ex104.htm


Exhibit 10.3






















































STOCK PURCHASE AGREEMENT







AMONG







TUNEIN MEDIA, INC.,







AND







NEWMARKET TECHNOLOGY, INC.







 

 










































DATED FEBRUARY 11, 2010










































STOCK PURCHASE AGREEMENT







         THIS STOCK PURCHASE AGREEMENT is made as of February 11, 2010 (the "AGREEMENT"), among TuneIn Media,Inc., a corporation existing under the laws of Delaware (the "PURCHASER"), and Newmarket Technology, Inc., a corporation existing under the laws of Nevada ("SELLER").







W I T N E S S E T H:







         WHEREAS, the Seller owns 100% of the issued and outstanding shares of capital stock (the “Shares”) of Infotel Technologies (PTE) Ltd., a Singapore corporation(“Infotel”); and







         WHEREAS, the Seller desires to sell to Purchaser, and the Purchaser desires to purchase from the Seller, the Shares upon the terms and conditions hereinafter set forth;







         NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter contained, the parties hereby agree as follows:







 


 


 




  





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ARTICLE I SALE AND PURCHASE OF SHARES







1.1      SALE AND PURCHASE OF SHARES.







         Upon the terms and subject to the conditions contained herein, on the Closing Date the Seller shall sell, assign, transfer, convey and deliver to the Purchaser, and the Purchaser shall purchase from the Seller, the Shares. The sale and purchase are intended to be a tax-free reorganization under Section 368(a)(1)(B) of the Internal Revenue Code.







ARTICLE II PURCHASE PRICE AND PAYMENT







2.1      AMOUNT AND PAYMENT OF PURCHASE PRICE.







         On the Closing Date, the Purchaser shall issue the Seller an aggregate of 2,000 shares of the Purchaser’s Series B Convertible Preferred Stock (the "Stock").







2.2      TERMS AND CONDITIONS OF PAYMENT.







This paragraph intentionally left blank.












ARTICLE III CLOSING AND TERMINATION







3.1      CLOSING DATE.







         Subject to the satisfaction of the conditions set forth in Sections 7.1 and 7.2 hereof (or the waiver thereof by the party entitled to waive that condition), the closing of the sale and purchase of the Shares and the Stock provided for in Section 1 and 2 hereof (the "CLOSING") shall take place at the offices of Sichenzia Ross Friedman Ference LLP, 61 Broadway, New York, NY 10006 (or at such other place as the parties may designate in writing) on such date as the Seller and the Purchaser may designate (the “Closing Date”). The Closing may also take place through the delivery of documents in electronic or telefaxed format or through courier delivery of actual signatures to counsel for the parties.







3.2      TERMINATION OF AGREEMENT.







         This Agreement may be terminated prior to the Closing by either (a) mutual written consent of the Seller and the Purchaser or (b) the failure to complete the Closing by February 28, 2010. In the event that this Agreement is validly terminated as provided herein, then each of the parties shall be relieved of their duties and obligations arising under this Agreement after the date of such termination and such termination shall be without liability to the Purchaser or  Seller; PROVIDED, HOWEVER, that nothing in this Section 3.2 shall relieve the Purchaser or Seller of any liability for a breach of this Agreement.







ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE SELLER







         The Seller represents and warrants to the Purchaser that as of the Closing Date:


 


 


 




  





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4.1      ORGANIZATION AND GOOD STANDING OF INFOTEL.







         Infotel is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation as set forth above.







4.2      AUTHORITY.







 (a)      Infotel has full power and authority (corporate and otherwise) to carry on its business and has all permits and licenses that are necessary to the conduct of its business or to the ownership, lease or operation of its properties and assets, except where the failure to have such permits and licenses would not have a material adverse effect on Infotel's business or operations taken as a whole ("MATERIAL ADVERSE EFFECT").







         (b)      The execution of this Agreement and the delivery hereof to the Purchaser and the sale contemplated herein have been, or will be prior to Closing, duly authorized by the Seller's Board of Directors and, if necessary, by the Seller's stockholders having full power and authority to authorize such actions.







         (c)      Neither the execution and delivery of this Agreement, the consummation of the transactions herein contemplated, nor compliance with the terms of this Agreement will violate, conflict with, result in a breach of, or constitute a default under any statute, regulation or other agreement to which Infotel or Seller is a party or by which it or any of them is bound, any charter, regulation, or bylaw provision of Infotel or Seller, or any decree, order, or rule of any court or governmental authority or arbitrator that is binding on Infotel or any Seller in any way, except where such would not have a Material Adverse Effect.







