Exhibit 4.1





Exhibit 4.1




IMMEDIATEK, INC.




Amended and Restated Certificate of Designation, Rights and Preferences of

Series A Convertible Preferred Stock

of

IMMEDIATEK, INC.




Immediatek, Inc. (the “Corporation”), a corporation organized and existing under the law of
the State of Nevada (the “NRS”), hereby certifies that (i) the approval of the stockholders
required pursuant to the provisions of NRS 78.1955(3) has been obtained and (ii) pursuant to the
authority conferred upon the board of directors of the Corporation (the “Board of Directors”) by
its Amended and Restated Articles of Incorporation, as amended (the “Restated Articles”), which
authorizes the issuance, by the Corporation, in one or more series of up to 5,000,000 shares of
preferred stock, par value $0.001 per share (the “Preferred Stock”), and in accordance with the
provisions of NRS 78.1955, the Board of Directors at a meeting duly called and held on September
30, 2009 duly adopted the following resolutions:



RESOLVED, that, pursuant to the authority vested in the Board of Directors by the provisions
of Article V of the Restated Articles and in accordance with the provisions of NRS 78.1955, the
Board of Directors hereby amends and restates the Certificate of Designation, Rights and
Preferences of the series of Preferred Stock consisting of 4,392,286 shares herein designated as
the Series A Convertible Preferred Stock (the “Series A Preferred Stock”), having the powers,
designations, preferences and relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the shares of such series (in addition to
the powers, designations preferences and relative, participating, optional or other special rights,
and the qualifications, limitations or restrictions thereof, set forth in the Restated Articles
that are applicable to the Preferred Stock of all series) are hereby fixed as follows (certain
terms used herein being defined in Section B.3. hereof):



A. PROVISIONS RELATING TO THE SERIES A PREFERRED STOCK




1. Dividends. The holders of the Series A Preferred Stock shall not be entitled to
any preferential dividends. The holders of the Series A Preferred Stock shall be entitled to
participate on an as-converted basis in cash any dividends declared and paid on the Common Stock.




2. Liquidation.



(a) Upon any Liquidation Event, the holders of shares of Series A Preferred Stock then
outstanding shall be entitled to receive, out of the funds and assets of the Corporation legally
available therefor (the “Available Assets and Funds”), before any payment shall be made to the
holders of shares of Junior Stock, an amount per share equal to the greater of (i) the Stated Value
for a share of Series A Preferred Stock and (ii) the amount such holder would have received had
such holder converted such share of Series A Preferred Stock into shares of Common Stock
immediately prior to such Liquidation Event. If, upon any such Liquidation Event, the Available
Assets and Funds shall be insufficient to pay the holders of shares of Series A Preferred Stock the
full amount to which they shall be entitled, the holders of shares of Series
A Preferred Stock and any Parity Stock shall share ratably in any distribution of the
Available Assets and Funds in proportion to the respective amounts that would otherwise be payable
in respect of the shares held by them upon such distribution if all amounts payable on or with
respect to such shares were paid in full.


 


 









 





3. Ranking. The Series A Preferred Stock shall, with respect to redemption rights,
rights on liquidation, winding up, corporate reorganization and dissolution rank senior to the
Junior Stock.




4. Conversion.



(a) Right to Convert. Subject to and in compliance with this Section A.4.,
each share of Series A Preferred Stock shall be convertible, at the option of the holder thereof,
at any time and from time to time, into that number of fully paid and nonassessable shares of
Common Stock as is determined by dividing the Stated Value for such share by the Conversion Price
(defined below) for such share in effect at the time of conversion. The “Conversion Price” shall
initially be $0.205990138168212 per share. Such initial Conversion Price shall be subject to
adjustment from time to time as provided in this Section A.4.



