ASSET PURCHASE AGREEMENT

Exhibit 10.22

ASSET PURCHASE AGREEMENT

THIS ASSET PURCHASE AGREEMENT (this “ Agreement ”), dated August 31, 2007, is by and among Radical Holdings LP, a Texas limited partnership (“ Seller ”), Immediatek, Inc., a Nevada corporation (“ Immediatek ”), and IMKI Ventures, Inc., a Delaware corporation and a wholly-owned subsidiary of Immediatek (“ Buyer ” and, together with Immediatek, the “ Buyer Parties ” and, together with Seller, collectively, the “ Parties ”).

RECITALS:

WHEREAS, Seller has acquired certain assets; and

WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, the Purchased Assets (as hereinafter defined), all on the terms and subject to the conditions set forth herein.

AGREEMENT:

NOW, THEREFORE, in consideration of the premises, the respective representations, warranties, covenants and agreements contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:

ARTICLE 1
PURCHASE AND SALE OF ASSETS

(a) Purchased Assets . Buyer hereby purchases from Seller, and Seller hereby transfers and delivers to Buyer, all rights, titles and interests in and to all of the assets listed on Schedule 1.1(a) attached hereto (all of the assets listed on Schedule 1.1(a) are referred to herein, collectively, as the “ Purchased Assets ”).

(b) Excluded Assets . The Purchased Assets will exclude the following (collectively, the “ Excluded Assets ”), which shall remain Seller’s property immediately following the Closing (as defined in Section 1.3 ): (i) any of Seller’s rights under this Agreement, each Contract (as defined in Section 3.8 hereof) or writing executed or delivered in connection with this Agreement and each amendment or supplement to any of the foregoing (including this Agreement, the “ Transaction Documents ”); and (ii) any asset not specifically identified on Schedule 1.1(a) .

(a) Assumed Liabilities . Buyer hereby assumes, and becomes responsible for, the liabilities and obligations of Seller (collectively, the “ Assumed Liabilities ”) listed on Schedule 1.2(a) .

 

Asset Purchase Agreement — Radical/Immediatek

(b) Excluded Liabilities . The Assumed Liabilities exclude, and Buyer does not assume or have any responsibility with respect to, all other liabilities or obligations of Seller (collectively, the “ Excluded Liabilities ”), including liabilities or obligations: (i) for taxes of any kind whatsoever; (ii) for costs and expenses incurred in connection with negotiating the Transaction Documents and performing the transactions contemplated thereby (the “ Transactions ”); (iii) under any Transaction Document; (vi) under any Contract, regardless of whether Seller’s rights thereunder are included in the Purchased Assets, unless such Contract is listed as an Assumed Liability on Schedule 1.2(a) ; and (v) not specifically identified on Schedule 1.2(a) .

1.3 Purchase Price. The purchase price for the Purchased Assets (the “ Purchase Price ”) is 60,514 shares of Immediatek common stock (the “ Immediatek Shares ”), which represents the quotient of $151,285 and the closing price of the shares of Immediatek common stock as reported by the Over-the-Counter Bulletin Board (“ OTCBB ”) on the trading day immediately preceding the Closing Date (as defined in Section 1.4 hereof). Immediatek tendered the Immediatek Shares, or will irrevocably instruct the Immediatek Shares to be tendered, upon the execution and delivery of this Agreement by all Parties (the “ Closing ”) to Seller. Buyer and Seller will file IRS Form 8594, if applicable, and all federal, state, local and foreign tax returns, in accordance with the purchase price allocation set forth on Schedule 1.3 .

1.4 Deliveries. On the date of Closing (the “ Closing Date ”),

(a) Seller has delivered, or caused to be delivered, to Buyer (i) a bill of sale and, if necessary, an assignment and assumption agreement, each duly executed by Seller, (ii) such other bills of sale, certificates of title or origin, deeds, assignments and other instruments of transfer or conveyance as may be otherwise necessary to evidence and effect the assignment and delivery of the Purchased Assets to Buyer, and (iii) an officer’s certificate and a secretary’s certificate for Seller, duly executed by the appropriate person; and

(b) The applicable Buyer Parties have delivered, or caused to be delivered, to Seller (i) the Purchase Price, (ii) if necessary, an assignment and assumption agreement duly executed by Buyer, and (iii) an officer’s certificate and a secretary’s certificate for each Buyer Party, each duly executed by the appropriate person.

