Filed by Bowne Pure Compliance
UNITED STATES
SECURITES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
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þ |
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period ended September 30, 2008
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE EXCHANGE ACT |
For the transition period from to
Commission file number: 000-26073
IMMEDIATEK, INC.
(Exact name of registrant as specified in its charter)
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Nevada
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86-0881193 |
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(State or other jurisdiction of incorporation or
organization)
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(IRS Employer Identification No.) |
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320 South Walton |
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Dallas, Texas
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75226 |
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(Address of principal executive offices)
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(Zip code) |
(214) 744-8801
(Issuers telephone number, including area code)
(Former name, former address and former fiscal year, if changed since last report)
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes þ No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
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Large accelerated filer o
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Accelerated filer o
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Non-accelerated filer o
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Smaller reporting company þ |
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(Do not check if a smaller reporting company)
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the
Exchange Act).
Yes o No þ
As of November 14, 2008, the issuer had 535,321 shares of common stock outstanding.
IMMEDIATEK, INC.
TABLE OF CONTENTS
i
INTRODUCTION
Unless the context otherwise indicates, all references in this Quarterly Report on Form 10-Q
to the Company, Immediatek, DiscLive, IMKI Ventures, we, us, our or ours or
similar words are to Immediatek, Inc. and its direct, wholly-owned subsidiaries, DiscLive, Inc. or
IMKI Ventures, Inc. Accordingly, there are no separate financial statements for DiscLive, Inc. or
IMKI Ventures, Inc.
TRADEMARKS AND SERVICE MARKS
This Quarterly Report on Form 10-Q contains registered trademarks and servicemarks owned or
licensed by entities and persons other than us.
MARKET AND INDUSTRY DATA AND FORECASTS
Market and industry data and other statistical information and forecasts used throughout this
Quarterly Report on Form 10-Q are based on independent industry publications, government
publications and reports by market research firms or other published independent sources. Some
data also is based on our good faith estimates, which are derived from our review of internal
surveys, as well as independent sources. Forecasts are particularly likely to be inaccurate,
especially over long periods of time.
FORWARD-LOOKING STATEMENTS
This Quarterly Report on Form 10-Q and the materials incorporated by reference into this
Quarterly Report on Form 10-Q include forward-looking statements intended to qualify for the safe
harbor from liability established by the Private Securities Litigation Reform Act of 1995. These
forward-looking statements generally can be identified as such because the context of the statement
includes words such as may, estimate, intend, plan, believe, expect, anticipate,
will, should or other similar expressions. Similarly, statements in this Quarterly Report on
Form 10-Q that describe our objectives, plans or goals also are forward-looking statements. These
statements include those made on matters such as our financial condition, litigation, accounting
matters, our business, our efforts to grow our business and increase efficiencies, our efforts to
use our resources judicially, our efforts to implement new financial software, our liquidity and
sources of funding and our capital expenditures. All forward-looking statements are subject to
certain risks and uncertainties that could cause actual results to differ materially from those in
the forward-looking statements. The forward-looking statements included in this Quarterly Report
on Form 10-Q are made only as of the date of this report. We assume no obligation to update any
forward-looking statements. Certain factors that could cause actual results to differ include,
among others:
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our inability to continue as a going concern; |
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our history of losses, which are likely to continue; |
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our inability to utilize the funds received in a manner that is accretive; |
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our inability to generate sufficient funds from operating activities to fund
operations; |
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difficulties in developing and marketing new products; |
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inability to locate lines of business to acquire or, if acquired, to integrate
them; |
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inability to execute our growth and acquisition strategy; |
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dependence on third-party contractors and third-party platforms and websites; and |
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changes in conditions affecting the economy generally. |
For a discussion of these and other risks and uncertainties that could cause actual results to
differ materially from those contained in our forward-looking statements, please refer to Risk
Factors in the Companys Annual Report on Form 10-KSB for the fiscal year ended December 31, 2007,
which was filed with the Securities and Exchange Commission, or SEC, on March 28, 2008.
1
PART I UNAUDITED FINANCIAL INFORMATION
Item 1. Unaudited Financial Statements.
Immediatek, Inc.
Unaudited Condensed Consolidated Balance Sheets
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September 30, |
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December 31, |
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2008 |
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2007 |
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Assets |
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Current assets: |
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Cash |
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$ |
410,666 |
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$ |
589,787 |
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Accounts receivable (including $2,174 due from a related party at September 30, 2008) |
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2,227 |
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3,575 |
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Prepaid expenses and other current assets |
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8,350 |
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3,088 |
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Total current assets |
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421,243 |
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596,450 |
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Fixed assets, net |
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81,450 |
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102,672 |
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Assets held for sale |
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67,602 |
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68,304 |
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Total Assets |
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$ |
570,295 |
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$ |
767,426 |
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Liabilities, Preferred Stock and Stockholders Deficit |
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Current liabilities: |
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Accounts payable (including $4,509 and $23,976 due to related parties at September 30, 2008 and
December 31, 2007, respectively) |
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$ |
10,173 |
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$ |
24,026 |
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Accrued liabilities |
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2,392 |
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3,064 |
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Total current liabilities |
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12,565 |
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27,090 |
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Series A convertible preferred stock (conditionally redeemable); $0.001 par value
4,392,286 authorized, issued and outstanding at September 30, 2008 and
December 31, 2007; redemption/liquidation preference value of $3,000,000 |
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3,000,000 |
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3,000,000 |
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Series B convertible preferred stock (conditionally redeemable); $0.001 par value
69,726
authorized, issued and outstanding at September 30, 2008 and 0 authorized,
issued and
outstanding at December 31, 2007; redemption/liquidation
preference value of $500,000 |
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500,000 |
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Stockholders deficit: |
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Common stock, $0.001 par value, 500,000,000 shares
authorized and 535,321shares issued and outstanding
at September 30, 2008 and December 31, 2007 |
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535 |
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535 |
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Additional paid in capital |
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110,602 |
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79,102 |
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Accumulated deficit |
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(3,053,407 |
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(2,339,301 |
) |
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Total stockholders deficit |
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(2,942,270 |
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(2,259,664 |
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Total Liabilities, Preferred Stock and Stockholders Deficit |
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$ |
570,295 |
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$ |
767,426 |
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See accompanying notes to unaudited condensed consolidated financial statements.
2
Immediatek, Inc.
Unaudited Condensed Consolidated Statements of Operations
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For the Three Months Ended |
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For the Nine Months Ended |
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September 30, |
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September 30, |
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2008 |
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2007 |
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2008 |
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2007 |
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Revenues |
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$ |
82 |
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$ |
2,610 |
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$ |
619 |
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$ |
21,167 |
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Cost of sales |
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1,510 |
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21,661 |
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Gross (loss) margin |
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82 |
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1,100 |
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619 |
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(494 |
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Expenses: |
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General and administrative expenses |
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9,160 |
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7,204 |
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40,287 |
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24,114 |
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Consulting services |
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8,406 |
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1,738 |
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23,738 |
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6,064 |
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Consulting services related party |
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40,108 |
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40,108 |
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Professional fees |
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27,915 |
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45,463 |
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142,372 |
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142,160 |
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Salaries and benefits |
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158,285 |
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6,214 |
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473,548 |
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109,238 |
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Non-cash consulting expense related party |
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10,500 |
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10,500 |
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31,500 |
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31,500 |
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Depreciation and amortization |
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6,979 |
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8,594 |
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21,222 |
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33,332 |
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(Gain) loss on sale of assets held for sale |
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378 |
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(221 |
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(309 |
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2,950 |
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Impairment of goodwill and intangibles |
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1,792,570 |
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Impairment of fixed assets |
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20,324 |
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Settlement of dispute |
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22,000 |
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Change in estimate of payroll tax liability |
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(159,994 |
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Total expenses |
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221,623 |
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119,600 |
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732,358 |
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2,064,366 |
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Net operating loss |
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(221,541 |
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(118,500 |
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(731,739 |
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(2,064,860 |
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Other income: |
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Other income related party |
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2,174 |
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13,703 |
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5,839 |
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Interest income |
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871 |
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6,285 |
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3,930 |
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21,599 |
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Net loss |
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$ |
(218,496 |
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$ |
(112,215 |
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$ |
(714,106 |
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$ |
(2,037,422 |
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Deemed dividend related to beneficial conversion
feature on Series B convertible preferred stock |
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(205,145 |
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(205,145 |
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Net loss attributable to common stockholders |
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$ |
(423,641 |
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$ |
(112,215 |
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$ |
(919,251 |
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$ |
(2,037,422 |
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Weighted average number of common shares
outstanding basic and fully diluted |
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535,321 |
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494,540 |
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535,321 |
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481,457 |
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Basic and diluted loss per common share |
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$ |
(0.79 |
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$ |
(0.23 |
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$ |
(1.72 |
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$ |
(4.23 |
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See accompanying notes to unaudited condensed consolidated financial statements.
