ex10-6.htm


    Exhibit
10.6

     

    
      
      

       

      
        
          	
                  

                		


        

      

       

       

      


      


      May __,
2009

      


      Mr.
Mitchell John

      Lamar
Valley, LLC

      3440 S.
60th
Street West

      Billings,
Montana 59106

      


      Re: Production & Revenue Share
Letter Agreement

      


      Gentlemen:

      


      Upon your
approval and execution below, this Production & Revenue Share Letter
Agreement (the “Agreement”) is entered into as of May 18, 2009 (the “Effective
Date”) by and among Modavox, Inc., a Delaware corporation with a principal place
of business at 1900 W. University Drive, Suite 231, Tempe, Arizona 85281
(“Producer"), Lamar Valley, LLC, a Texas limited liability company doing
business as High Line Media Communications Company with a principal place of
business at 2100 Post Oak Crossing, Sherman Texas 75092 (“High Line”) and
Mitchell John, an individual residing at 3440 S. 60th Street
West, Billings, Montana 59106.   High Line and Mitchell John are
referred to collectively herein as MJ.  Producer and MJ are referred
to collectively herein as the “Parties.”

      


      The
purpose of the Agreement is to describe the terms and conditions under which
Producer and MJ will produce and promote a series of talk radio shows featuring
Mitchell John to be aired on and over the Modavox-owned/managed VoiceAmerica
Network, World Talk Radio, and/or associated portals (the "Network") for the
Production Period commencing on the Effective Date and ending one (1) year after
the Effective Date, as described below.

      


      The
Parties hereby agree as follows:

      


      I.          Production
of Shows, MJ Bus Tour & “Top 50 Countdown”

      


      (a)           Producer
will develop and produce a series of talk radio shows and related on-demand
programming featuring Mitchell John, to broadcast over the Network on a daily
basis (Monday through Friday) (the “Shows”), as follows:

      


      (i)           Each
Show will be forty-four (44) minutes in length.

      


      (ii)           Each
Show will be hosted by one or more individuals designated by MJ who, among other
things, will, address current events, music countdowns, events, tour,
etc.

      


      (iii)           Each
Show will be consistent with the content, reputation and brand identity of MJ
and the Network’s programming and production guidelines. The Network will afford
MJ the opportunity to provide input during the production of each Show and will
have editorial approval with respect to each Show.

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (iv)           The
Parties will reach mutual agreement as to the production schedule for the first
fifty two (52) weeks after the Effective Date (the “First Season”).

      


      (b)           Commencing
on or about May 1, 2009, MJ will conduct a promotional “bus tour” to promote the
Shows, including the Show “MJ in the Morning,” and the
Network.   The bus used for the promotional “bus tour” will
display the Voice America logo and other Producer logos, to be
determined.  Producer will also solicit eight (8) promotional sponsors
whose name and/or logo will be displayed on the tour bus.  Acceptance
of each promotional sponsor to be displayed on the tour bus shall be in the sole
discretion of MJ.

      


      (c)           MJ
will host a weekly two-hour “Top Fifty Countdown” show on the Network related to
top country and gospel music recordings (the “Top 50 Countdown”).  The
Top Fifty Countdown will be played each Saturday morning on Voice America and
World Talk Radio.

      


      II.        Rights
Granted

      


      In
exchange for the consideration provided hereunder, MJ will grant to Producer the
following exclusive perpetual rights and licenses:

      


      (a)           To
exhibit, distribute, transmit, display, exploit, rebroadcast and perform
(collectively, to "Exhibit") the First Season of the Shows and the Top Fifty
Countdown by any and all means of radio transmission and delivery, including but
not limited to the Internet, whether now known or hereafter developed on a
worldwide basis (“Distribution"), and on and over the Network;

      


      (b)           To
use the Shows  and Top Fifty Countdown for: (i) audience and marketing
testing; (ii) sponsor/advertiser screening and; (iii) reference and file
purposes;

      


      (c)           To
promote each of the Shows and the Top Fifty Countdown in any manner or media,
including without limitation, the right to use and license others to use
Mitchell John’s name for the sole purpose of promoting the Show and the Top
Fifty Countdown, the title of, trailers created for and excerpts from each Show
and the Top Fifty Countdown and the name, voice and likeness of and any
biographical material concerning all persons appearing in or connected with each
such Show or the Top Fifty Countdown for the purpose of obtaining sponsors and
advertising, promoting and/or publicizing each such Show and the Top Fifty
Countdown; provided, however, that MJ will make reasonable efforts to promote
the Shows and the Top Fifty Countdown in at least as favorable a manner, media,
and number of exposures; and

      


      (d)           To
include Producer’s name, trademark and logo in each of the Shows and the Top
Fifty Countdown and to identify Producer as the exhibitor of the Shows and the
Top Fifty Countdown.

