Services Agreement - Lakeside Ventures LLC and Hollywood Media Corp.
Execution Copy
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SERVICES AGREEMENT
by and between
LAKESIDE VENTURES LLC,
and
HOLLYWOOD MEDIA CORP.
Dated as of February 9, 2001
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Table of Contents
Page
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1. Designated Services; Issuance of Shares.........................................................1
1.1 Designated Services, Etc...............................................................1
1.2 Issuance of Shares, Etc................................................................2
2. Closing.........................................................................................2
3. Representations and Warranties of the Company...................................................2
3.1 Organization, Standing and Power.......................................................3
3.2 Authority; Execution and Delivery; Enforceability......................................3
3.3 No Conflicts; Consents.................................................................3
3.4 Authorization..........................................................................4
3.5 Capitalization.........................................................................4
3.6 SEC Reports............................................................................4
3.7 Litigation, etc........................................................................4
3.8 Acknowledgment.........................................................................4
4. Representations and Warranties of Lakeside......................................................5
4.1 Organization, Standing and Power.......................................................5
4.2 Authority; Execution and Delivery; Enforceability......................................5
4.3 No Conflicts; Consents.................................................................5
4.4 Limited Liability Company Action; Authorizations.......................................6
4.5 Knowledge and Experience...............................................................6
4.6 Not Organized to Purchase..............................................................6
4.7 Litigation, etc........................................................................6
5. Restrictions on Transfer Imposed by the Securities Act..........................................6
5.1 Legends, Etc...........................................................................6
5.2 Removal of Legend and Transfer Restrictions............................................7
5.3 Rule 144...............................................................................7
6. Conditions to Closing...........................................................................7
6.1 Conditions to Lakeside's Obligations...................................................7
6.2 Conditions to Obligations of the Company...............................................8
7. Additional Agreements of the Company............................................................8
7.1 Right of First Negotiation and Last Refusal............................................8
7.2. "Piggyback" Registration...............................................................9
7.3. Expenses of Registration..............................................................10
7.4. Registration Procedures...............................................................10
7.5. Indemnification.......................................................................11
7.6. Rule 144 Reporting....................................................................11
7.7 Adjustment to Payments................................................................11
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8. Indemnification................................................................................12
9. Miscellaneous..................................................................................12
9.1 Waivers and Amendments................................................................12
9.2 Survival..............................................................................12
9.3 No Third-Party Beneficiaries..........................................................12
9.4 Successors and Assigns................................................................12
9.5 Entire Agreement......................................................................13
9.6 Notices...............................................................................13
9.7 Severability..........................................................................13
9.8 Brokers and Expenses, Etc.............................................................13
9.9 Governing Law.........................................................................14
9.10 Captions..............................................................................14
9.11 Execution in Counterpart..............................................................14
Exhibits
Exhibit A - Description of Designated Services
Exhibit B - Form of Company Counsel Opinion
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SERVICES AGREEMENT
SERVICES AGREEMENT, dated as of February 9, 2001(this
"Agreement") by and between LAKESIDE VENTURES LLC, a Delaware limited liability
company with principal offices located at 210 East 39th Street, New York, New
York 10016 ("Lakeside"); and HOLLYWOOD MEDIA CORP., a Florida corporation, with
principal offices located at 2255 Glades Road, Boca Raton, Florida 33413 (the
"Company").
PREAMBLE
WHEREAS, the Company desires to retain Lakeside to provide the
Designated Services (as defined herein) for the Service Period (as defined
herein);
WHEREAS, Lakeside wishes to provide the Company with such
Designated Services;
WHEREAS, the Company wishes to acquire such Designated
Services by the issuance to Lakeside of Shares (as defined herein) of the
Company on the terms and conditions contained herein and Lakeside is willing to
provide the Designated Services on such terms;
NOW, THEREFORE, the Parties, intending to be bound hereby, do
agree as follows:
1. Designated Services; Issuance of Shares.
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1.1 Designated Services, Etc.
(a) Designated Services. For the period of One (1) year
from the date hereof (the "Service Period") the Company has retained Lakeside to
furnish, and Lakeside shall furnish, the services described in Exhibit A hereto
(the "Designated Services").
