Exhibit 10.1


 


CONSULTING AGREEMENT


 


This Consulting Agreement (this “Agreement”) is dated as of January 24,
2008, between MMA Media Inc., a Delaware corporation (the “Company”),
and ARC Investment Partners, LLC, a Delaware limited liability company (“Consultant”).


 


RECITALS


 


WHEREAS, the Company
desires to engage Consultant, and Consultant desires to be engaged, as an
independent contractor to provide various sales, marketing and other advisory
services for the Company pursuant to the terms and subject to the conditions
set forth in this Agreement.


 


NOW, THEREFORE, in
consideration of the services to be performed by Consultant, and for the mutual
covenants and promises as specified hereinafter, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:


 


1.             CONSULTANT’S DUTIES.


 


1.1           The
Company engages Consultant and Consultant accepts the Company’s engagement to
provide sales, marketing and other advisory services to the Company, as such
services may be assigned to Consultant by the Company’s Chief Executive Officer
from time to time (the “Services”). 
In assigning the Services to Consultant, the Company’s Chief Executive
Officer shall, either orally or in writing, specify to Consultant the scope of
the Services to be completed and the deadline for completion of the Services,
if necessary.


 


1.2           Consultant
further agrees to render the Services conscientiously and to devote Consultant’s
reasonable efforts and abilities thereto, at such time during the term hereof
and in such reasonable manner as the Company’s Chief Executive Officer and
Consultant shall mutually agree.


 


2.             TERM.  The
term of this Agreement shall commence on the date hereof and continue until July 31,
2008 (the “Term”).


 


3.             COMPENSATION; SECURITIES LAWS; REIMBURSEMENT OF
EXPENSES.


 


3.1           Compensation.  For the Services provided hereunder, the
Company agrees to issue Consultant a warrant in the substantially the form
attached hereto as Exhibit A (“Warrant”) to purchase 4,169,951
shares of the Company’s common stock, $0.001 par value per share (“Common
Stock”), at $1.08 per share.  The
Warrant shall vest and be exercisable in accordance with Section 3.2.  In addition, the Company agrees to pay to
consultant a one-time cash fee of $500,000 upon the successful listing of the
Company on Nasdaq or the American Stock Exchange within twelve months of the
execution of this Agreement, so long as the Company has received total equity
investment of at least $20 million, in one or more financings, following the
execution of this Agreement.


 


1

















 


3.2           Vesting.  Subject to Section 3.3, the Warrant will
vest and be exercisable on the last day of each calendar month during the Term
commencing on February 1, 2008 according to the following schedule, with
the Warrant being fully vested and exercisable on July 31, 2008:


 


	
  Month

  	
   

  	
  Number
  of Shares Vesting

  
	
  First
  through 5th Months

  	
   

  	
   

  	
  694,991/month

  
	
   

  	
   

  	
   

  	
   

  
	
  6th
  Month

  	
   

  	
   

  	
  694,996

  
	
   

  	
   

  	
   

  	
   

  
	
  Total:

  	
   

  	
   

  	
  4,169,951

  



 


3.3           Termination.  In the event this Agreement is terminated by
the Company for any reason or for no reason, all unvested portions of the
Warrant on the effective date of such termination shall become fully vested and
immediately exercisable.  In the event
this Agreement is terminated by Consultant for any reason, all unvested
portions of the Warrant on the effective date of such termination shall be
forfeited by Consultant.


 


3.4           Securities
Law Restrictions.  Consultant
acknowledges and agrees that the Warrant and the shares of Common Stock
underlying the Warrant are restricted securities under federal and state
securities laws that will be held by Consultant for its own account and not on
behalf of others.  Consultant further
acknowledges and agrees that the Warrant and the shares of Common Stock
underlying the Warrant are being acquired by Consultant for investment purposes
only and not with a view to sell such Warrant or shares of Common Stock.  Consultant is an “accredited investor” as
such term is defined in Rule 501 of Regulation D promulgated under the
Securities Act of 1933, as amended (the “Securities Act”).  Consultant acknowledges and agrees that it
may not sell, transfer, assign or otherwise dispose of the Warrant or any
shares of Common Stock underlying the Warrant except pursuant to an effective
registration statement under the Securities Act or a valid exemption therefrom,
without first delivering to the Company an opinion of counsel in form and
substance reasonably acceptable to the Company that registration under the
Securities Act or any applicable state securities laws is not required in
connection with such transfer.