3
Immediatek, Inc.
Unaudited Condensed Consolidated Statements of Cash Flows
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For the Nine Months Ended |
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September 30, |
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2008 |
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2007 |
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Cash flows from operating activities |
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Net loss |
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$ |
(714,106 |
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$ |
(2,037,422 |
) |
Depreciation and amortization |
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21,222 |
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33,332 |
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Non-cash consulting expense related party |
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31,500 |
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31,500 |
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(Gain) loss on sale of assets held for sale |
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(309 |
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2,950 |
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Change in estimate of payroll tax liability |
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(159,994 |
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Impairment of goodwill and intangibles |
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1,792,570 |
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Impairment of fixed assets |
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20,324 |
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Adjustments to reconcile net loss to net
cash used in operating activities: |
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Accounts receivable |
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1,348 |
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6,543 |
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Prepaid expenses and other current assets |
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(5,263 |
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(560 |
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Accounts payable |
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(13,853 |
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43,370 |
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Accrued liabilities |
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(672 |
) |
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(31,468 |
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Net cash used in operating activities |
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(680,133 |
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(298,855 |
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Cash flows from investing activities |
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Purchase of fixed assets |
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(3,549 |
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Proceeds from sale of fixed assets |
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1,012 |
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Net cash provided by (used in) investing activities |
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1,012 |
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(3,549 |
) |
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Cash flows from financing activities |
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Proceeds from issuance of Series B convertible
preferred stock |
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500,000 |
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Net cash provided by financing activities |
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500,000 |
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Net decrease in cash |
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(179,121 |
) |
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(302,404 |
) |
Cash beginning |
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589,787 |
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1,052,559 |
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Cash ending |
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$ |
410,666 |
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$ |
750,155 |
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Supplemental disclosures: |
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Interest paid |
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$ |
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$ |
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Income taxes paid |
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$ |
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$ |
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See accompanying notes to unaudited condensed consolidated financial statements.
4
IMMEDIATEK, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 2008
(Unaudited)
NOTE 1 DESCRIPTION OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Description of Business: Prior to October 1, 2007, Immediatek, through its wholly-owned, operating
subsidiary, DiscLive, Inc., recorded live content, such as concerts and conferences, and made the
recorded content available for delivery to attendees within fifteen minutes after the conclusion of
a live event. On October 1, 2007, DiscLive, Inc. ceased retail sales of its products in conjunction
with the decision not to further pursue that line of business.
On August 29, 2007, Immediatek formed a wholly-owned subsidiary, IMKI Ventures, Inc. IMKI
Ventures, Inc. acquired certain assets from a related party on August 31, 2007. The consideration
paid for the acquired assets was 60,514 shares of Immediatek common stock. Those acquired assets
were developed into our e-commerce product called RadicalBuy, which was launched in part on October
23, 2007. RadicalBuy is an online marketplace that, in addition to providing buyers and sellers an
online forum to buy and sell items, allows seller-approved third-parties to sell items on the
sellers behalf and earn a commission and enables sellers to list their items across various
internet platforms such as their Facebook® page, MySpace® page, blog or web page through the use of
a widget that is currently available from our RadicalBuy website.
Going Concern: The accompanying condensed consolidated financial statements have been prepared on
a going concern basis, which contemplates the realization of the assets of the Company and the
satisfaction of its liabilities and commitments in the normal course of business. See Note 2 for a
discussion of the Companys ability to continue as a going concern and its plans for addressing
those issues. The inability to obtain additional financing during the first quarter of 2009, when
required, could have a material adverse effect on the operations and financial condition of the
Company.
Basis of Presentation: The accompanying unaudited condensed consolidated financial statements of
the Company have been prepared pursuant to the rules and regulations of the Securities and Exchange
Commission (SEC). Certain information and formatted disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles have been omitted
pursuant to SEC rules and regulations. These condensed consolidated financial statements include
the accounts of the Companys wholly-owned subsidiaries, DiscLive, Inc. and IMKI Ventures, Inc.
(collectively, the Company). All significant intercompany accounts and transactions have been
eliminated in these condensed consolidated financial statements.
The Companys condensed consolidated balance sheet at September 30, 2008 and condensed
consolidated statements of operations for the nine months and three months ended September 30, 2008
and 2007 and condensed consolidated statements of cash flows for the nine months ended September
30, 2008 and 2007 are unaudited. Certain accounts have been reclassified to conform to the current
periods presentation. In the opinion of management, these financial statements have been prepared
on the same basis as the audited consolidated financial statements and include all adjustments
necessary for the fair presentation of the Companys financial position, results of operations and
cash flows. These adjustments were of a normal, recurring nature. The results of operations for the
periods presented in this Quarterly Report on Form 10-Q are not necessarily indicative of the
results that may be expected for the entire year. Additional information is contained in the
Companys Annual Report on Form 10-KSB for the fiscal year ended December 31, 2007, which was filed
with the SEC on March 28, 2008 and should be read in conjunction with this Quarterly Report on Form
10-Q.
Management Estimates and Significant Risks and Uncertainties: The preparation of the condensed
consolidated financial statements, in conformity with accounting principles generally accepted in
the United States of America, requires management of the Company to make estimates and assumptions
that affect the reported amounts of assets and liabilities, and the disclosure of contingent assets
and liabilities, at the dates of the financial statements and the reported amounts of revenues and
expenses during such reporting periods. Actual results could differ from these estimates.
5
IMMEDIATEK, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 2008
(Unaudited)
The Company is subject to a number of risks and can be affected by a variety of factors.
Management of the Company believes that the following factors, as well as others, could have a
significant negative effect on the Companys future financial position, results of operations or
cash flows:
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our inability to continue as a going concern; |
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our history of losses, which are likely to continue; |
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our inability to utilize the funds received in a manner that is accretive; |
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our inability to generate sufficient funds from operating activities to fund
operations; |
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difficulties in developing and marketing new products; |
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inability to locate lines of business to acquire or, if acquired, to integrate them; |
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inability to execute our growth and acquisition strategy; |
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dependence on third-party contractors and third-party platforms and websites; and |
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changes in conditions affecting the economy generally. |
Business Segments: Prior to August 31, 2007, the Company primarily operated only in one segment,
the production and sale of live recordings of events. On August 31, 2007, IMKI Ventures, a newly
created, wholly-owned subsidiary of the Company, acquired certain assets that it used to launch a
new business on October 23, 2007. On October 1, 2007, DiscLive ceased retail sales of its products
in connection with its determination not to further pursue the production and sale of live event
recordings. Accordingly, going forward, the Company anticipates that it will primarily operate in
the e-commerce line of business.
Net Loss per Share: Net loss was used in the calculation of both basic and diluted loss per share.
The weighted average number of shares of common stock outstanding was the same for calculating
both basic and diluted loss per share. Series A and Series B Convertible Preferred Stock
convertible into 14,794,999 shares of common stock outstanding at September 30, 2008 and options to
purchase common stock were not included in the computation of diluted loss per share, as the effect
of their inclusion would be anti-dilutive. Options and warrants to purchase shares of common stock
and Series A convertible Preferred Stock convertible into 10,171,099 shares of common stock
outstanding at September 30, 2007 were not included in the computation of diluted loss per share as
their inclusion would be anti-dilutive.
Comprehensive Loss: For all periods presented, comprehensive loss is equal to net loss.
