Exhibit
10.1


 


NEITHER THIS NOTE NOR THE
SECURITIES INTO WHICH THIS NOTE IS CONVERTIBLE HAVE BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS.


 


MMA
MEDIA INC.


 


Amended
and Restated Senior Secured Convertible Promissory Note


 


Dated
as of January 9, 2008


 


This amended and restated senior secured convertible
promissory note (the “Note”) is
issued by MMA MEDIA INC., a Delaware corporation
(the “Company”), to Tapirdo
Enterprises, LLC, a California limited liability company and its
successors and assigns (the “Holder”), as
the assignee of the Original Note (as defined below), pursuant to a Securities
Purchase Agreement, dated as of January 7, 2008, by and between Jared Kaban (“Kaban”) and the Holder, whereby, among other things, Kaban
assigned the Original Note to the Holder.


 


This Note amends, restates and replaces in
its entirety the original senior secured convertible promissory note dated as
of August 27, 2007 (together, the “Original Note”)
in the principal amount of $250,000 (the “Loan”), which
was issued to Kaban pursuant to a Securities Purchase Agreement, dated as of
August 27, 2007, by and between the Company and Kaban (the “Purchase Agreement”).


 


FOR VALUE RECEIVED, the Company
hereby promises to repay the Loan in accordance with the provisions hereof.


 


1.             Definitions.


 


In addition to the terms defined elsewhere in
this Note: (a) capitalized terms that are not otherwise defined herein have the
meanings given to such terms in the Purchase Agreement; and (b) the following
terms have the meanings indicated:


 


(a)                  “Bankruptcy
Event” means any of the following events: (i) the Company commences
a case or other proceeding under any bankruptcy, reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency or liquidation
or similar law of any jurisdiction relating to the Company; (ii) there is
commenced against the Company any such case or proceeding that is not 


 

















 


 


dismissed
within 60 days after commencement; (iii) the Company is adjudicated insolvent
or bankrupt or any order of relief or other order approving any such case or
proceeding is entered; (iv) the Company suffers any appointment of any
custodian or the like for it or any substantial part of its property that is
not discharged or stayed within 60 days; or (v) the Company makes a general
assignment for the benefit of creditors.


 


(b)                 “Business Day”
means any day except Saturday, Sunday and any day which shall be a federal
legal holiday or a day on which banking institutions in the State of California
are authorized or required by law or other governmental action to close.


 


(c)                  “Common Stock”
means the common stock of the Company, par value $0.001 per share, and any
securities into which such common stock may hereafter be reclassified.


 


2.             Issuance of Common Stock;
Adjustments.


 


(a)                  In exchange for the Loan,
the Company shall, upon demand by the Holder, issue to the Holder 30,000,000
newly issued, restricted shares of Common Stock in full satisfaction of the
repayment of the Loan.  The Common Stock
shall be issued to the Holder within three Business Days of the Holder’s
written demand to the Company for the repayment of the Loan in accordance with
the notice provisions set forth in Section 4 of this Note.


 


(b)                 In the event the Company
should at any time or from time to time after the date hereof fix a record date
for the effectuation of a split or subdivision of the outstanding shares of
Common Stock, declare a dividend or other distribution payable in additional
shares of Common Stock or other securities or rights convertible into, or
entitling the holder thereof to receive, directly or indirectly, additional
shares of Common Stock (hereinafter referred to as “Common Stock
Equivalents”), combine its outstanding shares of Common Stock into a
lesser number of shares or issue by reclassification of its shares of Common
Stock any shares of its capital stock, without payment of any consideration by
the holders of Common Stock or Common Stock Equivalents, then, as of such
record date (or the date of such dividend, distribution, split, subdivision,
combination or reclassification if no record date is fixed), the number of
shares of Common Stock issuable pursuant to this Note shall be adjusted in
proportion to such change in the number of outstanding shares of Common Stock.


 


3.             Events of Default.


 


(a)                  An “Event of
Default”, wherever used herein, means either of the following
events:


 


(i)                     any default in the repayment
of the Loan or other charges in respect of this Note, as and when the same
shall become due and payable (whether upon demand or otherwise);


 


 


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(ii)                  the occurrence of a
Bankruptcy Event; or


 


(iii)               the Company shall commit any
material breach or default of any material provision of this Note, the Purchase
Agreement, the Warrant Agreement or the Security Agreement, which is not cured
within the time prescribed herein or therein, if any.


 


(b)                 Upon an Event of Default,
the Holder may immediately and without expiration of any grace period enforce
any and all of its rights and remedies hereunder and all other remedies available
to it under applicable law.


 


4.             Notices.


 


Any notice, demand or request which may be
permitted, required or desired to be given in connection with herewith shall be
given in writing and directed to the parties hereto as follows:


 


	
  If to the Company,
  addressed as follows:

  	
   

  	
  MMA Media Inc.