4.3      SHARES.


    




         (a)      Infotel's authorized capital stock consists of $25,000 divided into 25,000 shares of $1.00 each, of which ____ shares are issued and outstanding (constituting the Shares). All of the Shares are duly authorized, validly


                  issued, fully paid and non-assessable.







         (b)      There are no authorized or outstanding subscriptions, options, warrants, calls, contracts, demands, commitments, convertible securities or other agreements or arrangements of any character or nature whatever under which or Infotel is or may become obligated to issue, assign or transfer any shares of capital stock of Infotel. Based upon the representations and warranties of the Seller in this Agreement, upon the delivery to Purchaser on the Closing Date of the certificate(s) representing the Shares, Purchaser will have good, legal, valid, marketable and indefeasible title to 100% of the then issued and outstanding shares of capital stock of Infotel, free and clear of any liens, pledges, encumbrances, charges, agreements, options, claims or other arrangements or  restrictions of any kind, other than those imposed by applicable securities laws.







4.4      BASIC CORPORATE RECORDS.







         The copies of the Memorandum and Articles of Association of Infotel (certified by the Secretary of State or other authorized official of the jurisdiction of incorporation), and the Bylaws of Infotel, all of which have been delivered to the Purchaser, are true, correct and complete as of the date of this Agreement.







         The minute books of Infotel, which shall be exhibited to the Purchaser between the date hereof and the Closing Date, each contain true, correct and materially complete minutes and records of all meetings, proceedings and other actions of the shareholders and Board of Directors of Infotel, except where such would not have a Material Adverse Effect and, on the Closing Date, will, contain true, correct and materially complete minutes and records of any meetings, proceedings and other actions of the shareholders and the Board of Directors of Infotel.







 


 


 




  





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4.5      SUBSIDIARIES AND AFFILIATES.







         Any and all businesses, entities, enterprises and organizations in which Infotel has any ownership, voting or profit and loss sharing percentage interest (the "SUBSIDIARIES") are identified in Schedule 4.5 hereto, together


with Infotel's interest therein.







4.6      CONSENTS.







         No consents or approvals of any public body or authority and no consents or waivers from other parties to leases, licenses, franchises, permits, indentures, agreements or other instruments are (i) required for the lawful  consummation of the transactions contemplated hereby, or (ii) necessary in order that the business currently conducted by Infotel can be conducted by the Purchaser in the same manner after the Closing as heretofore conducted by Infotel, nor will the consummation of the transactions contemplated hereby result in creating, accelerating or increasing any liability of Infotel, except where the failure of any of the foregoing would not have a Material Adverse Effect.







4.7      FINANCIAL STATEMENTS.







         The Seller has delivered, or will deliver prior to Closing, to the Purchaser copies of the financial statements dated 09/30/2009 and the period then ended, all of which are true, complete and correct, have been prepared from the books and records of Infotel. The records and books of Infotel reflect all material assets and liabilities.







         There are no liabilities or obligations of Infotel of any kind whatsoever exceeding $10,000, individually or in the aggregate, whether accrued,fixed, absolute, contingent, determined or determinable, except as identified in  Schedule 4.14.







4.8      TAXES.







         For purposes of this Agreement, "TAX" or "TAXES" refers to any and all federal taxes, assessments and other governmental charges, duties, impositions and liabilities relating to taxes, including taxes based upon or measured by gross receipts, income, profits, sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes and escheatment payments, together with all interest, penalties and additions imposed with respect to such amounts and any obligations under any agreements or arrangements with any other person with respect to such amounts and including any liability for taxes of a predecessor entity.







         Infotel has timely filed all federal returns, estimates, information statements and reports ("TAX Returns") relating to Taxes required to be filed by Infotel with any Tax authority effective through the Closing Date. All such Tax Returns are true, correct and complete in all respects, except for immaterial amounts where such would not have a Material Adverse Effect.







         Infotel has not been delinquent in the payment of any Tax nor is there any Tax deficiency outstanding or assessed against Infotel. Infotel has not executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.












4.9      REAL PROPERTY MATTERS.







         Infotel does not own any real property as of the date hereof and has not owned any real property during the three years preceding the date hereof.