Recently Issued Accounting Pronouncements:
In December 2007, the Financial Accounting Standards Board (FASB) issued Statement of
Financial Accounting Standards (FAS) No. 141 (Revised 2007), Business Combinations (FAS
141(R)). FAS 141(R) establishes principles and requirements for how an acquirer in a business
combination recognizes and measures in its financial statements the identifiable assets acquired,
liabilities assumed, and any noncontrolling interests in the acquiree, as well as the goodwill
acquired. Significant changes from current practice resulting from FAS 141(R) include the expansion
of the definitions of a business and a business combination. For all business combinations
(whether partial, full or step acquisitions), the acquirer will record 100% of all assets and
liabilities of the acquired business, including goodwill, generally at their fair values;
contingent consideration will be recognized at its fair value on the acquisition date and, for
certain arrangements, changes in fair value will be recognized in earnings until settlement; and
acquisition-related transaction and restructuring costs will be expensed rather than treated as
part of the cost of the acquisition. FAS 141(R) also establishes disclosure requirements to enable
users to evaluate the nature and financial effects of the business combination. FAS 141(R) applies
prospectively to business combinations for which the acquisition date is on or after the beginning
of the first annual reporting period beginning on or after December 15, 2008. Earlier adoption is
not permitted. The adoption of FAS 141(R) could have a material impact to the consolidated
financial statements for business combinations entered into after the effective date of FAS 141(R).
6
IMMEDIATEK, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 2008
(Unaudited)
In December 2007, the FASB issued FAS No. 160, Noncontrolling Interests in Consolidated
Financial Statements An amendment of ARB No. 51 (FAS 160). FAS 160 amends Accounting Research
Bulletin 51, Consolidated Financial Statements, to establish accounting and reporting standards
for the noncontrolling interest in a subsidiary and for the deconsolidation of a subsidiary. It
clarifies that a noncontrolling interest in a subsidiary, which is sometimes referred to as
minority interest, is a third-party ownership interest in the consolidated entity that should be
reported as a component of equity in the consolidated financial statements. Among other
requirements, FAS 160 requires the consolidated statement of income to be reported at amounts that
include the amounts attributable to both the parent and the noncontrolling interest. FAS 160 also
requires disclosure on the face of the consolidated statement of income of the amounts of
consolidated net income attributable to the parent and to the noncontrolling interest. FAS 160 is
effective for fiscal years, and interim periods within those fiscal years, beginning on or after
December 15, 2008. Earlier adoption is not permitted. We do not believe the adoption of FAS 160
will have a material impact on our consolidated financial statements.
In February 2008, the FASB issued FASB Staff Position No. FAS 157-2, Effective Date of FASB
Statement No. 157 (FSP 157-2), to partially defer FASB Statement No. 157, Fair Value
Measurements (FAS 157). FSP 157-2 defers the effective date of FAS 157 for nonfinancial assets
and nonfinancial liabilities, except those that are recognized or disclosed at fair value in the
financial statements on a recurring basis (at least annually), to fiscal years, and interim periods
within those fiscal years, beginning after November 15, 2008. We are currently evaluating the
impact of adopting the provisions of FAS 157 as it relates to non-financial assets and liabilities.
The partial adoption of FAS 157 on January 1, 2008 with respect to financial assets and
financial liabilities recognized or disclosed at fair value in the financial statements on a
recurring basis did not have a material impact on our consolidated financial statements. We are in
the process of analyzing the potential impact of FAS 157 relating to our planned December 31, 2008
adoption of the remainder of the standard.
NOTE 2 GOING CONCERN
As shown in the accompanying condensed consolidated financial statements, as of September 30,
2008, the Company had an accumulated deficit of $3,053,407 and during the nine months ended
September 30, 2008, the Company incurred a net loss of $714,106 and used cash in operations of
$680,133. The Companys historical and continuing losses raise substantial doubt about the
Companys ability to continue as a going concern.
As of September 30, 2008, we had $410,666 of operating funds. The Company raised $500,000
through sale of preferred stock discussed in Note 3 below. As a result of this sale, we currently
anticipate that our available funds and expected cash flows from operations will be sufficient to
meet our cash needs for 2008. We will require additional financing to continue operations in 2009.
If substantial growth in our revenues does not occur, we may not be able to achieve or maintain
profitability in the future. The amount of losses we will incur before achieving profitability,
and the time required to reach profitability, are each highly uncertain. No assurances can be
given that we will ever achieve profitability. We expect to continue to experience operating
losses. Our ability to obtain financing will depend, among other things, on our development
efforts, business plans, operating performance and condition of the capital markets at the time we
seek financing. No assurances can be given that additional financing will be available to us on
favorable terms when required, or at all. If we raise additional funds through the issuance of
equity, equity-linked or debt securities, those securities may have rights, preferences or
privileges senior to the rights of our common stock, and our stockholders may experience dilution.
Further, the Company may identify and pursue additional acquisitions. In the event that the
Company consummates an additional acquisition, it may require additional funds prior to the end of
2008. No assurances, however, can be given that those opportunities can be realized upon, if
available.
7
IMMEDIATEK, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 2008
(Unaudited)
The accompanying consolidated financial statements have been prepared on a going concern
basis, which contemplates the realization of assets and the satisfaction of liabilities in the
normal course of business. These financial statements do not include any adjustments to the
recoverability and classification of recorded asset amounts or the amount and classification of
liabilities that might be necessary should the Company be unable to continue as a going concern.
NOTE 3 SERIES B CONVERTIBLE PREFERRED STOCK
On July 18, 2008, the Company and Radical Holdings LP entered into a Securities Purchase
Agreement, or the Purchase Agreement. Subject to the terms and conditions of the Purchase
Agreement, the Company agreed to adopt and file a Certificate of Designation, Rights and
Preferences establishing the Series B Convertible Preferred Stock and issued and sold, and Radical
Holdings LP purchased, 69,726 shares of Series B Convertible Preferred Stock of the Company for an
aggregate purchase price of $500,000, or $7.17092619 per share of Series B Convertible Preferred
Stock. The shares of Series B Convertible Preferred Stock are convertible into that aggregate
number of full shares of Company common stock representing at least 1.50809% of the total voting
power of all outstanding shares of capital stock of the Company, including outstanding common
stock.
The following is a summary of the material terms of the Series B Convertible Preferred Stock
issued to Radical Holdings LP under the Purchase Agreement:
Dividends. The holders of the Series B Convertible Preferred Stock are not entitled to any
preferential dividends. Holders of the Series B Convertible Preferred Stock, however, are entitled
to participate, on an as-converted basis, in any cash dividends declared and paid on shares of
Company common stock.
Liquidation. Upon the liquidation, dissolution or winding up of the Company, including an
acquisition of the Company that results in the sale of more than 50% of the outstanding voting
power of the Company, or the sale or exclusive license of all or substantially all of the assets of
the Company, the holders of the Series B Convertible Preferred Stock, pari passu with Series A
Convertible Preferred Stock, will be entitled to receive, out of the legally available funds and
assets of the Company, before any payment is made on any shares of Company common stock or other
junior stock, an amount per share equal to the greater of:
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$7.17092619 per share of Series B Convertible Preferred Stock; and |
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the amount that the holder of that share of Series B Convertible Preferred
Stock would have received had the holder converted that share into shares of Company
common stock immediately prior to the liquidation event. |
If the legally available funds and assets of the Company are insufficient to pay the holders of
shares of the Series B Convertible Preferred Stock and Series A Convertible Preferred Stock the
full amount to which they are entitled, the holders of shares of the Series B Convertible Preferred
Stock and the holders of Series A Convertible Preferred Stock and any other capital stock of the
Company that is on a parity with the Series B Convertible Preferred Stock will share ratably in any
distribution of the remaining legally available funds and assets of the Company.
Ranking. The Series B Convertible Preferred Stock shall, with respect to rights on
liquidation, winding up, corporate reorganization and dissolution, rank pari passu with Series A
Convertible Preferred Stock and senior to the shares of Company common stock and other junior
stock.
Optional Redemption. Upon an Event of Default (described below), the holders of a
majority-in-interest of the Series B Convertible Preferred Stock then outstanding may require the
Company to redeem the Series B Convertible Preferred Stock at a redemption price of $7.17092619 per
share, plus declared and unpaid dividends, if any, to the redemption date.
8
IMMEDIATEK, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 2008
(Unaudited)
An Event of Default exists if, within 45 days of the original issue date of the Series B
Convertible Preferred Stock, a representation or warranty made by the Company in the Purchase
Agreement or in any other document shall prove to be materially incorrect when made, or the Company
shall fail to satisfy certain obligations under the Purchase Agreement.