 


3.5           Legends.
Consultant understands that the Warrant and the certificates representing the
shares of Common Stock underlying the Warrant will bear the legends set forth
below, as well as any other legends that the Company deems necessary or
desirable in connection with this Agreement, the Securities Act or other rules,
regulations or laws:


 


THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY
STATE SECURITIES LAWS.  NO SALE OR
DISPOSITION OF THESE SECURITIES MAY BE EFFECTED EXCEPT IN COMPLIANCE WITH
RULE 144 UNDER THE ACT OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO, OR UPON RECEIPT OF AN OPINION OF COUNSEL FOR 


 


2

















 


THE HOLDER SATISFACTORY TO THE COMPANY TO THE
EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT, OR UPON RECEIPT OF
A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION.


 


3.6           Withholding
of Taxes.  Consultant acknowledges
that the Company shall not withhold, or be in any way responsible for, the
payment of any federal, state or local income tax, wage taxes, FICA taxes, unemployment
compensation, worker’s compensation contributions, vacation, sick leave pay,
retirement benefits, medical benefits or any other payments except the
reimbursement for pre-approved travel expenses pursuant to Section 3.8.  Consultant hereby indemnifies and holds
harmless the Company and its officers, directors, employees, Affiliates (as
defined below) and agents for the failure to withhold or otherwise be
responsible for any such amounts.


 


3.7           Adjustments.  In the event of a reorganization, recapitalization,
stock dividend or stock split, or combination or other change in the Common
Stock of the Company, the Company shall, in order to prevent the dilution or
enlargement of rights pursuant to the Warrant or the shares of Common Stock
underlying the Warrant, make such adjustments in the number and type of shares
of Common Stock underlying the Warrant as is appropriate and equitable.


 


3.8           Reimbursement
of Expenses.  During the
term of this Agreement, the Company
shall reimburse Consultant for all reasonable out-of-pocket expenses associated
with the performance of the Services.  The
Company shall reimburse Consultant
for its expenses upon completion of an expense report in accordance with
the Company’s reimbursement, reporting and documentation policies in effect
from time to time with respect to travel, entertainment and other business
expenses.


 


4.             STATUS OF THE RELATIONSHIP.  Consultant shall be an independent
contractor and this Agreement shall not create an employer/employee
relationship between the parties. 
Consultant shall have sole control of the manner and means of performing
the Services under this Agreement subject to the scope of the Services and time
limitations established by the Company. 
Except as specifically granted to Consultant, Consultant shall have no
right, authority or power to act for or on behalf of Company or its Affiliates
or to bind the Company or its Affiliates. 
All of Consultant’s activities will be at its own risk and
liability.  Consultant shall not be
entitled to receive, and shall not receive, any benefit provided by the Company
to its employees, including, without limitation, health insurance, dental
insurance, benefits or paid vacation.


 


5.             DISCLOSURE OF INFORMATION.


 


5.1           Consultant
acknowledges that, in and as a result of its relationship with the Company, it
has been and will be making use of, acquiring or adding to confidential
information of a special and unique nature and value, including, without
limitation, the Company’s and its Affiliates’ trade secrets, proprietary
information, operations, prospects, systems, programs, procedures, customers,
know how, reports and communications (including, without limitation, technical
information on the performance of the Company’s and its Affiliates’ business),
as well 


 


3

















 


as the information,
observations and data obtained by it while providing the Services for the
Company and its Affiliates concerning the business or affairs of the Company
and its Affiliates (collectively, “Confidential Information”).  Consultant further acknowledges that any
information and materials received by it relating to Consultant’s engagement
hereunder from third parties in confidence shall be deemed to be and shall be
Confidential Information within the meaning of this Section.  Consultant further acknowledges that all
Confidential Information is the property of the Company and its Affiliates.