ARTICLE 2
REPRESENTATIONS AND WARRANTIES CONCERNING THE BUYER PARTIES

Each Buyer Party, jointly and severally, represents and warrants to Seller that the statements contained in this ARTICLE 2 are correct and complete on the Closing Date, except as set forth in the schedules that the Buyer Parties delivered to Seller on the Closing Date.

2.1 Organization of Buyer Parties. Each Buyer Party is an entity duly organized, validly existing and in good standing under the Laws (as defined in Section 3.3 hereof) of the jurisdiction of its organization. Each Buyer Party has the requisite entity power and authority necessary to own or lease its properties and to carry on its businesses as currently conducted. There is no pending, or (to each Buyer Party’s knowledge) threatened, action, suit, arbitration, mediation, investigation or similar proceeding (an “ Action ”) for the dissolution, liquidation, insolvency or rehabilitation of such Buyer Party.

 

Asset Purchase Agreement — Radical/Immediatek

2.2 Authority of Buyer Parties; Enforceability. Each Buyer Party has the relevant entity power and authority necessary to execute and deliver each Transaction Document to which it is a party and to perform and consummate the Transactions. Each Buyer Party has taken all action necessary to authorize its execution and delivery of each Transaction Document to which such Buyer Party is a party, the performance of its respective obligations thereunder and its consummation of the Transactions. Each Transaction Document to which the Buyer Party is a party has been duly authorized, executed and delivered by such Buyer Party and is enforceable against such Buyer Party in accordance with its terms, except as such enforceability may be subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other Laws relating to or affecting the rights of creditors and general principles of equity (an “ Enforceability Exception ”).

2.3 No Violation. Except as listed on Schedule 2.3 , the execution and delivery by each Buyer Party of this Agreement and the other Transaction Documents to which such Buyer Party is a party, the performance by each Buyer Party of its respective obligations hereunder and thereunder and the consummation of the Transactions by each Buyer Party will not (a) with or without notice or lapse of time, constitute or create a material breach or violation of, or material default under, any Law, Order, Contract or Permit (as defined in Section 3.3 hereof) to which such Buyer Party is a party or by which it is bound or any provision of such Buyer Party’s organizational documents as in effect on the Closing Date, (b) require any consent, approval, notification, waiver or other similar action (a “ Consent ”) under any Contract or organizational document to which the Buyer Party is a party or by which it is bound or (c) require any Permit under any Law or Order, other than (i) required filings, if any, with the Securities and Exchange Commission or (ii) notifications or other filings with state or federal regulatory agencies after the Closing that are necessary or convenient and do not require approval of the agency as a condition to the validity of the Transactions.

2.4 Immediatek Common Stock . The Immediatek Shares have been duly authorized, and when issued in accordance with the terms and conditions of this Agreement, the Immediatek Shares will be duly and validly issued, fully paid and nonassessable and free and clear of all liens, charges, restrictions, claims and encumbrances, other than restrictions on transfer imposed by the Securities Act (as defined in Section 3.15(a) hereof) and applicable state securities laws.

ARTICLE 3
SELLER’S REPRESENTATIONS AND WARRANTIES

Seller hereby represents and warrants to the Buyer Parties that the statements contained in this ARTICLE 3 are correct and complete on the Closing Date, except as set forth in the schedules Seller delivered to the Buyer Parties on the Closing Date.

 

Asset Purchase Agreement — Radical/Immediatek

3.1 Entity Status. (a) Seller is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization, (b) Seller is duly authorized to conduct its business and is in good standing under the Laws of each jurisdiction where such qualification is required, (c) Seller has the requisite entity power and authority necessary to own or lease its properties and to carry on its businesses as currently conducted, (d) Seller is not in breach or violation of, or default under, any provision of its organizational documents and (e) there is no pending, or (to Seller’s knowledge) threatened, Action for its dissolution, liquidation, insolvency or rehabilitation.

3.2 Power and Authority; Enforceability. Seller has the relevant entity power and authority necessary to execute and deliver each Transaction Document to which it is a party and to perform and consummate the Transactions. Seller has taken all action necessary to authorize the execution and delivery by Seller of each Transaction Document to which it is a party, the performance of its obligations thereunder, and the consummation by Seller of the Transactions. Each Transaction Document to which Seller is a party has been duly authorized, executed and delivered by Seller and is enforceable against Seller in accordance with its terms, subject to an Enforceability Exception.