      


      


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      


      
        	
                III.

              	
                Compensation

              


      

      


      As
consideration for the Parties respective obligations hereunder, the Parties
agree to the following compensation and revenue sharing
arrangement:

      


      (a)           Producer
will pay to MJ ten percent (10%) of the gross ad buys or advertising contract
amount associated with the Shows and the Top Fifty Countdown. Sponsor will remit
MJ’s share of such gross ad buys within fifteen (15) days following the
completion of each calendar month.  In addition, Producer will issue
to MJ ten thousand (10,000) registered shares of Producer common stock for each
group of twenty-five 25 syndicated stations that contract with Producer to
broadcast the Top Fifty Countdown.  Such registered shares will be
issued to MJ as soon as practicable following Producer’s registration of such
shares as required by SEC rules and regulations.

      


      (b)           Advertising
revenue associated with visual advertising placed on the tour bus described in
Section I(b) above will first be paid to reimburse or cover all expenses related
to wrapping the tour bus in promotional sponsors, including the initial wrapping
of the bus on May 1, 2009.  All revenue thereafter will be split 50/50
by and between MJ and Producer for the one-year Term of this
Agreement.

      


      (c)           MJ
will receive, or be eligible to receive, additional compensation in the form of
Producer common stock or warrants to purchase common stock, as
follows:

      


      (i)           Producer
will issue to MJ twenty-five thousand (25,000) registered shares of Producer
common stock as soon as practicable following Producer’s registration of such
shares as required by SEC rules and regulations

      


      (ii)           Upon
the one year anniversary of the Effective Date, MJ will be granted warrants to
purchase one hundred thousand (100,000) un-registered shares of Producer common
stock at a price of $2.40 per share, which warrants will expire if not exercised
within two (2) years from the date of grant. Shares issued to MJ per
such exercise may not be sold by MJ, with respect to the first fifty thousand
(50,000) shares, until after six (6) months from the date of issuance and, with
respect to the second fifty thousand (50,000) shares, until after twelve (12)
months from the date of issuance.

      


      (iii)             In
addition to the Compensation described above, beginning with the calendar
quarter commencing June 1, 2009, MJ shall receive quarterly payments, payable in
common stock of Producer, in the amount of five thousand and four hundred
(5,400) shares per calendar quarter as compensation for promotion of the Network
through performance of the activities described in Section IV(b) of this
Agreement.  Any such payment: (a) will be issued to MJ within thirty
(30) days following the last day of the calendar quarter for which the bonus is
payable and; (b) will be in the form  of unregistered securities
bearing a restricted legend and subject to applicable SEC restrictions on
re-sale.

      


      IV.       Advertising

      


      (a)           Producer
will have the right to sell eight (8) minutes of commercial announcement time
per each hour Show and the Top Fifty Countdown and to disburse all revenue
derived therefrom as provided in Section III(a). MJ will assist Producer in
selling such advertising by providing information and materials which he
provides to other marketers of advertising.

      


      (b)           
MJ will use his best efforts to promote the Network through the following
activities:

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (i)           Appearance
by Mitchell John on radio music shows, daily talk radio shows and live national
television shows (music and talk);

      


      (ii)           Performance
by Mitchell John at live concerts in southern and northwestern United States,
including eight (8) or more church performances featuring audiences of five
hundred (500) or more and five (5) medium concert performances featuring
audiences of two thousand (2,000) or more;

      


      (iii)           Wal-Mart
in-store appearances (20 or more throughout United States);

      


      


      (iv)           Creation
and national broadcasts of Vanishing Days of the Cowboy Video Series I & II
on RFD Television or another nationally rated broadcast station;

      


      (v)           Appearance
by Mitchell John in additional major regional radio markets related to Mitchell
John’s Great American Life Stories (planned for Q4 2009 and 2010).