4.10     PATENTS, SOFTWARE, TRADEMARKS, ETC.







         Infotel owns, or possesses adequate licenses or other rights to use, all patents, software, trademarks, service marks, trade names and copyrights and trade secrets, if any, necessary to conduct its Business as now operated by it. The patents, software, trademarks, service marks, copyrights, trade names and trade secrets, if any, registered in the name of or owned or used by or licensed to Infotel and applications for any thereof, other than commercial, off-the-shelf products, (hereinafter the "INTANGIBLES") are described or referenced in SCHEDULE 4.10. Seller hereby specifically acknowledges that all right, title and interest in and to all patents and software listed on SCHEDULE 4.10 as patents owned by Infotel are owned by Infotel or Infotel has a right to use same and that the ownership of such patents and software will be transferred as part of Infotel to Purchaser as part of the transaction contemplated hereby, subject to any filings required by the USPTO. No officer, director, shareholder or employee of Infotel or any relative or spouse of any such person owns any patents or patent applications or any inventions, software, secret formulae or processes, trade secrets or other similar rights, nor is any of them a party to any license agreement, used by or useful to Infotel or related to its business


except as listed in SCHEDULE 4.10.


 


 




  





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         All of said Intangibles are enforceable and are free and clear of all liens, security interests, charges, restrictions and encumbrances of any kind  whatsoever, and have not been licensed to any third party except as described in SCHEDULE 4.10. Infotel has not been charged with, nor has it infringed or is it threatened to be charged with infringement of, any patent, proprietary rights or trade secrets of others in the conduct of its business, and, to the date hereof, neither the Seller nor Infotel has received any notice of conflict with or violation of the asserted rights in intangibles or trade secrets of others. Infotel is not now manufacturing any goods under a present permit, franchise or license. The consummation of the transactions contemplated hereby will not alter or impair any rights of Infotel in any such Intangibles or in any such permit, franchise or license, except as described in SCHEDULE 4.10. The Intangibles are in such form and of such quality and will be maintained in such a manner that Infotel can, following the Closing, design, produce, manufacture, assemble and sell the products and provide the services heretofore provided by it so that such products and services meet applicable specifications and conform with the standards of quality and cost of production standards heretofore met by it. Infotel has the sole and exclusive right to use its corporate and trade names in


the jurisdictions where it transacts business.







4.11     MACHINERY AND EQUIPMENT.







         Except for items disposed of in the ordinary course of business, all machinery, tools, furniture, fixtures, equipment, vehicles, leasehold improvements and all other tangible personal property (hereinafter "FIXED ASSETS") of Infotel currently being used in the conduct of its business (the "BUSINESS"), together with any machinery or equipment that is leased or operated by Infotel, are in fully serviceable working condition and repair. Schedule 4.11 describes all Fixed Assets owned by Infotel. All Fixed Assets owned, used or held by Infotel are situated at its business premises and are currently used in its Business.







4.12     LISTS OF CONTRACTS, ETC.







         There is included in SCHEDULE 4.12 a list of the following items (whether written or oral) relating to Infotel, which list identifies and fairly summarizes each item (collectively, "CONTRACTS"):







         (a)      All joint venture contracts of Infotel or affiliates relating to the Business;







         (b)      All contracts of Infotel relating to (a) obligations for borrowed money and (b) obligations under capital leases, (e) debt of others secured by a lien on any asset of Infotel, and (f) debts of others guaranteed by Infotel;







         (c)      All agreements of Infotel relating to the supply of raw materials for and the distribution of the products of its business, including without limitation all sales agreements, manufacturer's representative agreements and distribution agreements of whatever magnitude and nature, and any commitments therefor;







         (d)      All contracts that individually provide for aggregate future payments to or from Infotel of $25,000 or more, to the extent not included in (a) through (c) above;







         (e)      All contracts of Infotel that have a term exceeding one year and that may not be cancelled without any liability, penalty or premium, to the extent not included in (a) through (d) above;







         (f)      All contracts, agreements and commitments of Infotel set forth in SCHEDULE 4.12 are valid, binding and in full force and effect, and (ii) neither Infotel nor, any other party to any such contract, agreement, or commitment has materially breached any provision thereof or is in default thereunder. Immediately after the Closing, each such contract, agreement or commitment will continue in full force and effect without the imposition or acceleration of any burdensome condition or other obligation on Infotel resulting from the sale of the Shares by the Seller.