3.3 No Violation. Except as listed on Schedule 3.3 , the execution and delivery by Seller of this Agreement and the other Transaction Documents to which Seller is a party, the performance by Seller of its obligations hereunder and thereunder, the consummation of the Transactions by Seller and Buyer’s ownership of the Purchased Assets immediately following the Closing will not (a) with or without notice or lapse of time, constitute or create a material breach or violation of, or material default under, any (i) law (statutory, common or otherwise), constitution, ordinance, rule, regulation, executive order or other similar authority (“ Law ”) enacted, adopted, promulgated or applied by any legislature, agency, bureau, branch, department, division, commission, court, tribunal or other similar recognized organization or body of any federal, state, county, municipal, local or foreign government or other similar recognized organization or body exercising similar powers or authority (a “ Governmental Body ”), (ii) order, ruling, decision, award, judgment, injunction or other similar determination or finding by, before or under the supervision of any Governmental Body or arbitrator (an “ Order ”), (iii) Contract or Permit to which, in the case of (i), (ii) or (iii), Seller is a party or by which it is bound or to which any Purchased Asset is subject, or (iv) organizational document of Seller as in effect on the Closing Date, (b) result in the imposition of any lien, claim or encumbrance (an “ Encumbrance ”) upon any Purchased Asset, other than Permitted Encumbrances (as defined in Section 3.7 ), (c) require any Permit or Consent under any Law, Order, Contract or organizational document to which Seller is a party or by which Seller is bound or to which any Purchased Asset is subject or (d) in any other way materially and adversely impair any Purchased Asset. For purposes of this Agreement, “ Permit ” means permits, licenses, certificates, waivers, notices and similar authorizations.

3.4 Subsequent Events; Solvency. Except as set forth in Schedule 3.4 , since August 15, 2007 to the Closing Date, there have been no events, series of events or the lack of occurrence thereof that, singularly or in the aggregate, could reasonably be expected to have a material adverse effect on the Purchased Assets. Seller is not now insolvent, nor will Seller be rendered insolvent by any of the Transactions. A person is “ insolvent ” for purposes of this Section 3.4 when the sum of its liabilities and obligations is greater than a fair valuation of all of its property.

 

Asset Purchase Agreement — Radical/Immediatek

3.5 No Undisclosed Liabilities. The Purchased Assets are not subject to any liability or obligation (and, to Seller’s knowledge, there is no basis for any present or future Action or Order against Seller or the Purchased Assets giving rise to any liability or obligation), except for (a) those reflected on Schedule 1.2(a) and (b) those arising after August 15, 2007, in Seller’s ordinary course of business, which, individually or in the aggregate, are not material and that do not (i) result from, or relate to, any tort or infringement or any breach, violation of or default under any Law, Order, Permit or Contract or (ii) arise out of any Action or Order. Seller does not have any liability or obligation to pay any compensation to any broker, finder or agent with respect to the Transactions for which the Buyer Parties could become directly or indirectly responsible.

3.6 Legal Compliance. Seller has materially complied with all Laws and Orders, and no Action is pending or, to Seller’s knowledge, threatened against Seller alleging any failure to so comply. No material expenditures are, or based on any Law, Order or Permit will be, required of Buyer to own and operate the Purchased Assets in compliance with all Laws, Orders and Permits at the time immediately following the Closing.

3.7 Availability, Title to and Condition of Purchased Assets. Except as set forth on Schedule 3.7 , (a) Seller has (and subject to Buyer’s own actions after the Closing, Buyer will have) good, marketable and indefeasible title to, or a valid leasehold interest in, all of the Purchased Assets, in each case free and clear of any Encumbrances other than (i) statutory, mechanics’ or other liens that were incurred in Seller’s ordinary course of business, (ii) Encumbrances that are being contested in good faith and for which adequate reserve has been made, (iii) liens for Taxes incurred but not yet due and (iv) Encumbrances set forth on Schedule 3.7 (collectively, “ Permitted Encumbrances ”) and (b) all tangible assets (except for Excluded Assets) included as part of the Purchased Assets, whether owned or leased, are free from defects (patent and latent), have been maintained in accordance with normal industry practice, are in good operating condition (subject to normal wear and tear) and are suitable for the purposes for which they are currently used and currently proposed to be used.