Conversion. The shares of Series B Convertible Preferred Stock shall be convertible into
that aggregate number of full shares of Company common stock representing at least 1.50809% of the
total voting power of all outstanding shares of capital stock of the Company, including outstanding
common stock. Accordingly, the conversion price is subject to downward adjustments in order to
cause the holders of the Series B Convertible Preferred Stock, collectively, to own 1.50809% of the
outstanding shares of Company common stock upon conversion of all Series A Convertible Preferred
Stock and Series B convertible Preferred Stock. The conversion price of a share of Series B
Convertible Preferred Stock into shares of Company common stock also is subject to adjustment, from
time to time, for, among other reasons, stock splits, combinations, dividends and distributions.
The Series B Convertible Preferred Stock is convertible at any time into Company common stock.
An intrinsic value exists for a beneficial conversion feature if the market value of the Company
common stock that can be acquired by conversion of the Series B Convertible Preferred Stock is
greater than the carrying value of those shares before issue costs.
On June 18, 2008, the Company issued 69,726 shares of Series B Convertible Preferred Stock at
a per share price of $7.17092619 to Radical Holdings LP for cash proceeds of $500,000. The
beneficial conversion feature represents the difference between the fair market value of Company
common stock and the conversion price on the date of issuance of the Series B Convertible Preferred
Stock, multiplied by the number of shares of common stock that would be received upon conversion.
The Company recorded a deemed dividend due to the beneficial conversion price of $205,145, which
represents the lesser of the proceeds or the beneficial conversion feature of $205,145.
Voting. The holders of the shares of Series B Convertible Preferred Stock will be entitled
to vote on all matters required or permitted to be voted upon by the stockholders of the Company.
Each holder of a share of Series B Convertible Preferred Stock is entitled to the number of votes
equal to the largest number of full shares of Company common stock into which all shares of Series
B Convertible Preferred Stock held by that holder could be converted. Except as required by law on
matters requiring class voting, the holders of the Series B Convertible Preferred Stock, the Series
A Convertible Preferred Stock and Company common stock will vote together as a single class.
Classification. Since the redemption right with respect to the Series B Convertible
Preferred Stock is conditional, the Series B Convertible Preferred Stock is not a liability under
SFAS No. 150, Accounting for Certain Financial Instruments with Characteristics of both
Liabilities and Equity, but should be classified as equity. Based on the guidance in EITF D-98,
Classification and Measurement of Redeemable Securities, however, the Series B Convertible
Preferred Stock is classified outside of permanent stockholders equity. Except in the case of an
ordinary liquidation event that involves the redemption and liquidation of all equity securities,
EITF D-98 provides that if a security is subject to any event that could trigger a redemption and
that event is not solely within the control of the Company, regardless of its probability, then the
preferred stock is to be classified outside of permanent equity. Radical Holdings LP controls over
50% of the voting securities of the Company since the Series A Convertible Preferred Stock and
Series B Convertible Preferred Stock held by Radical Holdings LP can vote on all matters in which
the common stockholders are required or permitted to vote. Therefore, Radical Holdings LP would be
able to control a vote to redeem the Series B Convertible Preferred Stock if such a measure were
brought to a vote of stockholders and, thus, the Series B Convertible Preferred Stock could be
redeemable at the option of the holder and any redemption event would be outside the control of the
issuer.
9
IMMEDIATEK, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 2008
(Unaudited)
NOTE 4 RELATED PARTY TRANSACTIONS
Office Space: On February 28, 2008, we entered into a letter agreement amending our Sublease with
HDNet LLC, an affiliate of Radical Holdings LP, for our current office space. The letter agreement
extends the term of the Sublease until December 31, 2009. The rent is $900 per month, utilities
included. HDNet LLC leases this office space from Radical Computing, Inc., another affiliate of
Radical Holdings LP.
Consulting Agreement: On February 28, 2008, we entered into an Agreement for Project Staffing
Services with HDNet Fights, Inc., an affiliate of Radical Holdings LP. The Agreement for Project
Staffing Services provides that we will provide personnel, as independent contractors on an
hourly-fee basis, to perform computer software programming, system analysis, design, project
management, consulting, and education and training for HDNet Fights, Inc. Total revenue from this
agreement was $2,174 and $13,703 during the three and nine months ended September 30, 2008,
respectively. Amounts due to the Company from HD Net Fights, Inc. totaled $2,174 at September 30,
2008.
10
Item 2. Managements Discussion and Analysis of Financial Condition and Results of Operations
Overview
The following Managements Discussion and Analysis, or MD&A, is intended to aid the reader in
understanding us, our operations and our present business environment. MD&A is provided as a
supplement to, and should be read in conjunction with, our consolidated financial statements and
the notes accompanying those financial statements, which are included in this Quarterly Report on
Form 10-Q. MD&A includes the following sections:
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Recent Developments a description of important events that have recently
occurred. |
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Our Business a general description of our business, our objectives, our areas of
focus and the challenges and risks of our business. |
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Critical Accounting Policies and Estimates a discussion of accounting policies
that require critical judgments and estimates. |
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Operations Review an analysis of our consolidated results of operations for the
periods presented in this Quarterly Report on Form 10-Q. |
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Liquidity, Capital Resources and Financial Position an analysis of our cash
flows and debt and contractual obligations; and an overview of our financial
condition. |
Recent Developments
On July 18, 2008, the Company and Radical Holdings LP entered into a Securities Purchase
Agreement, or the Purchase Agreement. Subject to the terms and conditions of the Purchase
Agreement, the Company issued and sold, and Radical Holdings LP purchased, 69,726 shares of Series
B Convertible Preferred Stock of the Company for an aggregate purchase price of $500,000, or
$7.17092619 per share of Series B Convertible Preferred Stock. The shares of Series B Convertible
Preferred Stock are convertible into that aggregate number of full shares of Company common stock
representing at least 1.50809% of the total voting power of all outstanding shares of capital stock
of the Company, including outstanding common stock.
Our Business
General
Our principal executive offices are located at 320 South Walton, Dallas, Texas 75226, and our
telephone number at that address is (214) 744-8801.
Prior to October 1, 2007, Immediatek, through its wholly-owned, operating subsidiary,
DiscLive, recorded live content, such as concerts and conferences, and made the recorded content
available for delivery to attendees within fifteen minutes after the conclusion of a live event.
As of October 1, 2007, Immediatek ceased retail sales of DiscLive products in conjunction with
its decision not to further pursue that line of business. As previously disclosed, management
commenced an evaluation of the DiscLive business and its prospects in early August 2007. Based upon
this evaluation, it was determined that not pursuing this line of business was in the best interest
of Immediateks stockholders.
On August 29, 2007, Immediatek formed a wholly-owned subsidiary, IMKI Ventures, Inc. IMKI
Ventures acquired certain assets from a related party on August 31, 2007. The consideration paid
for the acquired assets was 60,514 shares of Immediatek common stock. Those acquired assets were
developed into our e-commerce product called RadicalBuy, which was launched in part on October 23,
2007. RadicalBuy is a new online marketplace, which, in addition to providing buyers and sellers
an online forum to buy and sell items, allows seller-approved third-parties to sell items on the
sellers behalf and earn a commission. Currently,
the RadicalBuy product may be accessed through the RadicalBuy website or through Facebook, MySpace,
a personal blog or other website by the use of a widget that is currently available from our
RadicalBuy website.
11
Using RadicalBuy, sellers can list an item and have it visible to all RadicalBuy users
instantly whether those users access RadicalBuy through our website or the RadicalBuy widget that
sellers can install on their Facebook, MySpace, blog or other website. RadicalBuy takes advantage
of social networks, such as Facebook and MySpace, to increase the likelihood that an item will be
sold based on the premise that a buyer might be more comfortable buying something from a seller
located in their own circle of friends instead of a stranger using other classified advertising
avenues.
After an item is listed, others can post the listing on their RadicalBuy account to earn a
commission. The amount of commission paid is at the discretion of the seller. If a user has
nothing to sell, RadicalBuy allows all users to list other users items to earn commission. Users
can leave feedback about sellers and buyers, and read others comments before buying or selling
anything on the RadicalBuy platform.
RadicalBuy does not currently charge a fee for listing items for sale; it only charges a
commission-based fee upon the sale of items that are listed. The final value selling fee is based
on a tiered platform. The fee schedule is 5% of the first $25 in value, plus 3% of the value from
$25-1000, plus 1.5% of the value over $1000. The maximum final selling value fee is $500 per item.
History of Operating Losses
The following tables present our net loss and cash used in operating activities for the
periods indicated.