(b) Payment Notices. The Company shall notify Lakeside in
writing (a "Payment Notice") of any payment obligation of Lakeside with respect
to the Designated Services not earlier than thirty (30) Business Days and not
later than ten (10) Business Days prior to the date such payments are due (the
"Due Date"). Each Payment Notice shall set forth the amount of the payment to be
made by Lakeside, the identity of the payee, the Due Date therefor and such
other pertinent information as shall permit Lakeside to timely make such payment
to the respective payee, and to properly account for the same in its books and
records. In addition, each Payment Notice shall also set forth the aggregate
dollar value of the Designated Services provided by Lakeside to the Company as
of the date of such Payment Notice (but excluding any payment to be made by
Lakeside on the Due Date referenced therein). In no event shall Lakeside be
required to provide the Company with Designated Services pursuant to this
Agreement with an aggregate dollar value in excess of $800,000 (the "Designated
Services Cap"). Lakeside shall notify the Company in writing within ten (10)
Business Days of receiving any Payment Notice in the event that the amount
payable by Lakeside on the Due Date specified in such Payment Notice would cause
the aggregate dollar value of the Designated Services provided by Lakeside to
the Company pursuant to this Agreement to exceed the Designated Services Cap.
For purposes hereof, "Business Day" shall mean any day that is not a Saturday,
Sunday or other day on which commercial banks in New York City are authorized or
required by law to remain closed.
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(c) Notice of Payment. Lakeside shall notify the Company
in writing on or prior to the Due Date with respect to a Payment Notice of the
payment by Lakeside of the amount set forth in such Payment Notice or, if
Lakeside fails to make such payment, the reason therefor.
1.2 Issuance of Shares, Etc.
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(a) Issuance of Shares. In consideration of Lakeside's
(i) providing the Designated Services to the Company during the Service Period,
and (ii) making the payment to the Company specified in Section 1.2(b) below,
the Company has authorized the issuance and sale to Lakeside of One Hundred
Sixty Thousand (160,000) shares of its common stock, $.01 par value per share
(the "Shares") (the "Payment"). The Shares have the rights and provisions as set
forth in the Company's Articles of Incorporation, as amended from time to time
(the "Certificate of Incorporation"). Subject to Section 6.2 hereof, the Company
shall deliver to Lakeside on the date hereof one or more certificates
(collectively, the "Certificates") representing the Shares used by the Company
to pay Lakeside for the Designated Services. The Certificates shall be issued in
the name of Lakeside Ventures LLC.
(b) Payment of Par Value. Subject to Section 6.1 hereof,
Lakeside shall, on the date hereof, pay to the Company, in immediately available
funds, $1,600 in cash to an account specified by the Company to Lakeside.
2. Closing.
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Subject to satisfaction of the conditions contained in Section
6 hereof, the closing of the transaction shall be held at the offices of Pavia &
Harcourt, 600 Madison Avenue, New York, New York 10022, on the date hereof, or
at such other time and place as the parties hereto shall agree. The closing
referred to in this Section 2 is hereinafter referred to as the "Closing" and
the date of the Closing is hereinafter referred to as the "Closing Date".
3. Representations and Warranties of the Company.
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The Company hereby makes the following representations and
warranties, each of which is true, correct and complete on the date hereof
(except where specifically provided otherwise), and each of which shall survive
the Closing Date and the transactions contemplated hereby as set forth in
Section 9.2 hereof.
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3.1 Organization, Standing and Power. The Company is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has full corporate power and authority and
possesses all governmental franchises, licenses, permits, authorizations and
approvals necessary to enable it to own, lease or otherwise hold its properties
and assets and to conduct its businesses as presently conducted, other than such
franchises, licenses, permits, authorizations and approvals the lack of which,
individually or in the aggregate, have not had and could not reasonably be
expected to have a material adverse effect (i) on the business, assets,
condition (financial or otherwise) or results of operations of the Company, or
(ii) on the ability of the Company to perform its obligations and to consummate
the transactions contemplated by this Agreement (a "Company Material Adverse
Effect").
3.2 Authority; Execution and Delivery; Enforceability.
The Company has full power and authority to execute this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery by
the Company of this Agreement and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on its part. The Company has duly executed and delivered this
Agreement and this Agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms.