4.13     COMPLIANCE WITH THE LAW.







         Infotel is not in violation of any applicable federal, state, local or foreign law, regulation or order or any other, decree or requirement of any governmental, regulatory or administrative agency or authority or court or other tribunal (including, but not limited to, any law, regulation order or requirement relating to securities, properties, business, products, manufacturing processes, advertising, sales or employment practices, terms and conditions of employment, occupational safety, health and welfare, conditions of occupied premises, product safety and liability, civil rights, or environmental protection, including, but not limited to, those related to waste management, air pollution control, waste water treatment or noise abatement), except where such would not have a Material Adverse Effect. Infotel has not been and is not now charged with, or to Infotel's knowledge under investigation with respect to, any violation of any applicable law, regulation, order or requirement relating to any of the foregoing, nor, to Inifotels knowledge after due inquiry, are there any circumstances that would or might give rise to any such violation.


 


Infotel has filed all reports required to be filed with any governmental, regulatory or administrative agency or authority, except where the failure to file such would not have a Material Adverse Effect.


 


 




  





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4.14     LITIGATION.







         Except as specifically identified on the Balance Sheet or footnotes thereto or set forth in SCHEDULE 4.14:







         (a)      There are no legal, administrative, arbitration or other proceedings or governmental investigations pending or, to  Seller's knowledge, threatened, against the Seller or Infotel, relating to its Business or Infotel or its properties (including leased property), or the transactions contemplated by this Agreement, nor is there any basis known to Infotel for  any such action.







         (b)      There are no judgments, decrees or orders of any court, or any governmental department, commission, board, agency or instrumentality binding Infotel relating to its Business or Infotel the effect of which is to prohibit any business practice or the acquisition of any property or the conduct of any business by Infotel or which limit or control or otherwise would have a Material Adverse Affect on its method or manner of doing business.







4.15     ABSENCE OF CERTAIN CHANGES OR EVENTS.







         Infotel has not, since December 31, 2008:







         (a)      Incurred any material obligation or liability (absolute, accrued, contingent or otherwise), except in the ordinary course of its business consistent with past practice or in connection with the performance of this Agreement;







         (b)      Disposed of or permitted to lapse any patents or trademarks or any patent or trademark applications material to the operation of its Business; or







         (c)      Issued any stocks, bonds, or other corporate securities, or  made any declaration or payment of any dividend or any distribution in respect of its capital stock.







4.16     ABSENCE OF CERTAIN COMMERCIAL PRACTICES.







         Infotel has not made any payment (directly or by secret commissions, discounts, compensation or other payments) or given any gifts to another business concern, to an agent or employee of another business concern or of any governmental entity (domestic or foreign) or to a political party or candidate for political office (domestic or foreign), to obtain or retain business for Infotel or to receive favorable or preferential treatment, except for gifts and entertainment given to representatives of customers or potential customers of sufficiently limited value and in a form (other than cash) that would not be construed as a bribe or payoff.


 


4.17     ENVIRONMENTAL MATTERS.







         The operations of Infotel are in compliance with all applicable laws promulgated by any governmental entity which prohibit, regulate or control any hazardous material or any hazardous material activity ("ENVIRONMENTAL LAWS") and all permits issued pursuant to Environmental Laws or otherwise except for where noncompliance or the absence of such permits would not, individually or in the aggregate, have a Material Adverse Effect;







         Infotel has obtained all permits required under all applicable Environmental Laws necessary to operate its business, except for any failures of such which would not have a Material Adverse Effect;







         Infotel is not the subject of any outstanding written order or Contract with any governmental authority or person respecting Environmental Laws or any violation or potential violations thereof; and







         Infotel has not received any written communication alleging either or both that Infotel may be in violation of any Environmental Law, or any permit issued pursuant to Environmental Law, or may have any liability under any Environmental Law.







4.18     INVESTMENT INTENT.







         The Stock is being acquired hereunder by the Seller for investment purposes only, for Seller's own account, not as a nominee or agent and not with a view to the distribution thereof. The Seller has no present intention to sell or otherwise dispose of the Stock and will not do so except in compliance with the provisions of the Securities Act of 1933, as amended, and applicable law. The Seller understands that the Stock which may be acquired hereunder must be held by Seller indefinitely unless a subsequent disposition or transfer of any of said Stock is registered under the Securities Act of 1933, as amended, or is exempt from registration therefrom. The Seller further understands that the exemption from registration afforded by Rule 144 (the provisions of which are known to such Seller) promulgated under the Securities Act of 1933, as amended, depends on the satisfaction of various conditions, and that, if and when applicable, Rule 144 may afford the basis for sales only in limited amounts.


 


 


 




  





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4.19     INVESTMENT EXPERIENCE; SUITABILITY.







