Filed by Bowne Pure Compliance




Exhibit
10.1



	 	 	 
	

	 	ROSS MILLER

Secretary of State

204 North Carson Street, Ste 1

Carson City, Nevada 89701-4299

(775) 684 5708

Website: www.nvsos.gov






Certificate of Designation

(PURSUANT TO NRS 78.1955)




			
	 	 	 
	USE BLACK INK ONLY — DO NOT HIGHLIGHT
	 	ABOVE SPACE IS FOR OFFICE USE ONLY
	 	 	 






Certificate of Designation For

Nevada Profit Corporations 

(Pursuant to NRS 78.1955)




1. Name of corporation:



Immediatek, Inc.



2. By resolution of the board of directors pursuant to a provision in the articles of incorporation
this certificate establishes the following regarding the voting powers, designations, preferences,
limitations, restrictions and relative rights of the following class or series of stock.



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 creates and provides for the issue of a series of Preferred Stock consisting of
69,726 shares herein designated as the “Series B Convertible Preferred Stock” (the “Series B
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.1. hereof):



Continuation attached.



3. Effective date of filing: (optional)



(must not be later than 90 days after the certificate is filed)




4. Signature: (required)






Signature of Officer




Filing Fee: $175.00



IMPORTANT: Failure to include any of the above information and submit with the proper fees may
cause this filing to be rejected.




			
	 	 	 
	This form must be accompanied by appropriate fees.
	 	Nevada Secretary of State Stock Designation
	 
	 	Revised: 7-1-08
	 	 	 





 


 









 





A. PROVISIONS RELATING TO THE SERIES B PREFERRED STOCK




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




2. Liquidation.



(a) Upon any Liquidation Event, the holders of shares of Series B Preferred Stock then
outstanding, pari passu with holders of the Series A Convertible Preferred Stock (the “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 B Preferred Stock or (ii) the amount such holder would
have received had such holder converted such share of Series B 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 B Preferred
Stock and the Series A Preferred Stock the full amount to which they shall be entitled, the holders
of shares of Series B Preferred Stock and Series A Preferred Stock and any other 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 B Preferred Stock shall, with respect to redemption rights,
rights on liquidation, winding up, corporate reorganization and dissolution, rank pari passu with
Series A Preferred Stock and senior to the Junior Stock.




4. Optional Redemption.



(a) Holders’ Redemption Rights. Upon an Event of Default, the holders of a
Majority-in-Interest of the Series B Preferred Stock then outstanding may require the Corporation
to redeem the Series B Preferred Stock at any time or from time to time, in whole but not in part,
at a redemption price per share equal to the Stated Value, plus declared and unpaid dividends, if
any, to the Redemption Date (the “Redemption Price”). Such redemption shall be effected in
accordance with the procedures set forth in subsections A.4.(b) and A.4.(c) hereof.



(b) Notice. Upon an Event of Default, the Corporation shall mail notice of such Event
of Default within ten (10) days of such Event of Default to the holders of record of the Series B
Preferred Stock. Within a twenty-day period following such notice by the Company to the holders of
the Series B Preferred Stock, each record holder of the Series B Preferred Stock shall be entitled
to provide notice to the Corporation of his election to require the Company to redeem the
outstanding shares of Series B Preferred Stock. In the event that the holders of a
Majority-in-Interest of the Series B Preferred Stock then outstanding elect to require the
Corporation to redeem shares of the Series B Preferred Stock pursuant to this subsection
A.4., the Corporation shall mail notice of such redemption by first-class mail, postage
prepaid, and mailed not less than ten (10) days nor more than sixty (60) days after the date the
holders of a Majority-in-Interest of the Series B Preferred Stock elected to cause the redemption
of



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the Series B Preferred Stock (each such date, a “Redemption Date”) to the holders of record of the shares of
Series B Preferred Stock to be redeemed, at their respective addresses as such addresses shall
appear in the records of the Corporation; provided, however, that failure to give such notice or
any defect therein or in the mailing thereof shall not affect the validity of the proceeding for
the redemption of any shares so to be redeemed. Each such notice shall state: (i) the Redemption
Date, (ii) the number of shares of Series B Preferred Stock to be redeemed, (iii) the Redemption
Price, and (iv) the place or places where certificates for such shares are to be surrendered for
payment of the Redemption Price.




(c) Right of the Holders of Series B Preferred Stock upon Redemption. Following
the Redemption Date, said shares of Series B Preferred Stock to be redeemed shall no longer be
deemed to be outstanding and shall not have the status of shares of Series B Preferred Stock, and
all rights of the holders thereof as stockholders of the Company (except the right to receive the
applicable Redemption Price on the Redemption Date) shall cease, unless the Corporation defaults in
the payment of the Redemption Price on the Redemption Date, in which case all rights of the holders
to whom payment of the Redemption Price was not made on the Redemption Date shall continue until
the Redemption Price is paid to such holders, and such holders shall have the rights of the terms
of the Series B Preferred Stock set forth herein.




5. Conversion.



(a) Right to Convert. Subject to and in compliance with this Section A.5.,
each share of Series B 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 price at which shares of
Common Stock shall be deliverable upon conversion of Series B Preferred Stock without the payment
of additional consideration by the holder thereof (the “Conversion Price”) shall initially be
$2.162676 per share. Such initial Conversion Price shall be subject to adjustment from time to time
as provided in this Section A.5.