(b) Mechanics of Conversion. Each holder of Series A Preferred Stock who desires to
convert the same into shares of Common Stock shall surrender the certificate or certificates
therefor, duly endorsed, at the office of the Corporation or of any transfer agent for the Series A
Preferred Stock or Common Stock, and shall give written notice to the Corporation at such office
that such holder elects to convert the same and shall state therein the number of shares of Series
A Preferred Stock being converted. Thereupon, the Corporation shall promptly issue and deliver at
such office to such holder a certificate or certificates for the number of shares of Common Stock
to which such holder is entitled. Such conversion shall be deemed to have been made immediately
prior to the close of business on the date of such surrender of the certificate representing the
shares of Series A Preferred Stock to be converted, and the person entitled to receive the shares
of Common Stock issuable upon such conversion shall be treated for all purposes as the record
holder of such shares of Common Stock on such date.



(c) Adjustments for Stock Splits and Combinations. If the Corporation at any time or
from time to time after the Original Issue Date (as defined below) effects a subdivision of the
outstanding Common Stock, the Conversion Price then in effect immediately before the subdivision
shall be proportionately decreased, and conversely, if the Corporation at any time or from time to
time after the Original Issue Date combines the outstanding shares of Common Stock into a smaller
number of shares, the Conversion Price then in effect immediately before the combination shall be
proportionately increased. Any adjustment under this subsection A.4.(c) shall become
effective at the close of business on the date the subdivision or combination becomes effective.
“Original Issue Date” means the date on which shares of Series A Preferred Stock are originally
issued under this Certificate of Designation.


 


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(d) Adjustments for Certain Dividends and Distributions. If the Corporation at any
time or from time to time after the Original Issue Date makes or issues, or fixes a record date for
the determination of holders of Common Stock entitled to receive, a dividend or other distribution
payable in additional shares of Common Stock, then and in each such event the
Conversion Price then in effect shall be adjusted as of the time of such issuance or, in the
event such record date is fixed, as of the close of business on such record date, so that it will
equal the price determined by multiplying the Conversion Price then in effect by a fraction (1) the
numerator of which is the total number of shares of Common Stock issued and outstanding immediately
prior to the time of such issuance or the close of business on such record date and (2) the
denominator of which shall be the total number of shares of Common Stock issued and outstanding
immediately prior to the time of such issuance or the close of business on such record date plus
the number of shares of Common Stock issuable in payment of such dividend or distribution;
provided, however, that if such record date is fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the Conversion Price shall be recomputed
accordingly as of the close of business on such record date and thereafter the Conversion Price
shall be adjusted pursuant to this subsection A.4.(d) as of the time of actual payment of
such dividends or distributions.



(e) Adjustments for Dividends and Other Distributions. In the event the Corporation
at any time or from time to time after the Original Issue Date makes or issues, or fixes a record
date for the determination of holders of Common Stock entitled to receive, a dividend or other
distribution payable in securities of the Corporation other than shares of Common Stock, then and
in each such event provision shall be made so that the holders of Series A Preferred Stock shall
receive upon conversion thereof, in addition to the number of shares of Common Stock receivable
thereupon, the amount of securities of the Corporation which they would have received had their
Series A Preferred Stock been converted into Common Stock on the date of such event and had they
thereafter, during the period from the date of such event to and including the conversion date,
retained such securities receivable by them as aforesaid during such period, subject to all other
adjustments called for during such period under this Section A.4 with respect to the rights
of the holders of the Series A Preferred Stock.



(f) Adjustment for Reclassification, Exchange and Substitution. In the event that, at
any time or from time to time after the Original Issue Date, the Common Stock issuable upon the
conversion of the Series A Preferred Stock is changed into the same or a different number of shares
of any class or classes of stock, whether by recapitalization, reclassification or otherwise (other
than a subdivision or combination of shares or stock dividend or a reorganization, merger,
consolidation or sale of assets, provided for elsewhere in this Section A.4), then and in
any such event each holder of Series A Preferred Stock shall have the right thereafter to convert
such Series A Preferred Stock into the kind and amount of stock and other securities and property
receivable upon such recapitalization, reclassification or other change, by holders of shares of
Common Stock into which such shares of Series A Preferred Stock could have been converted
immediately prior to such recapitalization, reclassification or change, all subject to further
adjustment as provided herein.