         The Seller is a sophisticated investor familiar with the type of risks inherent in the acquisition of securities such as the Stock and the Seller's financial position is such that the Seller can afford to retain the Stock for an indefinite period of time without realizing any direct or indirect cash return on Seller's investment.







4.20     OWNERSHIP







         Seller is the lawful record and beneficial owner of all the Shares, which represent 100% of the issued and outstanding shares of capital stock of Infotel, free and clear of any liens, pledges, encumbrances, charges, claims or restrictions of any kind and has, or will have on the Closing Date, the absolute, unilateral right, power, authority and capacity to enter into and perform this Agreement without any other or further authorization, action or proceeding, except as specified herein.







4.21     OPTIONS AND RIGHTS







         There are no authorized or outstanding subscriptions, options, warrants, calls, contracts, demands, commitments, convertible securities or other agreements or arrangements of any character or nature whatever under which Seller is or may become obligated to assign or transfer any shares of capital stock of Infotel. Upon the delivery to Purchaser on the Closing Date of the certificate(s) representing the Shares, Purchaser will have good, legal, valid, marketable and indefeasible title to all the Shares, free and clear of any liens, pledges, encumbrances, charges, agreements, options, claims or other arrangements or restrictions of any kind, other than those imposed by applicable securities laws.







4.22     ABSENCE OF CERTAIN COMMERCIAL PRACTICES.







         Seller has not made any payment (directly or by secret commissions, discounts, compensation or other payments) or given any gifts to another business concern, to an agent or employee of another business concern or of any governmental entity (domestic or foreign) or to a political party or candidate for political office (domestic or foreign), to obtain or retain business for Infotel or to receive favorable or preferential treatment, except for gifts and entertainment given to representatives of customers or potential customers of sufficiently limited value and in a form (other than cash) that would not be construed as a bribe or payoff.

















              ARTICLE V REPRESENTATIONS AND WARRANTIES OF PURCHASER







         The Purchaser represents and warrants to Seller, as of the Closing Date, that:












5.1      ORGANIZATION AND GOOD STANDING OF THE PURCHASER.







         The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Purchaser has, as of February 4, 2010, 200,000,000 shares of common stock, $0.001 par value, authorized, of which 51,893,522 shares are issued and outstanding; 10,000,000 shares of preferred stock, $0.001 par value, authorized, of which 1,000 shares have been designated Class A Convertible Preferred Stock, $0.001 par value, of which 0 shares are issued and outstanding; and 10,000 shares have been designated Series B Convertible Preferred Stock, $0.001 par value, of which 0 are issued and outstanding.







 

 




  





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5.2      AUTHORITY.







         (a) The execution and delivery of this Agreement and the consummation of the transactions contemplated herein have been, or will prior to Closing be, duly and validly approved and acknowledged by all necessary corporate action on the part of the Purchaser and the Agreement is enforceable in accordance with its terms.







         (b) The execution of this Agreement and the delivery hereof to the Seller and the purchase contemplated herein have been, or will be prior to Closing, duly authorized by the Purchaser's Board of Directors having full power and authority to authorize such actions.







5.3      CONSENTS.







         (a)      The execution and delivery of this Agreement, the acquisition of the Shares by Purchaser and the consummation of the transactions herein contemplated, and the compliance with the provisions and terms of this Agreement, are not prohibited by the Articles of Incorporation or Bylaws of the Purchaser and will not violate, conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any court order, indenture, mortgage, loan agreement, or other agreement or instrument to which the Purchaser is a party or by which it is bound.







         (b)      No consent, waiver, approval, order, permit or authorization of, or declaration or filing with, or notification to, any person or governmental body is required on the part of the Purchaser in connection with the execution and delivery of this Agreement or any other agreement referenced herein or the compliance by Purchaser with any of the provisions hereof or thereof.







5.4      LITIGATION.







         There are no legal proceedings pending or, to the best knowledge of the Purchaser, threatened that are reasonably likely to prohibit or restrain the  ability of the Purchaser to enter into this Agreement or consummate the


transactions contemplated hereby.







5.5      INVESTMENT INTENT AND QUALIFICATION.







         The Purchaser is acquiring the Shares for its own account, for investment purposes only and not with a view to the distribution (as such term is used in Section 2(11) of the Securities Act of 1933, as amended (the


"SECURITIES ACT")) thereof. Purchaser understands that the Shares have not been registered under the Securities Act and cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available. Purchaser has, or as of the Closing Date will have had, access to all information Purchaser has requested and has, or will have, received satisfactory answers to all questions Purchaser has regarding Infotel and the Shares. Purchaser understands that the Shares which may be acquired hereunder must be held by it indefinitely unless a subsequent disposition or transfer of any of those Shares is registered under the Securities Act of 1933, as amended, or is exempt from registration therefrom. Purchaser is a sophisticated investor familiar with the type of risks inherent in the acquisition of securities such as the Shares and Purchaser can bear the full risk, including the entire loss, of the investment.