 


5.2           As
partial consideration for the Company’s agreement to enter into this Agreement,
Consultant covenants and agrees that it shall not, except with the prior
written consent of the Company or as required by law, at any time during or
following the term of this Agreement, directly or indirectly, use, divulge,
reveal, report, publish, transfer, disclose or utilize, for any purposes
whatsoever, any of the terms of this Agreement or such Confidential Information
which has been obtained by or disclosed to it as a result of Consultant’s
affiliation with the Company and its Affiliates.


 


5.3           Notwithstanding
the foregoing, “Confidential Information” shall not include any
information that: (i) is or becomes generally available to and known by
the public (other than as a result of an unpermitted disclosure directly or
indirectly by Consultant or its Affiliates, advisors or representatives); (ii) is
or becomes available to Consultant on a non-confidential basis from a source
other than the Company or its Affiliates, advisors or representatives, provided
that such source is not and was not bound by confidentiality agreement with or
other obligation of secrecy to the Company of which Consultant has knowledge;
or (iii) has already been or is hereafter independently acquired or
developed by Consultant without violating any confidentiality agreement with or
other obligation of secrecy to the Company.


 


5.4           In
the event Consultant determines that it is required by applicable law to make
any such disclosure, Consultant shall use its commercially reasonable best
efforts to promptly advise the Company and shall consult and cooperate to the extent
feasible with respect to the timing, manner and contents of such
disclosure.  Consultant shall deliver to
the Company at the termination of this Agreement, or at any other time the
Company may reasonably request, all memoranda, notes, plans, records, reports,
computer tapes and software and other documents and data (and copies thereof)
relating to the Confidential Information or the business of the Company or its
Affiliates which it may then possess or have under its control.


 


5.5           For
purposes hereof, “Affiliate” shall mean with respect to any individual,
partnership, joint venture, corporation, limited liability company, trust,
unincorporated association or other entity (each, a “Person”): (i) any
other Person that directly or indirectly through one or more intermediaries
controls or is controlled by or is under common control with such Person; (ii) any
other Person owning or controlling 5% or more of the outstanding voting
securities of or other ownership interests in such Person; (iii) any
officer, director, member or partner of such Person; (iv) if such Person
is an officer, director, member or partner, any other Person for which such
Person acts in any such capacity; or (v) any company in which the Company
has and maintains an investment through itself or any other Affiliate.


 


6.             REGISTRATION
RIGHTS.  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 


 


4

















 


Form S-4
or Form S-8 or the successor form of either of them) at any time after the
date of this Agreement that would legally permit the inclusion of the Common
Stock underlying the Warrant (“Registrable Securities”), the Company
shall give Consultant 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 Consultant an opportunity to include in such registration all
Registrable Securities requested by Consultant in writing to be included
therein.  If Consultant chooses to
include in any such registration statement all or any part of the Registrable
Securities, Consultant 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 Consultant.  If Consultant decides not to include all of
its Registrable Securities in any registration statement thereafter filed by
the Company, Consultant 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.  Consultant shall have one piggyback
registration right pursuant to this Section 7 and a registration will not
count as a piggyback registration until it has become effective and includes
100% of the Registrable Securities requested by Consultant to be included in the registration statement.


 


7.             MISCELLANEOUS.


 


7.1           Entire Agreement.  This Agreement
constitutes the entire agreement between the parties with respect to the
subject matter hereof and all prior negotiations and agreements, whether
written or oral, are merged into this Agreement.


 


7.2           Enforcement.  Because Consultant’s services are unique and
because Consultant has access to Confidential Information, the parties hereto
agree that money damages would be an inadequate remedy for any breach of Section 5
of this Agreement.  In the event of a
breach or threatened breach of Section 5 of this Agreement, the Company,
its Affiliates and their respective successors or assigns may, in addition to
other rights and remedies existing in their favor, apply to any court of
competent jurisdiction for specific performance and/or injunctive or other
relief in order to enforce, or prevent any violation of, Section 5 of this
Agreement (without posting a bond or other security).


 


7.3           Severability.  If any provision of this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not
affect any other provision or part of a provision of this Agreement, but this Agreement
shall be reformed and construed as if such provision had never been contained
in it, and any such provision shall be reformed so that it would be valid,
legal and enforceable to the maximum extent permitted.