  9440 Little Santa Monica Boulevard, Suite 401

  Beverly Hills, California 90210

  Attention: Michael Kurdziel

  Facsimile No.: 310-402-5937

  
	
   

  	
   

  	
   

  
	
  If to the Holder,
  addressed as follows:

  	
   

  	
  Tapirdo Enterprises, LLC

  9440 Little Santa Monica Boulevard, Suite 401

  Beverly Hills, California 90210

  Attention: Adam Roseman

  Facsimile No.: 310-402-5932

  



 


Notices shall be deemed properly delivered
and received when delivered to the primary notice party (without regard to the
copied parties) (i) if personally delivered, upon receipt or refusal to
accept delivery, (ii) if sent via facsimile, upon mechanical confirmation of
successful transmission thereof generated by the sending telecopy machine,
(iii) if sent by a commercial overnight courier for delivery on the next
business day, on the first business day after deposit with such courier service
(or the third business day if sent to an address not in the United States), or
(iv) if sent by registered or certified mail, five days after deposit thereof
in the U.S. mail.  Any party may change
its address for delivery of notices by properly notifying the others pursuant
to this Section 4.


 


5.             Security.


 


This Note is secured pursuant to the Security
Agreement of the Company dated as of August 27, 2007.


 


 


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6.             Registration Rights.


 


(a)                  Demand Registration.  The Holder of a majority of the shares of
Common Stock underlying this Note may request that the Company register, at the
Company’s expense (a “Demand Registration”),
the Common Stock underlying this Note, including any shares of Common Stock
issuable to the Holder pursuant to Sections 6(a)(i) and 6(a)(ii) of this Note
(collectively, the “Registrable Securities”),
pursuant to the Securities Act of 1933, as amended (the “Securities
Act”).  The Company shall file
a registration statement with the Securities and Exchange Commission (the “Commission”) covering the Registrable Securities (“Demand Registration Statement”) requested to be registered
pursuant to this Section 6(a) for an offering to be made on a continuous basis
pursuant to Rule 415 promulgated under the Securities Act on Form S-3 (or on
such other form appropriate for such purpose) within 30 days of the Company's
receipt of a Demand Registration.  The
Company shall cause such Demand Registration Statement to be declared effective
by the Commission within 120 days following the Company's receipt of the Demand
Registration.  A registration statement
will not count as a Demand Registration until it has become effective and
includes 100% of the Registrable Securities requested to be included in the
Demand Registration Statement.  The
Company shall maintain the effectiveness of the Demand Registration Statement
filed pursuant to this Section 6(a) until the earlier of (i) the date of sale
of all Registrable Securities or (ii) 24 months from the effective date of the
Demand Registration Statement.


 


(i)                     If the Demand Registration
Statement is not filed with the Commission within 30 days of the Company’s
receipt of a Demand Registration pursuant to Section 6(a), then the Company
shall, as additional consideration and not as a penalty, issue and deliver to
the Holder who has requested to have its Registrable Securities registered on
such 30th day, and every 30 days thereafter until such Demand Registration
Statement is filed with the Commission, a number of shares of Common Stock
equal to 1% of the number of shares of Common Stock into which this Note is
convertible pursuant to Section 2(a) (before any adjustment pursuant to Section
2(b) of this Note, such number of shares will be 300,000).


 


(ii)                  If the Demand Registration
Statement has not been declared effective by the Commission within 120 days of
the Company’s receipt of a Demand Registration pursuant to Section 6(a) (or 90
days if the Commission’s staff does not review the Demand Registration
Statement), then the Company shall, as additional consideration, deliver to the
Holder who has requested to have its Registrable Securities registered on such
120th or 90th day, as applicable, and on each successive
30th day thereafter until such Demand Registration Statement has
been declared effective by the Commission, a number of shares of Common Stock
equal to 1% of the number of shares of Common Stock into which this Note is
convertible pursuant to Section 2(a) (before any adjustment pursuant to Section
2(b) of this Note, such number of shares will be 300,000).


 


 


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(iii)               Notwithstanding anything to
the contrary contained in this Section 6, the Company shall not be required to
issue and deliver to the Holder additional shares of Common Stock pursuant to
Sections 6(b) and 6(c) to the extent that Registrable Securities may be sold by
the Holder without limitation pursuant to Rule 144 under the Securities Act.