5.6      DUE AUTHORIZATION OF STOCK.







         The Stock, when delivered to the Seller, shall be validly issued and outstanding as fully paid and non-assessable, free and clear of any liens, pledges, encumbrances, charges, agreements, options, claims or other arrangements or restrictions of any kind.












                              ARTICLE VI COVENANTS







6.1      ACCESS TO INFORMATION.







         Seller agrees that, prior to the Closing Date, the Purchaser shall be entitled, through its officers, employees and representatives (including, without limitation, its legal advisors and accountants), to make such


investigation of the properties, businesses and operations of Infotel and such examination of the books, records and financial condition of Infotel and its Subsidiaries as it reasonably requests and to make extracts and copies of such books and records.







         Purchaser agrees that, prior to the Closing Date, Seller shall be entitled, through its officers, employees and representatives (including, without limitation, its legal advisors and accountants), to make such investigation of the properties, businesses and operations of the Purchaser and such examination of the books, records and financial condition of the Purchaser as it reasonably requests and to make extracts and copies of such books and records.







         No investigation prior to or after the date of this Agreement shall diminish or obviate any of the representations, warranties, covenants or agreements contained in this Agreement or any other agreement referenced herein.












 

 




  





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6.2      CONDUCT OF THE BUSINESS PENDING THE CLOSING.







         (a)      Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the Purchaser, prior to the Closing the Seller shall, and shall cause Infotel to:







                  (i)      Conduct the business of Infotel only in the ordinary course consistent with past practice;







                  (ii)     Use its best efforts to (A) preserve its present business operations, organization (including, without limitation, management and the sales force) and goodwill of Infotel and (B) preserve its present  relationship with parties having business dealings with Infotel; and







                  (iii)    Comply in all material respects with applicable laws.







         (b)      Except as otherwise expressly contemplated by this Agreement  or with the prior written consent of the Purchaser, prior to the Closing the Seller shall not, and shall cause Infotel not  to:







                  (i)      Transfer, issue, sell or dispose of any shares of capital stock or other securities of Infotel or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or  other securities of Infotel;







                  (ii)     Amend the Certificate of Incorporation or Bylaws of Infotel;







                  (iii)    Subject to any lien (except for leases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the properties or assets (whether tangible or intangible) of Infotel;







                  (iv)     Acquire any material properties or assets or sell,  assign, transfer, convey, lease or otherwise dispose of any of the material properties or assets (except for fair consideration in the ordinary course of business consistent with past practice) of Infotel;







                  (v)      Enter into any commitment for capital expenditures out of the ordinary course;







                  (vi)     Permit Infotel to enter into any transaction or to  make or enter into any Contract which by reason of  its size or otherwise is not in the ordinary course of business consistent with past practice;







                  (vii)    Permit Infotel to enter into or agree to enter into any merger or consolidation with any corporation or  other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to or otherwise acquire the securities of any other party;


 


                  (viii)   Agree to do anything prohibited by this Section 6.2 or anything which would make any of the representations and warranties of the Seller in this Agreement or any other agreement referenced herein


                           untrue or incorrect in any material respect as of any time through and including the Closing.







6.3      OTHER ACTIONS.







         Each of the Seller and the Purchaser shall use its best efforts to (i) take all actions necessary or appropriate to consummate the transactions contemplated by this Agreement, and (ii) cause the fulfillment at the earliest practicable date of all of the conditions to their respective obligations to consummate the transactions contemplated by this Agreement.


 


 


 




  





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6.4      USE OF NAME.







         The Seller hereby agrees that upon the consummation of the transactions contemplated hereby, the Purchaser and Infotel shall have the sole right to the use of the name "Infotel Technologies PTE Ltd." and the Seller shall not, and shall not cause or permit any affiliate to, use such name or any variation or simulation thereof.







6.5      TAX MATTERS.







         (a) Tax Periods Ending on or Before the Closing Date.







         The Seller shall prepare or cause to be prepared and file or cause to be filed all Tax Returns for Infotel for all periods ending on or prior to the Closing Date which are filed after the Closing Date as soon as practicable and prior to the date due (including any proper extensions thereof).