3.3 No Conflicts; Consents. The execution and delivery by
the Company of this Agreement and the consummation of the transactions
contemplated hereby and compliance by Company with the terms hereof do not
conflict with, or result in any violation of or default (with or without notice
or lapse of time, or both) under, any provision of (i) the Certificate of
Incorporation or by-laws of the Company, (ii) any contract to which the Company
is bound or by which any of its properties or assets are bound or (iii) any
judgment, order or decree or statute, law, ordinance, rule or regulation
applicable to the Company or the properties or assets of the Company, other
than, in the case of clauses (ii) and (iii) above, any such items that,
individually or in the aggregate, have not had and could not reasonably be
expected to have a Company Material Adverse Effect. No consent of, or
registration, declaration or filing with, any governmental entity is required to
be obtained or made by or with respect to the Company in connection with the
execution, delivery and performance of this Agreement or the consummation by the
Company of the transactions contemplated hereby.
3.4 Authorization.
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(a) Corporate Action; Authorizations. All corporate
action on the part of the Company and its officers and directors necessary for
execution, delivery and performance of this Agreement, and the sale, issuance
and delivery of the Shares, has been taken. The Company has obtained any and all
consents, permits and waivers necessary or appropriate for consummation of the
transactions contemplated by this Agreement.
(b) Valid Issuance. The Shares, when issued, will be duly
authorized, validly issued, fully paid and nonassessable, will be free of any
lien, charge or encumbrance caused or created by the Company and no personal
liability shall attach to the ownership thereof; provided, however, that the
Shares may be subject to restrictions on transfer under state and/or federal
securities laws as set forth herein, and as may be required by future changes in
such laws.
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(c) No Preemptive Rights. Other than certain preemptive
rights in favor of Viacom, Inc., no person has any right of first refusal, first
offer, or any preemptive rights in connection with the issuance of Shares.
3.5 Capitalization.
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(a) Common Stock. The authorized capital stock of the
Company consists of (i) 1,000,000,000 shares of common stock (the "Common
Stock"), of which 24,939,178 shares of Common Stock were issued and outstanding
on February 5, 2001; since such date there has been no material change in the
number of shares of Common Stock issued and outstanding; and (ii) 1,000,000
shares of preferred stock, none of which were issued and outstanding on the date
hereof. All issued and outstanding shares have been duly authorized and validly
issued and are fully paid and nonassessable.
(b) Registered Stock. The Common Stock constitutes the
only class of equity securities of the Company or its subsidiaries registered or
required to be registered under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
3.6 SEC Reports. The Company has filed all required
forms, reports and documents required to be filed by it ("SEC Reports") with the
Securities and Exchange Commission ("SEC"), each of which has complied as to
form in all material respects with all applicable requirements of the Securities
Act of 1933, as amended (the "Securities Act"), and the Exchange Act, each as in
effect on the date such forms, reports and documents were filed.
3.7 Litigation, etc. There is no action, suit or
proceeding pending against the Company or to the Company's knowledge, threatened
against the Company, that questions the validity of this Agreement or the right
of the Company to enter into this Agreement or to consummate the transactions
contemplated hereby.
3.8 Acknowledgment. The Company acknowledges that
Lakeside reserves the right to pledge the Shares at any time.
4. Representations and Warranties of Lakeside.
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Lakeside hereby makes the following representations and
warranties, each of which is true, correct and complete on the date hereof
(except where specifically provided otherwise), and each of which shall survive
the Closing Date and the transactions contemplated hereby as set forth in
Section 9.2 hereof.
4.1 Organization, Standing and Power. Lakeside is a
limited liability company duly organized, validly existing and in good standing
under the laws of the State of Delaware and has full power and authority and
possesses all governmental franchises, licenses, permits, authorizations and
approvals necessary to enable it to own, lease or otherwise hold its properties
and assets and to conduct its businesses as presently conducted, other than such
franchises, licenses, permits, authorizations and approvals, the lack of which,
individually or in the aggregate, have not had and could not reasonably be
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expected to have a material adverse effect (i) on the business, assets,
condition (financial or otherwise) or results of operations of Lakeside, or (ii)
on the ability of Lakeside to perform its obligations and to consummate the
transactions contemplated by this Agreement (a "Lakeside Material Adverse
Effect").