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For the Three Months Ended |
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September 30, |
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2008 |
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2007 |
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(unaudited) |
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(unaudited) |
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Net loss |
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$ |
(218,496 |
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$ |
(112,215 |
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Net cash used in operating activities |
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$ |
(182,737 |
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$ |
(108,554 |
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For the Nine Months Ended |
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September 30, |
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2008 |
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2007 |
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(unaudited) |
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(unaudited) |
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Net loss |
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$ |
(714,106 |
) |
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$ |
(2,037,422 |
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Net cash used in operating activities |
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$ |
(680,133 |
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$ |
(298,855 |
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Our existence and operations are dependent upon our ability to generate sufficient funds from
operations to fund operating activities.
The report of our independent registered public accounting firm on our financial statements
for the year ended December 31, 2007 includes an emphasis paragraph, in addition to their audit
opinion, stating that our recurring losses from operations and substantial accumulated deficit
raise substantial doubt about our ability to continue as a going concern. The financial statements
do not include any adjustments to reflect the possible effects on recoverability and classification
of assets or the amounts and classification of liabilities that may result from our inability to
continue as a going concern.
We funded our operations during the nine months ended September 30, 2008, primarily from the
proceeds generated by the sale of the Series A and Series B Convertible Preferred Stock in 2006 and
2008.
12
Our Objectives
At this time, our primary objectives are to successfully launch the other planned applications
and features we have for RadicalBuy and grow its user base and transaction volume.
Areas of Focus
RadicalBuy Successful Roll-Out and Improvements. Our current primary focus is launching the
other planned aspects of RadicalBuy, which includes additional features for the website and other
revenue generating features. We are attempting to create a website that is a full-service online
marketplace. We have launched several features for our website, including a widget that enables
sellers to list items across various internet platforms such as their Facebook page, MySpace page,
blog or webpage. In tandem with the roll-out of the website and additional features, we will
continue to focus on refining and improving the applications previously launched.
RadicalBuy Increase Users and Transactions. We also are focusing on increasing the number
of users of RadicalBuy and the number of items listed for sale through it. In that respect, we may
offer promotions to new and existing users to list their items for sale through RadicalBuy.
Acquisitions. We may also identify and pursue additional potential acquisition candidates. No
assurances can be given, however, that we will be successful in identifying any potential targets
and, when identified, consummating their acquisition.
Challenges and Risks
Operating in this area provides unique opportunities; however, challenges and risks accompany
those opportunities. Our management has identified the following material challenges and risks that
will require substantive attention from our management (see Liquidity and Capital Resources and
Financial PositionLiquidity beginning on page 20).
Utilizing Funds on Hand in a Manner that is Accretive. If we do not manage our assets
aggressively and apply the available capital judicially, we may not generate sufficient cash from
our operating activities to fund our operations going forward, which would require us to seek
additional funding in the future.
Dependence on Third-Party Platforms. Currently, RadicalBuy is highly dependent on the Facebook
platform. Any change or issues related to that platform will likely affect us, as well. We are
constantly monitoring that platform in order to be able to plan and take appropriate actions in the
event that we are affected.
Growing Users and Listed Items. In order to be successful with the RadicalBuy application, we
will be required to grow the number of users and items listed for sale. In addition, we will need
to ensure that the users are actively utilizing the application and transactions are occurring. We
are considering the use of incentives or promotions to attract users and transactions.
Competition. There are companies in this industry that have far more financial resources and a
larger market share than us. In order to compete with these companies, we will be required to be
innovative and create more attractive functions and features.
Additionally, see Risk Factors in the Companys Annual Report on Form 10-KSB for the fiscal
year ended December 31, 2007, which was filed with the SEC on March 28, 2008.
Challenges and risks, including those described above, if not properly addressed or managed,
may have a material adverse effect on our business. Our management, however, is endeavoring to
properly manage and address these challenges and risks.
13
Critical Accounting Policies and Estimates
Our condensed consolidated financial statements are prepared in accordance with generally
accepted accounting principles in the United States of America, which requires management to make
estimates, judgments and assumptions with respect to the amounts reported in the condensed
consolidated financial statements and in the notes accompanying those financial statements. Certain
information and footnote disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles, however, have been condensed or omitted
pursuant to the rules and regulations promulgated by the SEC. We believe that the most critical
accounting policies and estimates relate to the following:
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Recoverability of Long-Lived Assets. We have certain non-current assets. Management
considers the useful life of the assets on an annual basis, or more periodically as
circumstances dictate, and assesses whether or not there is an impairment. An
assessment of recoverability involves comparing the carrying value of the asset with
its recoverable amount, typically the estimated future cash flows expected to result
from the use of the assets, including cash flows from disposition. If the expected
cash flows from a non-current asset were determined to be less than its carrying
value, an impairment would be charged to the income statement. During the three months
and nine months ended September 30, 2008, there was no impairment of long-lived
assets. |
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Convertible Securities. From time to time, we have issued, and in the future may
issue, convertible securities with beneficial conversion features. We account for
these convertible securities in accordance with Emerging Issues Task Force, or EITF,
Issue No. 98-5, Accounting for Convertible Securities with Beneficial Conversion
Features or Contingently Adjustable Conversion Ratios (EITF 98-5) and EITF 00-27,
Application of Issue No. 98-5 to Certain Convertible Instruments. |
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Revenue Recognition. With respect to RadicalBuy, revenues are recognized when
evidence of an arrangement exists, the fee is fixed and determinable, no significant
obligation remains and collection of the receivable is reasonably assured. RadicalBuy
generates transaction revenues from final value and feature fees. Feature fee revenues
are recognized ratably over the estimated period of the feature, while revenues
related to final value fees are recognized at the time that the transaction is
successfully concluded. A transaction is considered successfully concluded when at
least one buyer has offered to purchase the item. To date, minimal revenues have been
generated from RadicalBuy. |
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DiscLive primarily delivered products sold by it through shipment to the customer.
Revenue was recognized upon shipment of the product to the customer. A smaller
percentage of revenues were recognized at the point of sale at the event being
recorded. Certain customers purchased and accepted hand delivery of the product
on-site at the event. |
While our estimates and assumptions are based upon our knowledge of current events and actions we
may undertake in the future, actual results may ultimately differ from those estimates and
assumptions. For a discussion of our significant accounting policies, see Note 1 Description of
Business and Summary of Significant Accounting Policies commencing on page 5.
Recent Accounting Standards and Pronouncements
Refer to Note 1 Description of Business and Summary of Significant Accounting Policies
accompanying the consolidated financial statements commencing on page 5 for a discussion of recent
accounting standards and pronouncements.
14
Operations Review
The Three Months Ended September 30, 2008 Compared to the Three Months
Ended September 30, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended |
|
|
|
|
|
|
September 30, |
|
|
|
|
|
|
2008 |
|
|
2007 |
|
|
2008 vs 2007 |
|
|
|
(unaudited) |
|
|
(unaudited) |
|
|
Change |
|
|
% Change |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues |
|
$ |
82 |
|
|
$ |
2,610 |
|
|
$ |
(2,528 |
) |
|
|
(97) |
% |
Cost of revenues |
|
|
|
|
|
|
1,510 |
|
|
|
(1,510 |
) |
|
|
(100 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross (loss) margin |
|
|
82 |
|
|
|
1,100 |
|
|
|
(1,018 |
) |
|
|
(93 |
) |
Gross (loss) margin percentage |
|
|
100 |
% |
|
|
42 |
% |
|
|
|
|
|
|
|
|
General and administrative expenses |
|
|
9,160 |
|
|
|
7,204 |
|
|
|
1,956 |
|
|
|
27 |
|
Consulting services |
|
|
8,406 |
|
|
|
1,738 |
|
|
|
6,668 |
|
|
|
384 |
|
Consulting
services related party |
|
|
|
|
|
|
40,108 |
|
|
|
(40,108 |
) |
|
|
(100 |
) |
Professional fees |
|
|
27,915 |
|
|
|
45,463 |
|
|
|
(17,548 |
) |
|
|
(39 |
) |
Salaries and benefits |
|
|
158,285 |
|
|
|
6,214 |
|
|
|
152,071 |
|
|
|
2,447 |
|
Non-cash consulting expense related party |
|
|
10,500 |
|
|
|
10,500 |
|
|
|
|
|
|
|
|
|
Depreciation and amortization |
|
|
6,979 |
|
|
|
8,594 |
|
|
|
(1,615 |
) |
|
|
(19 |
) |
(Gain) loss on sale of assets held for sale |
|
|
378 |
|
|
|
(221 |
) |
|
|
599 |
|
|
|
(271 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total expenses |
|
|
221,623 |
|
|
|
119,600 |
|
|
|
102,023 |
|
|
|
85 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net operating loss |
|
|
(221,541 |
) |
|
|
(118,500 |
) |
|
|
(103,041 |
) |
|
|
(87 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other income related party |
|
|
2,174 |
|
|
|
|
|
|
|
2,174 |
|
|
|
100 |
|
Interest income |
|
|
871 |
|
|
|
6,285 |
|
|
|
(5,414 |
) |
|
|
(86 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(218,496 |
) |
|
$ |
(112,215 |
) |
|
$ |
(106,281 |
) |
|
|
(95) |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deemed dividend related to beneficial conversion
feature on Series B convertible preferred stock |
|
|
(205,145 |
) |
|
|
|
|
|
|
(205,145 |
) |
|
|
(100 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss attributable to common stockholders |
|
$ |
(423,641 |
) |
|
$ |
(112,215 |
) |
|
$ |
(311,426 |
) |
|
|
(278) |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of common shares
outstanding basic and fully diluted |
|
|
535,321 |
|
|
|
494,540 |
|
|
|
40,781 |
|
|
|
8 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted loss per common share |
|
$ |
(0.79 |
) |
|
$ |
(0.23 |
) |
|
$ |
(0.56 |
) |
|
|
(243) |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues. The decrease in revenues is attributable to the discontinuation of the DiscLive
business. No live events were recorded and there were no product sales, during the three months
ended September 30, 2008. As of September 30, 2008, revenues generated from RadicalBuy have been
minimal.