         (b) Tax Periods Beginning Before and Ending After the Closing Date.







         The Purchaser shall prepare or cause to be prepared and file or cause to be filed any Tax Returns of Infotel for Tax periods that begin before the Closing Date and end after the Closing Date.







6.6      SECURITIES LAW FILINGS







         Purchaser shall make, in a timely manner, any filings under applicable federal and state securities laws necessary in order to assure that exemptions from registration are available for the transactions hereunder.












ARTICLE VII CONDITIONS TO CLOSING







7.1      CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER.







         The obligation of the Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by the Purchaser in whole or in part to the extent permitted by applicable law):







         (a)      all representations and warranties of the Seller contained herein shall be true and correct as of the date hereof;







         (b)      the Seller shall have performed and complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by them on or prior to the Closing Date;







         (c)      the Seller shall have obtained all consents and waivers with respect to the transactions contemplated by this Agreement;







         (d)      no legal proceedings shall have been instituted or threatened or claim or demand made against the Seller, Infotel, or the Purchaser seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby, and there shall not be in effect any order by a governmental body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;







         (e)      the Purchaser shall have received the written resignations of each director of Infotel.







Infotel may provide the Purchaser with information required by Article IV of this Agreement within thirty days after the Closing Date. The Purchaser shall consummate the transaction on the Closing Date without receiving that


information.







7.2      CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER.







         The obligations of the Seller to consummate the transactions contemplated by this Agreement are subject to the fulfillment, prior to or on the Closing Date, of each of the following conditions (any or all of which may be waived by the Seller in whole or in part to the extent permitted by applicable law):







         (a)      all representations and warranties of the Purchaser contained herein shall be true and correct as of the date hereof;







         (b)      the Purchaser shall have performed and complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Purchaser on or prior to the Closing Date; and







         (c)      no legal proceedings shall have been instituted or threatened or claim or demand made against the Seller, Infotel, or the Purchaser seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the  transactions contemplated hereby, and there shall not be in effect any order by a governmental body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby.














  





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                     ARTICLE VIII DOCUMENTS TO BE DELIVERED







8.1      DOCUMENTS TO BE DELIVERED BY THE SELLER.







         At or prior to the Closing, the Seller shall deliver, or cause to be delivered, to the Purchaser the following:







         (a)      stock certificates representing the Shares referred to in  Section 1.1 hereof, duly endorsed in blank or accompanied by stock transfer powers and with all requisite stock transfer tax stamps attached;







         (b)      certificate of good standing with respect to Infotel issued by the Secretary of State of the jurisdiction of incorporation, and for each state, if any, in which Infotel is qualified to do business as a foreign corporation, or other evidence of good standing reasonably acceptable to the Purchaser; and







         (c)      such other documents as the Purchaser shall reasonably request.







8.2      DOCUMENTS TO BE DELIVERED BY THE PURCHASER.







         At or prior to the Closing, the Purchaser shall deliver to the Seller the following:







         (a) The Stock to be delivered pursuant to 2.1 are delivered to the Seller; and







         (b) such other documents as the Seller shall reasonably request.












                           ARTICLE IX INDEMNIFICATION







9.1      INDEMNIFICATION. Seller hereby agrees to indemnify and hold the Purchaser harmless from and against any losses, liabilities, obligations, damages, costs and expenses based upon, attributable to or resulting from the failure of any representation or warranty of that Seller set forth in Section 4 hereof to be true and correct in all respects as of the date made.







                             ARTICLE X MISCELLANEOUS







10.1     SURVIVAL OF REPRESENTATIONS AND WARRANTIES.







         The parties hereto hereby agree that the representations and warranties contained in this Agreement or in any certificate, document or instrument delivered in connection herewith, shall survive the execution and delivery of this Agreement, and the Closing hereunder, regardless of any investigation made by the parties hereto, and continue in full force and effect for a period of one year.







10.2     EXPENSES.







         Except as otherwise provided in this Agreement, the Seller and the Purchaser shall each bear its own expenses incurred in connection with the negotiation and execution of this Agreement and each other agreement document and instrument contemplated by this Agreement and the consummation of the transactions contemplated hereby and thereby.







         All sales, use, transfer, intangible, recordation, documentary stamp or similar Taxes or charges, of any nature whatsoever, applicable to, or resulting from, the transactions contemplated by this Agreement shall be borne by the Seller.







10.3     FURTHER ASSURANCES.







         The Seller and the Purchaser each agrees to execute and deliver such other documents or agreements and to take such other action as may be reasonably necessary or desirable for the implementation of this Agreement and the consummation of the transactions contemplated hereby.