(b) Mechanics of Conversion. Each holder of Series B 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 B
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
B 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 B 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.


 


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(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.5.(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 B
Preferred Stock are originally issued under this Certificate of Designation.



(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.5.(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 B 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 B 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.5 with respect to the rights
of the holders of the Series B 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 B 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.5), then and in
any such event each holder of Series B Preferred Stock shall have the right thereafter to convert
such Series B 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 B Preferred Stock could have been converted
immediately prior to such recapitalization, reclassification or change, all subject to further
adjustment as provided herein.


 


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(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 B Preferred Stock or 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 B Preferred Stock.




(h) Sale of Shares.




(1) If at any time or from time to time after the Original Issue Date, the Corporation
issues or sells, or is deemed by the express provisions of this subsection A.5.(h)
to have issued or sold, Additional Shares of Common Stock (as hereinafter defined), other
than as a dividend or other distribution on any class of stock as provided in subsection
A.5.(d) above and other than upon a subdivision or combination of shares of Common Stock
as provided in subsection A.5.(c) above, then and in each such event the Conversion
Price then in effect shall be adjusted as of the time of such issuance or sale 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 sale 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 sale plus the number of shares of Common
Stock issued or sold.




(2) For the purpose of the adjustment required under this subsection A.5.(h),
if the Corporation issues or sells any rights or options for the purchase of, or stock or
other securities convertible or exchangeable, with or without consideration, into Additional
Shares of Common Stock (such convertible or exchangeable stock or securities being
hereinafter referred to as “Convertible Securities”), then in each case the Corporation
shall be deemed to have issued at the time of the issuance of such rights or options or
Convertible Securities the maximum number of Additional Shares of Common Stock issuable upon
exercise or conversion thereof. No further adjustment of the Conversion Price, adjusted upon
the issuance of such rights, options or Convertible Securities, shall be made as a result of
the actual issuance of Additional Shares of Common Stock on the exercise of any such rights
or options or the conversion of any such Convertible Securities.




If any such rights or options, or the conversion or exchange privilege represented by
any such Convertible Securities, shall expire without having been exercised, the Conversion
Price adjusted upon the issuance of such rights, options or Convertible Securities shall be
readjusted to the Conversion Price which would have been in effect had an adjustment been
made on the basis that the only Additional Shares of Common Stock so issued were the
Additional Shares of Common Stock, if any, actually issued or sold on the exercise of such
rights or options or rights of conversion or exchange of such Convertible Securities.
Further, if any shares of Common Stock issuable upon the exercise or conversion of options
or warrants that are issued and outstanding on the Original Issue Date shall no longer be
issuable thereunder due to expiration, termination or otherwise, the Conversion Price shall
be adjusted as of the time of such expiration 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
expiration,
plus the number of shares of Common Stock no longer exercisable pursuant to such option or
warrant 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 expiration.


 


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(3) For the purpose of the adjustment required under this subsection
A.5.(h), if the Corporation issues or sells any rights or options for the purchase of
Convertible Securities, then in each such case the Corporation shall be deemed to have
issued at the time of the issuance of such rights or options the maximum number of
Additional Shares of Common Stock issuable upon conversion or exchange of the total amount
of Convertible Securities covered by such rights or options. No further adjustment of the
Conversion Price, adjusted upon the issuance of such rights or options, shall be made as a
result of the actual issuance of the Convertible Securities upon the exercise of such rights
or options or upon the actual issuance of Additional Shares of Common Stock upon the
conversion of such Convertible Securities. The provisions of paragraph (2) above for the
readjustment of the Conversion Price upon the expiration of rights or options or the rights
of conversion or exchange of Convertible Securities shall apply mutatis
mutandis to the rights, options and Convertible Securities referred to in this
paragraph (3).



(i) 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 (ii) 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 B 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.



(j) Fractional Shares. No fractional shares of Common Stock shall be issued
upon conversion of Series B Preferred Stock. If more than one share of Series B 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 B 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.


 


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(k) 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 B 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 B 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 B 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.



(1) Notices. All notices and other communications required by the provisions of
this Section A.5 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.



(m) 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 B 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 B Preferred Stock so converted were registered.



(n) 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 B Preferred Stock against dilution or other
impairment.



6. Voting. The holders of shares of Series B 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 B Preferred Stock held by such holder could be converted, pursuant to the
provisions of Section A.5, 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 B Preferred Stock shall vote together
as a single class with the holders of Series A Preferred Stock and Common Stock on all matters.


 


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B. GENERAL PROVISIONS




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



“Additional Shares of Common Stock” means all shares of Common Stock issued after the
Original Issue Date, in each event other than shares of Common Stock issued upon conversion of the
Series A Preferred Stock or the Series B Preferred Stock.



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



An “Event of Default” shall exist if within 45 days from the Original Issue Date any representation
or warranty made or deemed made by or on behalf of the Corporation in the Purchase Agreement, or
any amendment or modification thereof or waiver thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection the Purchase
Agreement, or any amendment or modification thereof or waiver thereunder, shall prove to have been
materially incorrect when made or deemed made.



“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
and Series B 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.



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



“Parity Stock” means Series A Preferred Stock and any class or series of capital stock of the
Corporation ranking on a parity with the Series B 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 July 18, 2008,
by and between the Corporation and Radical Holdings LP.



“Stated Value” means a stated value per share equal to $7.17092619 with respect to the Series B
Preferred Stock.





 


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