We expect revenues for the remainder of 2008 to increase as we continue to implement
RadicalBuy and attract users. Since RadicalBuy is a new line of business, revenues are difficult
to anticipate until we achieve a consistent user base. We are actively working on additions and
improvements to RadicalBuy that should result in increased users and, consequently, increased sales
through the RadicalBuy application. No assurances, however, can be given that we will be able to
attract a significant number of additional users or sales.
Cost of Revenues. Costs of revenues decreased due to the discontinuation of DiscLive
operations. We anticipate that costs of revenues will increase proportionately with revenues in
regards to RadicalBuy. Cost of revenues consists principally of merchant fees, which we believe
will initially increase proportionately with revenue.
General and Administrative Expense. General and administrative expense increased for the
three month period ended September 30, 2008, as compared to the three month period ended September
30, 2007. The difference was a result of increased webhosting expenses and supplies purchased in
support of the RadicalBuy application.
15
Consulting Services. Costs for consulting services increased during the three month period
ended September 30, 2008 as compared to the three month period ended September 30, 2007, due to the
retention of an outside consultant related to the launch of a feature on our website. Related
party consulting services decreased compared to the same period last year because for the three
month period ended September 30, 2007 part-time services provided by Darin Divinia and certain
other current employees of the Company were provided pursuant to a consulting agreement with a
related party entity. Because these individuals are now direct, full time employees of the
Company, these related party consulting service costs are no longer incurred by the Company.
However, salary and benefit expenses have increased compared to the same period in 2007 due to the
employment of these individuals.
Professional Fees. The decrease in professional fees for the three month period ended
September 30, 2008 as compared to the three month period ended September 30, 2007, is attributable
to legal fees incurred in 2007 in connection with resolving certain legal disputes.
Salaries and Benefits. The increase in salaries and benefits expense for the three month
period ended September 30, 2008, as compared to the three month period ended September 30, 2007, is
attributable to the employment of Darin Divinia, Steve Watkins and Adam Greenspan in January of
2008.
Other Income Related Party. On February 28, 2008, we entered into an Agreement for Project
Staffing Services with HDNet Fights, Inc., an affiliate of Radical Holdings LP. The Agreement for
Project Staffing Services provides that we will provide personnel, as independent contractors on an
hourly-fee basis, to perform computer software programming, system analysis, design, project
management, consulting, and education and training for HDNet Fights, Inc. For the three month
period ended September 30, 2008, we earned $2,174 under this agreement.
Interest Income. Interest income decreased during the three months ended September 30, 2008,
as compared to the same period in 2007, due to decreased cash balances.
Deemed Dividend Related to Beneficial Conversion Feature on Series B Convertible Preferred
Stock. Immediatek issued 69,729 shares of its Series B Convertible Preferred Stock at $7.17092619
per share to Radical Holdings LP for cash proceeds of $500,000. The beneficial conversion feature
represents the difference between the fair market value of Immediatek common stock and the
conversion price on the date of issuance of the Series B Convertible Preferred Stock, multiplied by
the number of shares of common stock that would be received upon conversion. We recorded a deemed
dividend due to the beneficial conversion price of $205,145, which represents the lesser of the
proceeds or the beneficial conversion feature of $205,145.
16
The
Nine Months Ended September 30, 2008 Compared to the Nine
Months
Ended September 30, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Nine Months Ended |
|
|
|
|
|
|
September 30, |
|
|
|
|
|
|
2008 |
|
|
2007 |
|
|
2008 vs. 2007 |
|
|
|
(unaudited) |
|
|
(unaudited) |
|
|
Change |
|
|
% Change |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues |
|
$ |
619 |
|
|
$ |
21,167 |
|
|
$ |
(20,548 |
) |
|
|
(97) |
% |
Cost of revenues |
|
|
|
|
|
|
21,661 |
|
|
|
(21,661 |
) |
|
|
(100 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross (loss) margin |
|
|
619 |
|
|
|
(494 |
) |
|
|
1,113 |
|
|
|
225 |
|
Gross (loss) margin percentage |
|
|
|
% |
|
|
(2) |
% |
|
|
|
|
|
|
|
|
General and administrative expenses |
|
|
40,287 |
|
|
|
24,114 |
|
|
|
16,173 |
|
|
|
67 |
|
Consulting services |
|
|
23,738 |
|
|
|
6,064 |
|
|
|
17,674 |
|
|
|
291 |
|
Consulting services related party |
|
|
|
|
|
|
40,108 |
|
|
|
(40,108 |
) |
|
|
(100 |
) |
Professional fees |
|
|
142,372 |
|
|
|
142,160 |
|
|
|
212 |
|
|
|
0 |
|
Salaries and benefits |
|
|
473,548 |
|
|
|
109,238 |
|
|
|
364,310 |
|
|
|
334 |
|
Non-cash consulting expense related party |
|
|
31,500 |
|
|
|
31,500 |
|
|
|
|
|
|
|
|
|
Depreciation and amortization |
|
|
21,222 |
|
|
|
33,332 |
|
|
|
(12,110 |
) |
|
|
(36 |
) |
(Gain) loss on sale of assets held for sale |
|
|
(309 |
) |
|
|
2,950 |
|
|
|
(3,259 |
) |
|
|
(110 |
) |
Change in estimate of payroll tax liability |
|
|
|
|
|
|
(159,994 |
) |
|
|
159,994 |
|
|
|
(100 |
) |
Impairment of goodwill and intangibles |
|
|
|
|
|
|
1,792,570 |
|
|
|
(1,792,570 |
) |
|
|
(100 |
) |
Impairment of fixed assets |
|
|
|
|
|
|
20,324 |
|
|
|
(20,324 |
) |
|
|
(100 |
) |
Settlement of dispute |
|
|
|
|
|
|
22,000 |
|
|
|
(22,000 |
) |
|
|
(100 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total expenses |
|
|
732,358 |
|
|
|
2,064,366 |
|
|
|
(1,332,008 |
) |
|
|
(65 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net operating loss |
|
|
(731,739 |
) |
|
|
(2,064,860 |
) |
|
|
1,333,121 |
|
|
|
(65 |
) |
Other income related party |
|
|
13,703 |
|
|
|
5,839 |
|
|
|
7,864 |
|
|
|
135 |
|
Interest income |
|
|
3,930 |
|
|
|
21,599 |
|
|
|
(17,669 |
) |
|
|
(82 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(714,106 |
) |
|
$ |
(2,037,422 |
) |
|
$ |
1,323,316 |
|
|
|
(65) |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deemed dividend related to beneficial conversion
feature on Series B convertible preferred
stock |
|
|
(205,145 |
) |
|
|
|
|
|
|
(205,145 |
) |
|
|
(100 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss attributable to common stockholders |
|
$ |
(919,251 |
) |
|
$ |
(2,037,422 |
) |
|
$ |
1,118,171 |
|
|
|
(55) |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of common shares
outstanding basic and fully diluted |
|
|
535,321 |
|
|
|
481,457 |
|
|
|
53,864 |
|
|
|
11 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted loss per common share |
|
$ |
(1.72 |
) |
|
$ |
(4.23 |
) |
|
$ |
2.51 |
|
|
|
59 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues. The decrease in revenues is attributable to the discontinuation of the DiscLive
business. No live events were recorded and there were no product sales, during the nine months
ended September 30, 2008. As of September 30, 2008, revenues generated from RadicalBuy have been
minimal.