 


 




  





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10.4     GOVERNING LAW; SUBMISSION TO JURISDICTION.







         This Agreement shall be governed by and construed in accordance with the laws of the United States of America and the State of Kentucky, both substantive and remedial, without regard to Kentucky conflicts of law


principles. Any judicial proceeding brought against either of the parties to this Agreement or any dispute arising out of this Agreement or any matter related hereto shall be brought in the courts of the State of Kentucky, or in the United States District Court for the District of Kentucky and, by its execution and delivery of this Agreement, each party to this Agreement accepts the jurisdiction of such courts. The foregoing consent to jurisdiction shall not be deemed to confer rights on any person other than the parties to this Agreement







10.5     ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS.







         This Agreement represents the entire understanding and agreement


between the parties hereto with respect to the subject matter hereof and can be amended, supplemented or changed, and any provision hereof can be waived, only by written instrument making specific reference to this Agreement signed by the party against whom enforcement of any such amendment, supplement, modification or waiver is sought. No action taken pursuant to this Agreement, including without limitation, any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representation, warranty, covenant or agreement contained herein. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by law.







10.6     COUNTERPARTS.







         This Agreement may be executed in any number of counterparts, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile signature page were an original thereof.







10.7     NOTICES.







         All notices and other communications under this Agreement shall be in writing and shall be deemed given when delivered personally, mailed by certified mail, return receipt requested, or via recognized overnight courier service with all charges prepaid or billed to the account of the sender to the parties (and shall also be transmitted by facsimile to the parties receiving copies thereof) at the following addresses (or to such other address as a party may have specified by notice given to the other party pursuant to this provision):












         (a) Purchaser:







                    TuneIn Media, Inc.


                    2520 South Third Street #206


                    Louisville, KY 40208


                    Phone: 502-636-2807


                    Facsimile: 502-636-2806


 


 


 


 




  





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                    Copy to:







                    Andrea Cataneo, Esq.


                    Sichenzia Ross Friedman Ference LLP


                    61 Broadway


                    New York, New York 10006


                    Telephone:  (212) 930-9700


                    Facsimile: (212) 930-9725







         (b) Seller:







                    NewMarket Technology, Inc.


                    14860 Montfort Drive


                    Suite 210


                    Dallas, Texas 75254


                    Telephone: (972) 386-3372


                    Facsimile:  (972) 386-8165







10.8     BINDING EFFECT; ASSIGNMENT; SEVERABILITY







         This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity not a party to this Agreement except as provided below. No assignment of this Agreement or of any rights or obligations hereunder may be made by either the Seller or the Purchaser (by operation of law or otherwise) without the prior written consent of the other parties hereto and any attempted assignment without the required consents shall be void.







         If any provision of this Agreement is invalid or unenforceable, the balance of this Agreement shall remain in effect.

















                              [INTENTIONALLY BLANK]





































































  





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         IN WITNESS WHEREOF, the parties hereto have executed or caused to be duly executed this Stock Purchase Agreement as of the date first set forth


above.












                                             TuneIn Media, INC.












                                             By: /s/ James Tilton


                                                 ----------------------------


                                              Name: James Tilton


                                              Title: Chief Executive Officer







                                             NewMarket Technology, INC.












                                             By: /s/ Bruce Noller


                                                 ----------------------------


                                              Name: Bruce Noller







                                              Title: Chief Executive Officer












 

 



















  





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SCHEDULE 4.5







SCHEDULE 4.5 LIST OF SUBSIDIARIES AND AFFILIATES







None







































  





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SCHEDULE 4.10







SCHEDULE 4.10: INTELLECTUAL PROPERTY







None.












                                 


 




  





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SCHEDULE 4.11


 


INFOTEL, INC. PROPERTY AND EQUIPMENT DETAIL












THE TOTAL ASSETS OF INFOTEL ARE IN EXCESS OF $450,000.00 BUT HAVE NOT BEEN DETAILED IN THIS SCHEDULE AT THE INSISTENCE OF OUR CUSTOMERS AND IN AGREEMENT WITH THE PURCHASER.



















  





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SCHEDULE 4.12







ARTICLE XI SCHEDULE 4.12: CONTRACTS



















  





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 SCHEDULE 4.14












ACCRUED LIABILITIES LEDGER







This accrued liability ledger documents Infotel, Inc. liabilities in excess of $10,000:







There is no current litigation involving Infotel, Inc.









 


 


 


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