4.2 Authority; Execution and Delivery; Enforceability.
Lakeside has full power and authority to execute this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery by
Lakeside of this Agreement and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary action on its
part. Lakeside has duly executed and delivered this Agreement and this Agreement
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms.
4.3 No Conflicts; Consents. The execution and delivery by
Lakeside of this Agreement and the consummation by it of the transactions
contemplated hereby and compliance by Lakeside with the terms hereof do not
conflict with, or result in any violation of or default (with or without notice
or lapse of time, or both) under, any provision of (i) the Certificate of
Formation or Operating Agreement of Lakeside, (ii) any contract to which
Lakeside is bound or by which any of its properties or assets are bound or (iii)
any judgment, order or decree or statute, law, ordinance, rule or regulation
applicable to Lakeside or the properties or assets of Lakeside, other than, in
the case of clauses (ii) and (iii) above, any such items that, individually or
in the aggregate, have not had and could not reasonably be expected to have a
Lakeside Material Adverse Effect. No consent of, or registration, declaration or
filing with, any governmental entity is required to be obtained or made by or
with respect to Lakeside in connection with the execution, delivery and
performance of this Agreement or the consummation by Lakeside of the
transactions contemplated hereby.
4.4 Limited Liability Company Action; Authorizations. All
action on the part of Lakeside and its managers and members necessary for
execution, delivery and performance of this Agreement has been taken. Lakeside
has obtained any and all consents, permits and waivers necessary or appropriate
for consummation of the transactions contemplated by this Agreement.
4.5 Knowledge and Experience. Lakeside acknowledges that
it can bear the economic risk of the Shares and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of the Shares. Lakeside has been furnished with and has had
access to such information as Lakeside considered necessary to make an informed
decision and determination as to the acquisition of the Shares. Lakeside is an
"accredited investor" as defined in Rule 501(a) promulgated under the Securities
Act or is an entity comprised solely of accredited investors.
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4.6 Not Organized to Purchase. Lakeside has not been
organized solely for the purpose of purchasing the Shares.
4.7 Litigation, etc. There is no action, suit or
proceeding pending against Lakeside or to Lakeside's knowledge, threatened
against Lakeside, that questions the validity of this Agreement or the right of
Lakeside to enter into this Agreement or to consummate the transactions
contemplated hereby.
5 Restrictions on Transfer Imposed by the Securities
Act.
5.1 Legends, Etc.
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(a) Legends. Each Certificate representing the Shares
shall be endorsed with the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND
ARE "RESTRICTED SECURITIES" WITHIN THE MEANING OF RULE 144 UNDER THE
ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE
TRANSFERRED, EXCEPT (i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SHARES UNDER THE ACT, (ii) IN COMPLIANCE WITH THE RESALE
LIMITATIONS OF RULE 144 UNDER THE ACT, OR (iii) PURSUANT TO AN
APPLICABLE EXEMPTION FROM REGISTRATION UNDER THE ACT AND, IN THE CASE
OF (ii) AND (iii), SUBJECT TO AN OPINION OF COUNSEL, SATISFACTORY TO
THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED AS TO SAID SALE,
OFFER OR TRANSFER.
(b) Blue Sky Law. Each Certificate may also contain any
other legends required by applicable state blue-sky laws.
5.2 Removal of Legend and Transfer Restrictions. Any
legend endorsed on a Certificate pursuant to Sections 5.1(a) and/or 5.1(b) shall
be removed, and the Company shall issue a Certificate without such legend to the
holder of such securities (a) if such securities are registered and sold
pursuant to an effective registration statement under the Securities Act and a
prospectus meeting the requirements of Section 10 of the Securities Act is
available and delivered in connection with such sale or (b) if such holder
satisfies the requirements of Rule 144(k) of the Securities Act.
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5.3 Rule 144. Lakeside is aware of the adoption and
requirements of Rule 144 by the SEC promulgated under the Securities Act, which
permits limited public resales of securities acquired in a nonpublic offering,
subject to the satisfaction of certain conditions. Lakeside understands that
under Rule 144, the conditions include, among other things, the availability of
certain current public information about the issuer and the resale occurring not
less than one year after the party has purchased and fully paid for the
securities to be sold, certain limitations on the volume of shares to be offered
and sold in any three-month period, certain requirements as to manner of resale
and certain notice of sale filing requirements with the SEC.