We expect revenues for the remainder of 2008 to increase as we continue to implement
RadicalBuy and attract users. Since RadicalBuy is a new line of business, revenues are difficult
to anticipate until we achieve a consistent user base. We are actively working on additions and
improvements to RadicalBuy that should result in increased users and, consequently, increased sales
through the RadicalBuy application. No assurances, however, can be given that we will be able to
attract a significant number of additional users or sales.
Cost of Revenues. Costs of revenues decreased due to the discontinuation of DiscLive
operations. We anticipate that costs of revenues will increase proportionately with revenues in
regards to RadicalBuy. Cost of revenues consists principally of merchant fees, which we believe
will initially increase proportionately with revenue.
General and Administrative Expense. General and administrative expense increased for the nine
month period ended September 30, 2008, as compared to the nine month period ended September 30,
2007. The difference was a result of increased advertising expenses, increased webhosting expenses
and supplies purchased in support of the RadicalBuy application.
17
Consulting Services. Costs for consulting services increased during the nine month period
ended September 30, 2008 as compared to the nine month period ended September 30, 2007, due to the
retention of an outside consultant related to the launch of a feature on our website. Related
party consulting services decreased compared to the same period in 2007 because for the nine month
period ended September 30, 2007 part-time services provided by Darin Divinia and certain other
current employees of the Company were provided pursuant to a consulting agreement with a related
party entity. Because these individuals are now direct, full time employees of the Company, these
related party consulting service costs are no longer incurred by the Company. However, salary and
benefit expenses have increased compared to the same period in 2007 due to the employment of these
individuals.
Professional Fees. The increase in professional fees for the nine month period ended
September 30, 2008 as compared to the nine month period ended September 30, 2007, is attributable
to higher professional fees incurred in connection with increases in audit fees, legal fees and
other professional fees as we attempt to expand our operations. This increase was offset, in part,
by legal fees incurred in connection with resolving certain legal disputes in 2007.
Salaries and Benefits. The increase in salaries and benefits expense for the nine month
period ended September 30, 2008, as compared to the nine month period ended September 30, 2007, is
attributable to the employment of Darin Divinia, Steve Watkins and Adam Greenspan in January of
2008.
Other Income Related Party. On February 28, 2008, we entered into an Agreement for Project
Staffing Services with HDNet Fights, Inc., an affiliate of Radical Holdings LP. The Agreement for
Project Staffing Services provides that we will provide personnel, as independent contractors on an
hourly-fee basis, to perform computer software programming, system analysis, design, project
management, consulting, and education and training for HDNet Fights, Inc. For the nine month
period ended September 30, 2008, we earned $13,703 under this agreement.
For the nine month period ended September 30, 2007, other income was derived from the Services
Agreement between DiscLive and HDNet LLC. The Services Agreement provided that the Chief Executive
Officer of DiscLive, Travis Hill, would assist HDNet LLC with sales and content acquisition. In
exchange for those services, HDNet LLC paid DiscLive $3,950 per month (prorated on a daily basis
for any partial month). In light of the resignation of Mr. Hill, DiscLive and HDNet LLC mutually
decided to terminate the Services Agreement. Accordingly, no additional other income was realized
pursuant to this agreement after June 5, 2007, the date on which the Services Agreement was
terminated.
Interest Income. Interest income decreased during the nine months ended September 30, 2008,
as compared to the same period in 2007, due to decreased cash balances.
Deemed Dividend Related to Beneficial Conversion Feature on Series B Convertible Preferred
Stock. Immediatek issued 69,729 shares of its Series B Convertible Preferred Stock at $7.17092619
per share to Radical Holdings LP for cash proceeds of $500,000. The beneficial conversion feature
represents the difference between the fair market value of Immediatek common stock and the
conversion price on the date of issuance of the Series B Convertible Preferred Stock, multiplied by
the number of shares of common stock that would be received upon conversion. We recorded a deemed
dividend due to the beneficial conversion price of $205,145, which represents the lesser of the
proceeds or the beneficial conversion feature of $205,145.
18
Liquidity and Capital Resources and Financial Position
General
As of September 30, 2008, we had $410,666 of operating funds. On July 18, 2008, the Company
and Radical Holdings LP entered into a Securities Purchase Agreement (the Purchase Agreement).
Subject to the terms and conditions of the Purchase Agreement, the Company issued and sold, and
Radical Holdings LP purchased, 69,726 shares of Series B Convertible Preferred Stock of the Company
for an aggregate purchase price of $500,000, or $7.17092619 per share of Series B Convertible
Preferred Stock. As a result of this sale, we currently anticipate that our available funds and
expected cash flows from operations will be sufficient to meet our cash needs for 2008. We will
require additional financing to continue operations in 2009. If substantial growth in our revenues
does not occur, we may not be able to achieve or maintain profitability in the future. The amount
of losses we will incur before achieving profitability, and the time required to reach
profitability, are each highly uncertain. No assurances can be given that we will ever achieve
profitability. We expect to continue to experience operating losses. Our ability to obtain
financing will depend, among other things, on our development efforts, business plans, operating
performance and condition of the capital markets at the time we seek financing. No assurances can
be given that additional financing will be available to us on favorable terms when required, or at
all. If we raise additional funds through the issuance of equity, equity-linked or debt
securities, those securities may have rights, preferences or privileges senior to the rights of our
common stock, and our stockholders may experience dilution.
On October 1, 2007, we ceased retail sales of the DiscLive product after a comprehensive
evaluation of the DiscLive business. On October 23, 2007, however, we launched RadicalBuy, a new
online marketplace, and will direct our funds available to the operation and growth of that
business. Our goal is to grow the use of RadicalBuy, which we expect will generate revenue to
support our operations. We intend to continue to improve and expand our website and roll-out other
features to support its growth. No assurances, however, can be given that this line of business
will generate sufficient operating funds to support our operating activities.
We may also pursue various acquisition targets that could provide us with operating funds to
support our activities. In the event that we acquire a target, depending on the nature of that
target, we may require additional funds to consummate the acquisition or support our operations
going forward. No assurances, however, can be given that we will be able to identify a potential
target, consummate the acquisition of the target and, if consummated, integrate the target company
and realize funds from operations.
Operating Activities. Cash used in operations was $680,133 in the nine months ended September 30,
2008, as compared to $298,855 for the nine months ended September 30, 2007. The increase is
primarily due to salaries and benefits expense attributable to the employment of Darin Divinia,
Steve Watkins and Adam Greenspan in January of 2008.
Investing Activities. Cash provided by investing activities for the nine months ended September
30, 2008 was $1,012, as compared to $3,549 used in investing activities for the nine months ended
September 30, 2007.
Financing Activities. On July 18, 2008, the Company and Radical Holdings LP entered into a
Securities Purchase Agreement, or the Purchase Agreement. Subject to the terms and conditions of
the Purchase Agreement, the Company agreed to adopt and file a Certificate of Designation, Rights
and Preferences establishing the Series B Convertible Preferred Stock and issued and sold, and
Radical Holdings LP purchased, 69,726 shares of Series B Convertible Preferred Stock of the Company
for an aggregate purchase price of $500,000, or $7.17092619 per share of Series B Convertible
Preferred Stock. The shares of Series B Convertible Preferred Stock are convertible into that
aggregate number of full shares of Company common stock representing at least 1.50809% of the total
voting power of all outstanding shares of capital stock of the Company, including outstanding
common stock.
19
Indebtedness
At September 30, 2008, we did not have any outstanding indebtedness for borrowed money.