      


      (vi)           Promotion
of Bus Tour in multiple United States markets during travel and performances
associated with filming Vanishing Days of the Cowboy series.

      


      (vii)           MJ
will credit Producer with one (1) minute per hour on his National Television
Show, plus two (2) 30-second spots on his Top 50 Countdown.

      


      
        	
                V.

              	
                Confidentiality

              


      

      


      (a)           To
further the business relationship between MJ and Producer, MJ and Producer will
each be revealing to the other certain proprietary information and Intellectual
Property Rights (as hereinafter defined), from which each party might derive
economic value, actual or potential, from such information not being generally
known to, and not being readily ascertainable by proper means by, other persons
who can obtain economic value from its disclosure or use, and which is the
subject of efforts that are reasonable under the circumstances to maintain its
secrecy. This proprietary information is hereinafter referred to collectively as
the “Protected Information.” “Protected Information” will not include
information that (i) is publicly available prior to the date of this Agreement;
(ii) becomes publicly available after the date of this Agreement through no
wrongful act of the receiving party; (iii) is furnished to others by the
disclosing party without similar restrictions on their right to use or disclose;
(iv) is rightfully known by the receiving party without any proprietary
restrictions at the time of receipt of such information from the disclosing
party or becomes rightfully known to the receiving party without proprietary
restrictions from a source other than the disclosing party; (v) is independently
developed by the receiving party by persons who did not have access, directly or
indirectly, to the proprietary information; or (vi) is obligated to be produced
under order of a court of competent jurisdiction or a valid administrative or
congressional subpoena, provided that the receiving party promptly
notifies the disclosing party of such event so that the disclosing party
may seek an appropriate protective order. For purposes hereof, “Intellectual
Property Rights” means patents and applications therefor, trademarks and
applications therefor, service marks and applications therefor, copyrights and
applications therefor, and trade secrets.

      


      (b)           As
a condition to each of the undersigned parties sharing with the other, whether
in writing or orally, any Protected Information, each party hereby acknowledges
and agrees with the other as follows: (i) the Protected Information, whether now
or hereafter furnished to the receiving party in whole or in part, is
confidential; (ii) the receiving party’s business and prospects could be damaged
if the receiving party’s Protected Information is disclosed to the receiving
party without such party’s consent; and (iii) Producer and MJ will each keep
confidential and refrain from disclosing or divulging to any person the other’s
Protected Information without the other’s prior written consent (other than
disclosures to the receiving party’s agents, representatives or employees who
will be bound by the terms of this Agreement and advised that the other’s
Protected Information must be treated as confidential). The receiving party will
not use the other’s Protected Information (nor permit the use thereof) in a
manner or for a purpose detrimental to the other’s business. Upon request at any
time, the receiving party will return to the disclosing party all of the
disclosing party’s Protected Information.

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (c)           The
mutual obligations of confidentiality of Producer and MJ with respect to
Protected Information which constitutes trade secrets under the Uniform Trade
Secrets Act (or other similar applicable law) will run for as long as such
information remains a trade secret. The mutual obligations of confidentiality of
Producer and MJ with respect to Protected Information that is not covered under
the Uniform Trade Secrets Act (or other similar applicable law), will run for
three (3) years from the date of disclosure pursuant to this
Agreement.

      


      (d)           Wrongful
disclosure or use of Protected Information in contravention of the provisions of
this Agreement will give rise to irreparable injuries not adequately compensable
in damages. If preliminary injunctive relief to maintain the status quo is
required, such relief may be sought by any of the undersigned parties from any
court of competent jurisdiction, each Party agrees to be bound by any and all
orders rendered by such court.

      


      


      
        	
                VI.

              	
                Independent
      Contractor Status

              


      

      


      The
employees, subcontractors, methods, facilities and equipment used by Producer
and MJ, respectively, will be at all times under its exclusive direction and
control.  MJ’s relationship to Producer under this Agreement is that
of an independent contractor, and nothing in this Agreement will be construed to
constitute MJ, its subcontractors or any of their employees as an employee,
agent, associate, joint venturer, or partner of Producer, or vice versa. It is
agreed that Producer’s employees who are assigned to MJ work under this
Agreement will at all times be and remain employees of
Producer.   Any materials or equipment provided by a Party under
this Agreement will remain the property of such Party.