(g) No Adjustment for Certain Issuances. Notwithstanding anything to the contrary
herein, no adjustment will be made to the Conversion Price (1) for issuances of Common Stock upon
conversion of shares of the Series A Preferred Stock; or (2) for issuances of Common Stock,
options, warrants or other convertible securities as a dividend or distribution on the Series A
Preferred Stock.


 


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(h) Notices of Record Date. In the event of (a) any taking by the Corporation of
record of the holders of any class of securities for the purpose of determining the holders
thereof who are entitled to receive any dividend or other distribution, or (b) any capital
reorganization of the Corporation, any reclassification or recapitalization of the capital stock of
the Corporation, any merger or consolidation of the Corporation with or into any other corporation,
or any transfer of all or substantially all of the assets of the Corporation to any other Person or
any voluntary or involuntary dissolution, liquidation or winding up of the Corporation, the
Corporation shall mail to each holder of Series A Preferred Stock at least thirty (30) days prior
to the record date specified therein, a notice specifying (1) the date on which any such record is
to be taken for the purpose of such dividend or distribution and a description of such dividend or
distribution, (2) the date on which any such reorganization, reclassification, transfer,
consolidation, merger, dissolution, liquidation or winding up is expected to become effective, and
(3) the date, if any, that is to be fixed, as to when the holders of record of Common Stock (or
other securities) shall be entitled to exchange their shares of Common Stock (or other securities)
for securities or other property deliverable upon such reorganization, reclassification, transfer,
consolidation, merger, dissolution, liquidation or winding up.



(i) Fractional Shares. No fractional shares of Common Stock shall be issued upon
conversion of Series A Preferred Stock. If more than one share of Series A Preferred Stock shall
be surrendered for conversion at any one time by the same holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate
number of shares of Series A Preferred Stock so surrendered. In lieu of any fractional share to
which the holder would otherwise be entitled, the Corporation shall pay cash equal to the product
of such fraction multiplied by the Fair Market Value of one share of the Corporation’s Common Stock
on the date of conversion.



(j) Reservation of Stock Issuable Upon Conversion. The Corporation shall at all times
reserve and keep available out of its authorized but unissued shares of Common Stock, solely for
the purpose of effecting the conversion of the shares of the Series A Preferred Stock, such number
of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of
all outstanding shares of the Series A Preferred Stock; and if at any time the number of authorized
but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then
outstanding shares of the Series A Preferred Stock, the Corporation will take such corporate action
as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares
of Common Stock to such number of shares as shall be sufficient for such purpose.



(k) Notices. All notices and other communications required by the provisions of this
Section A.4 shall be in writing and shall be deemed to have been duly given if delivered
personally, mailed by certified mail (return receipt requested) or sent by overnight delivery
service, cable, telegram, facsimile transmission or telex to each holder of record at the address
of such holder appearing on the books of the Corporation. Notice so given shall, in the case of
notice so given by mail, be deemed to be given and received on the fourth calendar day after
posting, in the case of overnight delivery service, on the date of actual delivery and, in the case
of notice so given by cable, telegram, facsimile transmission, telex or personal delivery, on the
date of actual transmission or, as the case may be, personal delivery.


 


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(l) Payment of Taxes. The Corporation will pay all taxes (other than taxes based upon
income) and other governmental charges that may be imposed with respect to the
issue or delivery of shares of Common Stock upon conversion of shares of Series A Preferred
Stock, including, without limitation, any tax or other charge imposed in connection with any
transfer involved in the issue and delivery of shares of Common Stock in a name other than that in
which the shares of Series A Preferred Stock so converted were registered.



(m) No Dilution or Impairment. The Corporation shall not amend its Amended and
Restated Articles of Incorporation or participate in any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, for
the purpose of avoiding, or seeking to avoid, the observance or performance of any of the terms to
be observed or performed hereunder by the Corporation, but will at all times in good faith assist
in carrying out all such action as may be reasonably necessary or appropriate in order to protect
the conversion rights of the holders of the Series A Preferred Stock against dilution or other
impairment.