 


7.4           Counterparts.  This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
counterparts collectively shall constitute one document representing the
agreement among the parties.


 


7.5           Binding Agreement.  This Agreement shall be
binding upon and shall inure to the benefit of the parties to this Agreement
and their respective successors and assigns.


 


5

















 


7.6           Amendment.  This Agreement may not be amended,
discharged, terminated, modified or changed orally, and any such proposed
amendment, discharge, termination, modification or change shall be in writing
and signed by each of the parties hereto.


 


7.7           Waiver of Breach.  The waiver by any party of
a breach of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach, and no waiver shall be valid unless it is
in writing and is signed by the party against whom such waiver is sought.


 


7.8           Governing
Law; Venue; Waiver of Jury Trial. 
All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of California,
without regard to the principles of conflicts of law thereof.  Each party agrees that all legal proceedings
concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement (whether brought against a party hereto or its
respective Affiliates, directors, managers, officers, shareholders, members,
employees or agents) shall be commenced exclusively in the state and federal
courts sitting in Los Angeles County, California.  Each party hereto hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts sitting in Los
Angeles County, California for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein (including with respect to the enforcement of any of this Agreement),
and hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper.  Each party hereto hereby irrevocably waives personal
service of process and consents to process being served in any such suit,
action or proceeding by mailing a copy thereof via registered or certified mail
or overnight delivery (with evidence of delivery) to such party at the address
in effect for notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice
thereof.  Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner
permitted by law.  Each party hereto
hereby irrevocably waives, to the fullest extent permitted by applicable law,
any and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.  If any party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its reasonable attorneys’ fees and other reasonable costs and expenses incurred
with the investigation, preparation and prosecution of such action or
proceeding.


 


7.9           Survival.  The provisions and restrictions contained in
Sections 5 and 7 shall survive the termination of this Agreement or any
extensions thereof.


 


7.10         Successor and Assigns; Transfer of Warrant.
This Agreement and all rights, liabilities and obligations hereunder shall be
binding upon and inure to the benefit of each party’s successors and permitted
assigns; provided, however, that Consultant may not assign, transfer, or
subcontract this Agreement or any of its obligations hereunder without the
express, prior written consent of the Company, which consent may be given or
withheld in the Company’s sole discretion. 
In addition, Consultant may not sell, transfer, assign or otherwise
dispose of the 


 


6

















 


Warrant (or any portion
thereof) until such portion of the Warrant is vested pursuant to Section 3.2.


 


7.11         Notices.  Any and all notices or other communications
or deliveries required or permitted to be provided hereunder shall be in
writing and shall be deemed given and effective on the earliest of (i) the
date of transmission, if such notice or communication is delivered via
facsimile at the facsimile number specified in this Section 7.11 prior to
5:00 p.m. (Los Angeles, California time) on a business day, (ii) the
business day after the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number specified in this Agreement
later than 5:00 p.m. (Los Angeles, California time) on any date and
earlier than 11:59 p.m. (Los Angeles, California time) on such date, (iii) the
business day following the date of mailing, if sent by nationally recognized
overnight courier service, or (iv) upon actual receipt by the party to
whom such notice is required to be given. 
The address for such notices and communications shall be as follows:


 


	
  If to the Company:

  	
   

  	
  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
  Purchaser:

  	
   

  	
  ARC
  Investment Partners, LLC

  9440 Little Santa Monica Boulevard, Suite 401

  Beverly Hills, California 90210

  Attention: Adam Roseman

  Facsimile No.: 310-402-5932

  



 


or such other address as may be designated in
writing hereafter, in the same manner, by such party.


 


[SIGNATURE PAGE FOLLOWS]


 


7

















 


IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first written above.


 


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  MMA Media Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Kurdziel

  
	
   

  	
  Michael Kurdziel

  
	
   

  	
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CONSULTANT:

  
	
   

  	
   

  
	
   

  	
  ARC Investment Partners, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Adam Roseman

  
	
   

  	
  Adam Roseman

  
	
   

  	
  Chief Executive Officer

  



 


8

















 


Exhibit A


 


Common Stock
Purchase Warrant


 


See attached.


 


[See Exhibit 4.1 to this Current Report on Form 8-K]


 


9