      


      VII.      Limited
Representations & Warranties

      


      (a)           MJ
hereby represents and warrants to Producer that: (a) it has the authority and
capacity to execute and deliver this Agreement and perform its obligations
hereunder on behalf of itself and on behalf of any subsidiary or affiliate of
MJ; (b) this Agreement constitutes a legal, valid and binding obligation of MJ,
enforceable against MJ in accordance with its terms; (c) it has all necessary
rights or approvals for Producer to be able to obtain the rights conveyed under
this Agreement; and (d) its business activities comply with all applicable
federal, state and local laws and regulations.

      


      (b)           Producer
hereby represents and warrants to MJ that: (a) it has the authority and capacity
to execute and deliver this Agreement and perform its obligations hereunder; (b)
this Agreement constitutes a legal, valid and binding obligation of Producer,
enforceable against Producer in accordance with its terms;  (c) it has
all necessary rights or approvals, for which it is responsible, for Producer to
perform the activities contemplated hereunder; and (d) in executing its duties
under this Agreement it will comply with all applicable federal, state and local
laws and regulations.

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      VIII.    Term
& Termination

      


      (a)           The
term of this Agreement will commence as of the Effective Date and will continue
for the initial term of one (1) year(the “Initial Term”), unless terminated in
accordance with (b) or (c) below.  If the Parties desire to extend the
Agreementfor another term, the Parties shall begin negotiations at least thirty
(30) days prior to the expiration of the Initial Term and use their best efforts
to timely execute a new agreement so as not to interrupt the consistent
broadcast of the shows.

      


      (b)           If
either Party materially defaults in the performance of any of its material
obligations set forth in this Agreement and does not substantially cure such
default within thirty (30) days after being given written notice specifying the
default, then the Party not in default may, by giving written notice thereof to
the defaulting Party, terminate this Agreement as of a date specified in such
notice of termination.  The foregoing terms are subject to Subsection
VIII(e) below (“Cure Period”) and Section IX (“Dispute Resolution &
Governing Law”) of the Agreement.

      


      (c)           Either
Party may terminate this Agreement immediately if the other Party breaches the
terms of Section V of this Agreement.

      


      (d)           Sections
II, V through VII and IX will survive termination of this
Agreement.

      


      (e)           Any
cure period provided for in the preceding Subsection VIII(b) will be extended
for an additional thirty (30) days (or such longer period as the parties may
agree in writing), if: (i) the breaching Party is making diligent efforts to
cure the breach with due regard for the seriousness of the
non-performance and its impact upon the other Party; (ii) a cure cannot
reasonably be achieved within the applicable cure period; and (iii) within the
initial thirty (30) day cure period, the breaching Party gives the other Party
written notice of the actions it is taking to cure the breach and the number of
days that it believes will be required to cure the breach.

      


      IX        Dispute
Resolution & Governing Law

      


      (a)           Should
a dispute arise between the parties under or relating to this Agreement, each
party agrees that prior to initiating any formal proceeding against the other
(except for the seeking of injunctive relief), the parties will comply with the
following dispute resolution process:  Each party will initially
designate a representative for purposes of seeking to amicably resolve the
dispute.  The parties’ representatives will arrange to promptly meet
and discuss in good faith the resolution of the dispute.  If the
parties' representatives are unable to resolve the dispute within fifteen (15)
business days, either may, upon written notice to the other party, require that
the dispute be submitted to more senior representatives within each party
("Senior Representatives").  The Senior Representatives of each party
will meet as soon as possible to negotiate in good faith to resolve the
dispute.  If the Senior Representatives are unable to resolve the
dispute within fifteen (15) business days after submission of the dispute to
them, or such longer period for resolution as may be mutually agreed in writing
by the Senior Representatives, then the parties may (but only if both parties
consent) seek resolution of the dispute by non-binding arbitration administered
by and under the then-current rules of American Arbitration Association ("AAA"),
or in jurisdictions where the AAA is not present, an equivalent independent
arbitration organization.  The location of the proceeding will be
determined by the arbitrator after consultation with the parties.