5. Voting. The holders of shares of Series A Preferred Stock shall be entitled to
vote on all matters required or permitted to be voted upon by the stockholders of the Corporation
and, except to the extent specifically provided herein, each holder shall be entitled to the number
of votes equal to the largest number of full shares of Common Stock into which all shares of Series
A Preferred Stock held by such holder could be converted, pursuant to the provisions of Section
A.4, at the record date for the determination of the stockholders entitled to vote on such
matters or, if no record date is established, at the date such vote is taken or any written consent
of stockholders is first executed. Except as otherwise expressly provided herein or as required by
law, the holders of Series A Preferred Stock shall vote together as a single class with the holders
of Common Stock on all matters.


 


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B. GENERAL PROVISIONS




1. Protective Provisions. In addition to any other vote or consent required herein or
by law, unless the directors designated by the holders of the shares of the Series A Preferred
Stock originally issued under the Purchase Agreement (as defined herein) control the Board of
Directors of the Corporation with respect to all actions, for so long as any shares of the Series A
Preferred Stock originally issued under the Purchase Agreement remain outstanding (subject to
equitable adjustments for stock splits, stock dividends and the like with respect to the Series A
Preferred Stock), except where the vote or written consent of the holders of a greater number of
shares of the Corporation is required by law or by the Amended and Restated Articles of
Incorporation, and in addition to any other vote required by law or by the Amended and Restated
Articles of Incorporation, the Corporation shall not, and the Corporation 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 Preferred Stock originally issued under the Purchase
Agreement then outstanding:



(a) 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 Preferred Stock or the shares issuable upon
conversion of the Series A Preferred Stock;



(b) reclassify any outstanding securities into securities having rights, preferences or
privileges senior to, or on a parity with, the Series A Preferred Stock;



(c) authorize or issue any additional shares of capital stock (other than to holders of the
Series A Preferred Stock);




(d) merge or consolidate with or into any corporation or other Person;



(e) sell all or substantially all their respective assets in a single transaction or series of
related transactions;



(f) license all or substantially all of their respective intellectual property in a single
transaction or series of related transactions;




(g) liquidate or dissolve;



(h) alter any rights of the holders of the Series A Preferred Stock or change the size of the
Board of Directors;



(i) declare or pay any dividends (other than dividends payable to the Corporation 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;



(j) repurchase any outstanding shares of capital stock (other than repurchases or redemptions
of the Series A Preferred Stock in accordance with the terms hereof);


 


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(k) 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;



(l) 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 Preferred Stock originally issued under the Purchase
Agreement then outstanding;




(m) retain, terminate or enter into any salary or employment negotiations or employment
agreement with any employee or any future employee;




(n) incur indebtedness (other than trade payables) or enter into contracts or leases that
require payments in excess of $5,000 in the aggregate;





(o) make or incur any single capital expenditure;




(p) award stock options, stock appreciation rights or similar employee benefits or determine
vesting schedules, exercise prices or similar features;




(q) make any material change in the nature of its business or enter into any new line of
business, joint venture or similar arrangement;




(r) pledge its assets or guarantee the obligations of any other individual or entity;



(s) recommend approval of any new equity incentive plan;





(t) form or acquire any subsidiary, joint venture or similar business entity; or



(u) directly or indirectly enter into, or permit to exist, any material transaction with any
affiliate of the Corporation, any director or officer or any affiliate of a director or officer, or
transfer, pay, loan or otherwise obligate the Corporation 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 after the date hereof, except for employee compensation or for
reimbursement of ordinary business expenses.