3.8 Contracts. Schedule 3.8 lists each contract, agreement, arrangement, commitment, instrument, document or similar understanding (whether written or oral), including leases, subleases and rights thereunder (“ Contracts ”) that relates to any of the Purchased Assets. Seller has delivered to Buyer a correct and complete copy of each written Contract (as amended to date) listed on Schedule 3.8 and a written summary setting forth the terms and conditions of each oral Contract referred to in Schedule 3.8 . Each such Contract is enforceable and will continue to be enforceable on identical terms following the consummation of the Transactions. Neither Seller nor, to Seller’s knowledge, any of the counter-parties to any such Contract is, or has been, in (and no event has occurred that, with or without notice or lapse of time, would create or constitute a) breach or violation of, or default under, any of such Contract’s material provisions. No party to such Contract has repudiated any provision of the Contract. Schedule 3.8 denotes each such Contract to which Seller or any of its Affiliates is a party (excluding Seller). Each of the Contracts listed on Schedule 3.8 is assignable by Seller or its Affiliates without any other person’s Consent. “ Affiliate ” with respect to a specified person means any other person who, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, the specified person.

 

Asset Purchase Agreement — Radical/Immediatek

3.9 Litigation. Schedule 3.9 sets forth each instance in which Seller (a) is subject to any outstanding Order or (b) is a party or the subject of, or, to Seller’s knowledge, is threatened to be made a party to or the subject of, any Action. No Order or Action required to be set forth in Schedule 3.9 questions the enforceability of a Transaction Document or the Transactions, or could result in any material adverse effect on the Purchased Assets, nor does Seller have any basis to believe that any such Action may be brought or threatened against Seller or any Buyer Party.

3.10 Environmental, Health and Safety Matters. As used in this Agreement, “ Environmental, Health and Safety Requirements ” means all Laws, Orders, Permits, Contracts and programs (including those promulgated or sponsored by industry associations, insurance companies and risk management companies) concerning or relating to public health and safety, worker/occupational health and safety and pollution or protection of the environment, including those relating in any way to noises, radiation or chemicals, toxic or hazardous materials, substances or wastes, each as amended and as now in effect. Except as set forth in Schedule 3.10 , (a) Seller is in compliance with all Environmental, Health and Safety Requirements in connection with owning, using, maintaining or operating its business, operations or assets; (b) each location at which Seller operates, or has operated, the Purchased Assets is in compliance with all Environmental, Health and Safety Requirements; and (c) there are no pending or threatened allegations by any person that any of Seller’s properties or assets are not, or that the Seller’s operations have not been, conducted in compliance with all Environmental, Health and Safety Requirements.

(a)  Schedule 3.11 contains a list setting forth, (i) the name and current annual salary and other compensation payable by Seller or its Affiliates to each employee, independent contractor, agent or consultant of Seller or its Affiliates employed or engaged in connection with the Purchased Assets (an “ Employee ”); (ii) the profit sharing, bonus or other form of additional compensation paid or payable by Seller or its Affiliates to, or for the benefit of, each such Employee for the current fiscal year; and (iii) any and all loans outstanding from Seller or its Affiliates to any Employee. Except as set forth on Schedule 3.11 , there are no oral or written contracts, agreements or arrangements relating to compensation or performance awards or obligating Seller or its Affiliates to increase the compensation or benefits presently being paid or hereafter payable to any of the Employees. There is not due or owing, and there will not be due and owing at the Closing, to any of the Employees, any sick pay, severance pay (whether arising out of the termination of an Employee prior to or subsequent to the Closing), compensable time or pay, including, but not limited to, salary, commission and bonuses, personal time or pay or vacation time or vacation pay attributable to service rendered on or prior to the Closing Date, other than set forth on Schedule 3.11 . There is not now, and there will not be as of the Closing Date, any liability of, or claims against, Seller or its Affiliates (including, without limitation, workers’ compensation claims and claims or suits for contribution to, or indemnification of, third parties, occupational health and safety, environmental, consumer protection or equal employment matters) for injury, sickness, disease, discrimination, death or termination of employment of any Employee or other employment matter (including, without limitation, any Employee or former Employee or any contractor or subcontractor of Seller or its Affiliates), to the extent attributable to an event occurring, or a state of facts existing, prior to the Closing other than as set forth on Schedule 3.11 ; it being understood and agreed that Seller