 


(b)                 Piggyback Registration.  In the event the Company proposes to register
any of its securities under the Securities Act by filing any form of
registration statement (other than Form S-4 or Form S-8 or the successor form
of either of them) that would legally permit the inclusion of the Registrable
Securities (including a Demand Registration pursuant to Section 6(a)), the
Company shall give the Holder written notice thereof as soon as practicable but
in no event less than 30 days prior to the filing of such registration
statement, and shall provide the Holder an opportunity to include in such
Registration all Registrable Securities requested by the Holder in writing to
be included therein.  If the Holder
chooses to include in any such registration statement all or any part of the
Registrable Securities, such Holder shall, within 10 days after the
above-described notice from the Company, so notify the Company in writing.  Such notice shall state the intended method of
disposition of the Registrable Securities by the Holder.  If such Holder decides not to include all of
its Registrable Securities in any registration statement thereafter filed by
the Company, the Holder shall nevertheless continue to have the right to include
any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to its
securities, all upon the terms and conditions set forth herein.  The Holder shall have one piggyback registration
right pursuant to this Section 6(b) and a registration will not count as a
piggyback registration until it has become effective and includes 100% of the
Registrable Securities requested by such Holder to be included in the
registration statement.


 


7.             General.


 


(a)                  Amendments; Waivers.  No provision of this Note may be waived or
amended except in a written instrument signed, in the case of an amendment, by
the Company and the Holder or, in the case of a waiver, by the party against
whom enforcement of any such waiver is sought. 
No waiver of any default with respect to any provision, condition or
requirement of this Note shall be deemed to be a continuing waiver in the
future or a waiver of any subsequent default or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of either
party to exercise any right hereunder in any manner impair the exercise of any
such right.


 


(b)                 Construction.  The headings herein are for convenience only,
do not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.  The
language used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent, and no rules of strict construction will
be applied against any party.


 


 


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(c)                  Successors and Assigns;
Survival.  This Note
shall be binding upon and inure to the benefit of the parties and their
successors and assigns.  This Note and
the obligations hereunder may not be assigned by the Company without the prior
written consent of the Holder.  The
Holder may assign this Note and its rights hereunder (including the
registration rights set forth in Section 6) without the consent of the
Company.  The terms of Section 6 of this
Note shall survive the repayment of this Note and the Holder (including its
successors, assigns and transferees of this Note and the Common Stock
underlying this Note) shall be entitled to exercise and receive the benefits of
the registration rights set forth in Section 6 hereof following the repayment
of this Note. Notwithstanding the foregoing, no successor, assign or transferee
of this Note or the Common Stock underlying this Note shall be entitled to
exercise and receive the benefits of the registration rights set forth in
Section 6 hereof to the extent that the Registrable Securities held by such
Holder may be sold without limitation pursuant to Rule 144 under the Securities
Act.


 


(d)                 Severability.  If any provision of this Note is held to be
invalid or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Note shall not in any way be affected or
impaired thereby and the parties will attempt to agree upon a valid and enforceable
provision that is a reasonable substitute therefor, and upon so agreeing, shall
incorporate such substitute provision in this Note.


 


(e)                  Replacement of the Note.  If any certificate or instrument evidencing
this Note is mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation
thereof, or in lieu of and substitution therefor, a new certificate or
instrument, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and customary and reasonable
indemnity, if requested.  The applicants
for a new certificate or instrument under such circumstances shall also pay any
reasonable third-party costs associated with the issuance of such replacement
Note.


 


(f)                    Usury.  To the extent it may lawfully do so, the
Company hereby agrees not to insist upon or plead or in any manner whatsoever
claim, and will resist any and all efforts to be compelled to take the benefit
or advantage of, usury laws wherever enacted, now or at any time hereafter in
force, in connection with any claim, action or proceeding that may be brought
by the Holder in order to enforce any right or remedy under this Note.  Notwithstanding any provision to the contrary
contained in this Note, it is expressly agreed and provided that the total
liability of the Company under this Note for payments in the nature of interest
shall not exceed the maximum lawful rate authorized under applicable law (the “Maximum Rate”), and, without limiting the foregoing, in no
event shall any rate of interest or default interest, or both of them, when
aggregated with any other sums in the nature of interest that the Company may
be obligated to pay under this Note exceed such Maximum Rate.  It is agreed that if the maximum contract
rate of interest allowed by law and applicable to this Note is increased or
decreased by statute or any official governmental action subsequent to the date



 


 


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hereof, the new maximum
contract rate of interest allowed by law will be the Maximum Rate of interest
applicable to this Note from the effective date forward, unless such
application is precluded by applicable law.


 


(g)                 Governing Law.  All questions concerning the construction,
validity, enforcement and interpretation of this Note shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Delaware, without regard to the principles of conflicts of law thereof.


 


[Remainder of This Page
Intentionally Left Blank; Signature Page to Follow]


 


 


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                IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed by duly authorized officer as of the date set forth above.


 


	
   

  	
  MMA MEDIA INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Michael Kurdziel

  
	
   

  	
   

  	
  Chief Executive Officer

  



 


ACKNOWLEDGEMENT AND AGREEMENT:


 


                The
undersigned Holder hereby acknowledges and agrees that this Note amends,
restates and replaces in its entirety the Original Note.


 


 


	
  THE HOLDER:

  
	
   

  
	
  TAPIRDO ENTERPRISES, LLC

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
  Adam Roseman

  
	
   

  	
  Manager

  



 


 


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