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (b)           This
Agreement will be governed by and construed in accordance with the laws of the
State of Arizona without giving effect to principles of conflicts of
laws.  Each Party agrees that the service of process or of any other
papers upon them by certified mail at their respective address set forth herein
will be deemed good, proper and effective service and hereby expressly waives
any defense based on lack of personal jurisdiction for any such
purpose.

      


      X.        Assignment;
Subcontracts.

      


      Neither
Party may assign this Agreement or any right or obligation hereunder either in
whole or in part without the written consent of the other Party, except, with
respect to Producer, (a) to any entity directly or indirectly controlling,
controlled by, or under common control with the assigning Party, or (b) to the
successor (by sale, merger, reorganization or otherwise) to the business
operations of the assigning Party.

      


      


      XI.        Force
Majeure

      


      Producer
and MJ will be excused from performance of  each Party’s respective
obligations pursuant to this Agreement for any period and to the extent
that  each Party is prevented from performing such obligations, in
whole or in part, as a result of delays caused by  the other Party or
a third party, or an act of God, severe weather, war, civil disturbance, court
order or any other cause over which Augme does not have direct control,
including internet or communication problems, third party hardware or software
errors, computer viruses or similar harmful programs or data, or unauthorized
access or theft; provided such Party has taken reasonable and prudent actions to
minimize loss and prevent disruption on account of such events (a "Force Majeure
Event").  Each Party will immediately notify the other Party of the
occurrence of any Force Majeure Event and describe in reasonable detail the
nature of the Force Majeure Event, including the actions taken to minimize loss,
and provide a preliminary estimate of the time expected to cure interruption in
Services caused by the Force Majeure Event.   Each Party will
take reasonable actions to resume, or provide alternative performance of its
obligations as soon as feasible.

      


      XII.        General.

      


      This
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof and this Agreement will supersede any other written
document related to the subject matter covered by this Agreement, and there are
no representations, understandings or agreements relative hereto which are not
fully expressed herein.  No amendment, change, waiver, or discharge
hereof will be valid unless in writing and signed by an authorized
representative of the Party against which such amendment, change, waiver, or
discharge is sought to be enforced.  All provisions of this Agreement
relating to proprietary rights and confidentiality and such other terms which by
their nature are intended to continue, will survive termination of this
Agreement. The provisions of this Agreement are intended to benefit only the
parties hereto, and their respective permitted agents, successors and
assigns.  No rights will be granted to any other person by virtue
of this Agreement, and there will be no third party beneficiaries
hereof.  The invalidity or unenforceability of any provision of this
Agreement will not affect the other provisions, and this Agreement is to be
construed in all respects to the extent possible to fulfill the purposes of this
Agreement with the omission of such invalid or unenforceable
provision.

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      XIII.       Publicity

      


      The
Parties may issue a mutually agreeable joint press release on or after the
Effective Date announcing their relationship.

      


      
        	
                 
      

              	
                * *
      *

              


      

      Very
truly yours,

      Producer’s.

      


      By: /s/ Jeff Spenard

      Jeff
Spenard 

      iRadio
President

      


      ACCEPTED
AND AGREED:

      Mitchell
John

      


      By: /s/ Mitchell John

      Mitchell
John

      


      


      ACCEPTED
AND AGREED:

      Lamar
Valley, LLC

      


      By: /s/ Mitchell John

      Mitchell
John

       

       

       

       

       

       

       

       

       

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      


      Exhibit
A

      


      Performance-Based
Compensation

      


      The
following performance-based compensation will be payable to MJ upon satisfaction
of the performance milestones identified below:

      


      I.           Annual
Bonus Opportunity

      


      (a)           Following
the one year anniversary of the Effective Date, Producer will issue to MJ thirty
four thousand (34,000) shares of Producer common stock if the Show “MJ in the
Morning” attracts twenty five thousand (25,000) average monthly listeners and
earns fifty thousand dollars ($50,000.00) in advertising revenue by the end of
the first year after the Effective Date.  Such shares (i) will be
unregistered securities bearing a restricted legend and subject to applicable
SEC restrictions on re-sale; and (ii) will be issued as soon as practicable
(which shall be no later than 14 days) following MJ’s satisfaction of the
performance criteria.

       

      


      (b)           If,  the
performance goals specified in (a) above are partially but not completely
satisfied, such bonus payment will be made on a pro-rata basis based on the
extent to which each such annual goal is satisfied.