2. Board of Directors. For so long as any shares of the Series A Preferred Stock
originally issued under the Purchase Agreement remain outstanding, the holders of a
Majority-in-Interest of the shares of the Series A 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 Corporation and its subsidiaries. If the holders of the
shares of the Series A 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 Preferred Stock originally issued under the Purchase Agreement then
outstanding may appoint a designee to serve as an observer at all meetings of the Corporation’s or
its subsidiaries’ Board of



 


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Directors and committees thereof, and such designee will be (a) entitled
to all notices of meetings of the Board of Directors and committees thereof and all instruments in which action
is proposed to be taken by written consent in lieu of a meeting, each as and when provided to the
directors, and (b) furnished with the materials furnished to the directors for such meetings or
written consents in lieu of a meeting. Notwithstanding anything herein to the contrary, for so
long as the Radical Holdings LP or its affiliates owns any of the shares of the Series A Preferred
Stock then issued and outstanding, the directors or any committee of directors of the Corporation
or its subsidiaries shall not hold a meeting or take any action by written consent, unless written
notice thereof, which contains a reasonable description of the matters to be acted upon, is sent to
the holders of the Series A Preferred Stock at least ten calendar days in advance of the action
proposed to be taken.



3. Definitions. As used herein with respect to the Series A Preferred Stock, the
following terms have the following meanings:



“Common Stock” means the common stock of the Corporation, $0.001 par value per share.



“Fair Market Value” means (i) if the Common Stock is listed on a national securities exchange, the
closing sale price per share on the principal exchange on which the Common Stock is listed as
reported by such exchange, (ii) if the Common Stock is quoted in the National Market System, the
closing sale price per share as reported by Nasdaq, (iii) if the Common Stock is traded in the
over-the-counter market but not quoted in the National Market System, the average of the closing
bid and asked quotations per share as reported by Nasdaq, or any other nationally accepted
reporting medium if Nasdaq quotations shall be unavailable, or (iv) if none of the foregoing
applies, the fair market value of such stock as reasonably determined in good faith by the Board of
Directors of the Corporation.



“Junior Stock” means shares of Common Stock and any other class or series of capital stock of the
Corporation that by its express terms provides that is ranks junior to the Series A Preferred Stock
as to distribution of assets on liquidation, dissolution or winding up.



“Liquidation Event” means the liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, and also includes (i) the acquisition of the Corporation by another
entity by means of any transaction or series of related transactions (including, without
limitation, any reorganization, merger or consolidation) that results in the sale, disposition or
other transfer of more than fifty percent (50%) of the outstanding voting power of the Corporation
or (ii) a sale, exclusive license or other disposition of all or substantially all of the assets of
the Corporation.


 


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“Majority-in-Interest” means the holders of a majority of the Series A Preferred Stock.



“Parity Stock” means any class or series of capital stock of the Corporation ranking on a parity
with the Series A Preferred Stock as to distribution of assets on liquidation, dissolution or
winding up.



“Person” means any individual, corporation, partnership, trust, joint venture, organization,
association, government or agency or political subdivision thereof, or any other entity.



“Purchase Agreement” means that certain Securities Purchase Agreement, dated as of January 24,
2006, by and among the Corporation, Radical Holdings LP and the other parties thereto, as amended
by that certain First Amendment to Securities Purchase Agreement, dated as of March 3, 2006.



“Stated Value” means a stated value per share equal to $0.683015632 with respect to the Series A
Preferred Stock.



SIGNATURE PAGE FOLLOWS



 


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IN WITNESS WHEREOF, Immediatek, Inc. has caused this Amended and Restated Certificate of
Designation, Rights and Preferences of Series A Convertible Preferred Stock to be signed by its
President, on this 13th day of October 2009, and such person hereby affirms under penalty of
perjury that this Certificate of Designation, Rights and Preferences of Series A Convertible
Preferred Stock is the act and deed of Immediatek, Inc. and that the facts stated herein are true
and correct.



	 	 	 	 	 
	 	IMMEDIATEK, INC.

 	 
	 	By:  	/s/ DARIN DIVINIA
 	 
	 	 	Name:  	Darin Divinia 	 
	 	 	Title:  	President