Series A Convertible Preferred
Stock originally issued under the Purchase Agreement then outstanding:
(i) amend the articles or bylaws in any manner that would alter or change any of the rights,
preferences, privileges or restrictions of the Series A Convertible Preferred Stock or the shares
issuable upon conversion of the Series A Convertible Preferred Stock;
(ii) reclassify any outstanding securities into securities having rights, preferences or
privileges senior to, or on a parity with, the Series A Convertible Preferred Stock;
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CUSIP No. 45252S 30 6
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SCHEDULE 13D
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Page 10 of 13 Pages |
(iii) authorize or issue any additional shares of capital stock (other than to holders of the
Series A Convertible Preferred Stock);
(iv) merge or consolidate with or into any corporation or other person;
(v) sell all or substantially all their respective assets in a single transaction or series of
related transactions;
(vi) license all or substantially all of their respective intellectual property in a single
transaction or series of related transactions;
(vii) liquidate or dissolve;
(viii) alter any rights of the holders of the Series A Convertible Preferred Stock or change
the size of the Board of Directors;
(ix) declare or pay any dividends (other than dividends payable to the Company or its
subsidiaries) on, or declare or make any other distribution, directly or indirectly, on account of,
any shares of Common Stock now or hereafter outstanding;
(x) repurchase any outstanding shares of capital stock;
(xi) approve or modify by 10% or more the aggregate amount of any annual or other operating or
capital budget, or approve or modify by 50% or more any single line item of any such operating or
capital budget;
(xii) increase the salary of any officer or employee or pay any bonus to any officer, director
or employee not contemplated in a budget or bonus plan approved by directors designated by the
holders of the shares of the Series A Convertible Preferred Stock originally issued under the
Purchase Agreement then outstanding;
(xiii) retain, terminate or enter into any salary or employment negotiations or employment
agreement with any employee or any future employee;
(xiv) incur indebtedness (other than trade payables) or enter into contracts or leases that
require payments in excess of $5,000 in the aggregate;
(xv) make or incur any single capital expenditure;
(xvi) award stock options, stock appreciation rights or similar employee benefits or determine
vesting schedules, exercise prices or similar features;
(xvii) make any material change in the nature of its business or enter into any new line of
business, joint venture or similar arrangement;
(xviii) pledge its assets or guarantee the obligations of any other individual or entity;
(xix) recommend approval of any new equity incentive plan;
(xx) form or acquire any subsidiary, joint venture or similar business entity; or
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CUSIP No. 45252S 30 6
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SCHEDULE 13D
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Page 11 of 13 Pages |
(xxi) directly or indirectly enter into, or permit to exist, any material transaction with any
affiliate of the Company, any director or officer or any affiliate of a director or officer, or
transfer, pay, loan or otherwise obligate the Company to give cash, services, assets or other items
of value to affiliates, officers or directors or any affiliate of a officer or director or commit
to do any of the preceding, except for employee compensation or for reimbursement of ordinary
business expenses.
The above summary description of the Purchase Agreement, the Certificate of Designation and
the Investors Rights Agreement is not intended to be complete and is qualified in its entirety to
the full text of those agreements, which are incorporated herein by reference. The terms of the
Series A Convertible Preferred Stock are described in greater detail in the Certificate of
Designation, the full text of which is incorporated herein by reference. A copy of the Securities
Purchase Agreement, the First Amendment to Securities Purchase Agreement, the Certificate of
Designation and the Investors Rights Agreement is attached as Exhibits 1.1, 1.2, 3.1 and 4.1,
respectively, to this Schedule 13D.
Stock Purchase Agreement: On October 13, 2006, the Partnership, Mr. Bair and the Company
entered into a Stock Purchase Agreement (the Stock Purchase Agreement), whereby the Partnership
purchased 110,618 shares of Common Stock owned by Mr. Bair for an aggregate purchase price of
$221,236, or $2.00 per share of Common Stock. Mr. Bair previously issued a warrant to purchase
1,336 shares of Common Stock owned by him to a third-party, which expired on February 19, 2007.
Pursuant to the Stock Purchase Agreement, the Partnership had the right, but not the obligation, to
purchase from Mr. Bair any shares of Common Stock that were not acquired by the third-party
pursuant to that warrant at a purchase price of $2.00 per share. That warrant expired without
exercise, and on March 8, 2007, the Partnership purchased all of the shares subject to that warrant
from Mr. Bair at purchase price of $2.00 per share. Further, the Stock Purchase Agreement provided
that the Company and the Partnership release Mr. Bair, and Mr. Bair release the Company and the
Partnership, from, among other things, any and all actions, liabilities, obligations and damages
arising prior to October 13, 2006; provided, however, Mr. Bair was not released in any manner with
respect to stockholder derivative litigation. This summary description of the Stock Purchase
Agreement is not intended to be complete and is qualified in its entirety to the full text of that
agreement, a copy of which is filed as Exhibit 5.1 to this Schedule 13D and incorporated herein by
reference.