Contractual Obligations and Commercial Commitments
The following table highlights, as of September 30, 2008, our contractual obligations and
commitments by type and period:
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|
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|
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|
|
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|
Payments due by period |
|
Contractual Obligations |
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Total |
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Less than 1 year |
|
|
1-3 years |
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|
|
|
|
|
|
|
|
|
|
|
|
|
Sublease (a) |
|
$ |
13,500 |
|
|
$ |
10,800 |
|
|
$ |
2,700 |
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|
|
|
|
|
|
|
|
|
Total: |
|
$ |
13,500 |
|
|
$ |
10,800 |
|
|
$ |
2,700 |
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|
|
|
|
|
|
|
|
|
|
(a) |
|
On February 21, 2007, we entered into a Sublease with HDNet LLC for $900 per month,
utilities included, that commenced on March 1, 2007. This sublease was renewed in
February 2008 and expires December 31, 2009. |
Liquidity
We currently believe that the funds received from the consummation of the issuance and sale of
the Series B Convertible Preferred Stock on July 18, 2008, will provide us with the necessary funds
to operate our business until the end of 2008. Because our main line of business, RadicalBuy, has
a short operating history, we anticipate that our operating activities will not generate a material
amount of cash in the near term. While we are undertaking various plans and measures, which we
believe will increase funds generated from operating activities, no assurances can be given that
those plans and measures will be successful in increasing funds generated from operating
activities. Accordingly, we anticipate that we will be required to seek additional funds at the
end of 2008 to fund our future operating activities.
Item 3. Quantitative and Qualitative Disclosures about Market Risk
Our excess cash and cash equivalents consist principally of amounts held in demand deposit
accounts and amounts invested in financial instruments with initial maturities of three months or
less at the time of purchase. The Company places its temporary cash investments with quality
financial institutions. At times, such investments may be in excess of the Federal Deposit
Insurance Corporation insurance limit. The Company does not believe that it is exposed to any
significant credit risk on cash. We do not have any direct investments in auction-rate securities
or securities that are collateralized by assets that include mortgages or subprime debt. If a 10
percent change in interest rates were to have occurred on September 30, 2008, this change would not
have had a material effect on the fair value of our cash and cash equivalents as of that date.
Item 4T. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
Our chief executive officer and president (our Principal Executive Officer and Principal
Financial Officer) is responsible for establishing and maintaining disclosure controls and
procedures (as defined in Rules 13a-15(e) and 15d-15(e) promulgated under the Securities Exchange
Act of 1934) for us. Our existing disclosure controls and procedures were designed and implemented
prior to the appointment of our current chief executive officer and president. We regularly
evaluate the effectiveness of our disclosure controls and procedures and report our conclusions
about the effectiveness of the disclosure controls and procedures quarterly on our Quarterly
Reports on Forms 10-Q and annually on our Annual Reports on Forms 10-K. Factors that our chief
executive officer and president reviewed and analyzed are as follows:
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the timeliness of the disclosures made by us since the change in control of us and
retention of new management personnel; |
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|
the effectiveness of our disclosure policy, which encourages open and timely
disclosure of material events, and the procedures established to implement that
policy; |
20
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the limited number of people within our organization, which provides for detail
knowledge of our activities and issues, and the amount and pattern of communications
among them; |
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the tone established for compliance with all disclosure requirements within our
organization; |
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|
all constructive comments received from, or suggested by, legal counsel and
investors concerning our disclosures and activities have been timely and adequately
addressed; |
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management has addressed all disclosure issues encountered during the most recent
year; and |
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our Code of Business Conduct and Ethics provides methods to report violations of
our disclosure policies. |
The effectiveness of our disclosure controls and procedures also was considered in light of
the prior conclusion that we had ineffective internal controls over financial reporting, which
conclusion was based in large part upon the restatement of our financial statements for the period
ended September 30, 2006 and our limited number of personnel (see Managements Annual Report on
Internal Control Over Financial Reporting contained in our Annual Report on Form 10-KSB for the
fiscal year ended December 31, 2007, which was filed with the SEC on March 28, 2008). The chief
executive officer and president considered the underlying reasons for the restatement, which were
different interpretations of certain provisions of several complex accounting policies, including
push-down accounting. In addition, we have a limited number of personnel within our
organization, which we believe prevents us from meeting the criteria set forth by forth by the
Committee of Sponsoring Organizations of the Treadway Commission (COSO). Nevertheless, based upon
a number of factors, including the revisions to our previously issued financial statements, our
plan for remediation (as described below) and other procedures designed to assist us in ensuring
the reliability of our financial statements, our management believes that the consolidated
financial statements included in this Quarterly Report on Form 10-Q fairly state, in all material
respects, our financial condition, results of operations and cash flows for the periods presented
in conformity with generally accepted accounting principles in the United States of America.
Based upon the evaluation for the period ended September 30, 2008, including the factors and
matters described immediately above, our chief executive officer and president concluded that our
disclosure controls and procedures were effective, as of the end of the period covered by this
Quarterly Report on Form 10-Q (September 30, 2008), in ensuring that material information relating
to us required to be disclosed by us in reports that we file or submit under the Securities
Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods
specified in the SECs rules and forms and that such information is accumulated and communicated to
management, including the chief executive officer and the president, as appropriate, to allow
timely decisions regarding required disclosure.
Plan for Remediation of Material Weaknesses
As a result of our conclusion that our internal control over financial reporting was
ineffective, during 2007, we retained an outside consulting firm to assist us in reviewing our
internal controls and to assist in designing and implementing effective controls. Working with
this consultant, we have identified several key challenges facing the Company:
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limited resources dedicated to internal control compliance and little or no
internal expertise or experience; |
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maintaining Company focus on risk and control; |
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our ability to rely on monitoring (e.g. direct entity level) controls; |
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properly leveraging high impact controls and optimizing the compliance process to
achieve proper balance between costs and benefits; and |
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ensuring knowledge transfer takes place, ensuring sustainability and efficiency in
future years. |
21
Based on information received from our consultant, we are drafting policies and procedures
that we believe will, once implemented, substantially improve our internal control over financial
reporting.
Changes in Internal Controls
There were no changes in our internal controls during the last fiscal quarter that materially
affected, or are reasonably likely to materially affect, our internal control over financial
reporting; however, changes in our internal controls are currently being designed and will be
implemented on an ongoing basis as designed.
Limitations on the Effectiveness of Controls
Our management, including our chief executive officer and president, does not expect that our
disclosure controls and internal controls will prevent all error and all fraud. Any control system,
no matter how well conceived and operated, can provide only reasonable, not absolute, assurance
that the objectives of the control system are met. Further, the design of a control system must
reflect the fact that there are resource constraints, and the benefits of controls must be
considered relative to their costs. Due to the inherent limitations in all control systems, no
evaluation of controls can provide absolute assurance that all control issues and instances of
fraud, if any, within our Company have been detected. These inherent limitations include the
realities that judgments in decision making can be faulty, and that breakdowns can occur because of
simple error or mistake. Additionally, controls can be circumvented by the individual acts of some
persons, by collusion of two or more people, or by management override of the control.
The design of any system of controls also is based in part upon certain assumptions about the
likelihood of future events occurring. There can be no assurance that any design will succeed in
achieving its stated goals under all potential future conditions; over time, a control may become
inadequate because of changes in conditions, or the degree of compliance with the policies or
procedures may deteriorate. Due to the inherent limitations in a cost-effective control system,
misstatements due to error or fraud may occur and not be detected.
22
PART II OTHER INFORMATION
Item 6. Exhibits.
The following exhibits are filed in accordance with the provisions of Item 601 of Regulation
S-K.
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Exhibit |
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Number |
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Description of Exhibit |
31.1
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Certification of Principal Executive Officer and Principal
Financial Officer pursuant to Rule 13a-14(a) of the Securities
Exchange Act. |
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32.1
|
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Certification Required by 18 U.S.C. Section 1350 (as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002). |
23
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant caused this report to
be signed on its behalf by the undersigned, thereunto duly authorized.
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Date: November 14, 2008 |
IMMEDIATEK, INC.,
a Nevada corporation
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By: |
/s/ DARIN DIVINIA
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Name: |
Darin Divinia |
|
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Title: |
Chief Executive Officer
(On behalf of the
Registrant and as Principal
Executive Officer) |
|
S-1
INDEX TO EXHIBITS
|
|
|
Exhibit |
|
|
Number |
|
Description of Exhibit |
31.1
|
|
Certification of Principal Executive Officer and Principal
Financial Officer pursuant to Rule 13a-14(a) of the Securities
Exchange Act. |
|
|
|
32.1
|
|
Certification Required by 18 U.S.C. Section 1350 (as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002). |
Exhibit Index