Management Services: Since June 8, 2006, personnel of Radical Incubation LP, an affiliate of
the Partnership, have provided certain management services, including, among others, legal,
financial and technology services, to the Company and DiscLive, Inc., a wholly-owned subsidiary of
the Company. Management estimated the cost of those services was approximately $29,000 during the
period from June 8, 2006 through December 31, 2006. The cost of those services was determined by
multiplying the hourly rate of the personnel providing those services by the estimated number of
hours expended performing those services. Radical Incubation LP did not require payment for those
services. Accordingly, the Company recorded the cost of those services as a deemed contribution by
the Partnership and as non-cash consulting expense in the financial statements for the year ended
December 31, 2006.
On February 23, 2007, but effective as of January 1, 2007, the Company and DiscLive, Inc.
entered into a Management Services Agreement with Radical Incubation LP. Pursuant to this
Management Services Agreement, personnel of Radical Incubation LP, including the directors of the
Company, provide certain management services to the Company and DiscLive, Inc., including, among
others, legal, financial, marketing and technology. These services are provided to the Company and
DiscLive, Inc. at a cost of $3,500 per month; however, the Company is not
required to pay these fees and expenses and, accordingly, accounts for these costs of services as a
deemed contribution to the Company by the Partnership. This summary description of the Management
Services Agreement is not intended to be complete and is qualified in its entirety to the full text
of that agreement, a copy of which is filed as Exhibit 6.1 to this Schedule 13D and incorporated
herein by reference.
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CUSIP No. 45252S 30 6
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SCHEDULE 13D
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Page 12 of 13 Pages |
Asset Purchase Agreement: On August 31, 2007, the Partnership, the Company and IMKI Ventures,
Inc., a wholly-owed subsidiary of the Company, entered into an Asset Purchase Agreement (the Asset
Purchase Agreement). In accordance with the Asset Purchase Agreement, on August 31, 2007, IMKI
Ventures, Inc. purchased an e-commerce website in development and certain related assets from the
Partnership in exchange for the Companys issuance to the Partnership of 60,514 shares of Common
Stock. The determination of the number of shares of Common Stock was the result of the
quotient of $151,285, the value of the assets, and the closing price of the Common Stock as
reported by the Over-the-Counter Bulletin Board on the trading day immediately preceding the date
of closing, or $2.50 per share of Common Stock. In the Asset Purchase Agreement, the Partnership
and the Company and IMKI Ventures, Inc. represented and warranted to, and covenanted with, each
other as to various matters, including, without limitation, the Partnerships title to the assets.
This summary description of the Asset Purchase Agreement is not intended to be complete and is
qualified in its entirety to the full text of that agreement, a copy of which is filed as Exhibit
7.1 to this Schedule 13D and incorporated herein by reference.
Except for the items described in response to this Item 6, to the best knowledge of the
Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or
otherwise) among the persons named in Item 2 and between such persons and any person with respect
to any of the securities of the Company, including, but not limited to, transfer or voting of any
of the securities, finders fees, joint ventures, loan or option arrangements, puts or calls,
guarantees of profits, division of profits or loss, or the giving or withholding of proxies.
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Item 7. |
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Material to Be Filed as Exhibits |
Item 7 is hereby supplemented as follows:
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Exhibit |
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Number |
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Description of Exhibit |
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6.1 |
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Management Services Agreement, dated February 23, 2007, but
effective January 1, 2007, by and among Immediatek, Inc.,
DiscLive, Inc. and Radical Incubation LP (filed as Exhibit 10.21
to Immediatek, Inc.s Current Report on Form 8-K filed on February
26, 2007 and incorporated herein by reference). |
7.1 |
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Asset Purchase Agreement, dated August 31, 2007, by and among
Immediatek, Inc., IMKI Ventures, Inc. and Radical Holdings LP
(filed as Exhibit 10.22 to Immediatek, Inc.s Current Report on
Form 8-K filed on September 6, 2007 and incorporated herein by
reference). |
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CUSIP No. 45252S 30 6
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SCHEDULE 13D
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Page 13 of 13 Pages |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and correct.
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Date: September 5, 2007 |
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RADICAL HOLDINGS LP, |
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a Texas limited partnership |
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By: |
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Radical Management LLC,
a Texas limited liability company,
its general partner |
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By:
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/s/ MARK CUBAN |
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Name:
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Mark Cuban |
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Title:
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President |
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RADICAL MANAGEMENT LLC, |
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a Texas limited liability company |
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By: |
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/s/ MARK CUBAN |
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Name: |
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Mark Cuban |
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Title: |
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President |
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/s/ MARK CUBAN |
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Mark Cuban |
SCHEDULE I
MANAGERS AND EXECUTIVE OFFICERS
Set forth below is each manager and executive officer of Radical Management, LLC. The
principal address of Radical Management LLC and the current business address for each individual
listed below is 5424 Deloache Avenue, Dallas, Texas 75220. Each such person is a citizen of the
United States.
Mark Cuban is the President and Manager of Radical Management, LLC. Mr. Cuban is a private
business owner and investor.
Martin Woodall is the Vice President and Treasurer of Radical Management, LLC. Mr. Woodall
serves in similar capacities with various entities owned by Mr. Cuban.
Robert S. Hart is the Secretary of Radical Management, LLC. Mr. Hart serves as the general
counsel to various entities owned by Mr. Cuban.
Schedule I