6. Conditions to Closing.
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6.1 Conditions to Lakeside's Obligations. The obligations
of Lakeside to accept the Shares at the Closing are subject to the fulfillment
to its satisfaction, on or prior to the Closing Date, of the following
conditions, any of which may be waived by Lakeside in its sole discretion:
(a) Truth of Representations and Warranties; Performance of
Obligations. The representations and warranties made by the Company in
Section 3 hereof shall be true, correct and complete on the Closing
Date; the Company shall have performed all obligations and conditions
herein required to be performed or observed by it.
(b) State Securities Law. The sale of the Shares shall have
been qualified with applicable state's securities law as required, and
evidence of all such qualifications shall have been furnished to
Lakeside's counsel.
(c) Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such
transactions shall be reasonably satisfactory in substance and form to
Lakeside and its counsel, and Lakeside and its counsel shall have
received all such counterpart originals or certified or other copies of
such documents as they may reasonably request.
(d) Opinion of Counsel. The Company shall have delivered to
Lakeside an opinion of counsel to the Company dated as of the Closing
Date, substantially in the form of Exhibit B hereto.
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6.2 Conditions to Obligations of the Company. The
obligations of the Company to issue and deliver the Shares at the Closing are
subject to the fulfillment to its satisfaction, on or prior to the Closing Date,
of the following conditions, any of which may be waived by the Company in its
sole discretion:
(a) Truth of Representations and Warranties; Performance of
Obligations. The representations and warranties made by Lakeside in
Section 4 hereof shall be true, correct and complete on the Closing
Date; Lakeside shall have performed all obligations and conditions
herein required to be performed or observed by it.
(b) Board Approval. The board of directors of the Company
shall have approved and authorized the transactions contemplated by
this Agreement.
(c) Proceedings and Documents. All limited liability company
and other proceedings in connection with the transactions contemplated
by this Agreement and all documents and instruments incident to such
transactions shall be reasonably satisfactory in substance and form to
the Company and its counsel, and the Company and its counsel shall have
received all such counterpart originals or certified or other copies of
such documents as they may reasonably request.
7. Additional Agreements of the Company.
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7.1 Right of First Negotiation and Last Refusal.
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(a) Notice of Transaction. In the event that the Company
intends to enter into a subsequent transaction in which it will exchange its or
its subsidiaries' securities for services similar to the Designated Services to
be provided by Lakeside under this Agreement (each, a "Transaction"), at any
time within one (1) year from the date of Closing, the Company shall provide a
written notice thereof to Lakeside (the "Notice of Transaction"). Lakeside shall
have the exclusive right of first negotiation with respect to such Transaction
for a period of ten (10) Business Days after the receipt of such Notice of
Transaction by Lakeside. If Lakeside and the Company are unable, in good faith,
to reach an agreement regarding the terms and conditions of such Transaction
within such ten (10) Business Day period, then the Company shall have the right
to negotiate the terms and conditions of the Transaction with a third party. The
foregoing right of first registration shall not apply to any transactions
between the Company and Viacom/CBS.
(b) Notice of Offer. Notwithstanding Section 7.1(a)
above, in the event the Company receives a bona fide offer from a third party
with respect to a Transaction, then prior to entering into such Transaction, the
Company shall provide written notice to Lakeside, setting forth the terms and
conditions of the third-party offer (the "Notice of Offer"). Lakeside shall have
five (5) Business Days from the receipt of such Notice of Offer to match the
terms of the Notice of Offer. If Lakeside offers to match the Notice of Offer,
then Lakeside and the Company shall enter into such Transaction on such terms.
The foregoing matching right shall not apply to any transactions between the
Company and Viacom/CBS.
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7.2. "Piggyback" Registration.
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(a) Registrable Securities. If at any time or from time
to time, the Company shall determine to register shares of Common Stock for its
own account or the account of any of its stockholders, other than a registration
on Form S-1 or S-8 relating solely to employee stock option or purchase plans,
or a registration on Form S-4, or any successor to such forms, which does not
include substantially the same information as would be required to be included
in a registration statement covering the sale of Registrable Securities (as
defined below), the Company will:
(i) promptly give to Lakeside written notice thereof; and
(ii) include in such registration, and in any underwriting
involved therein, all the Registrable Securities specified in a written
request or requests, made within twenty (20) days after receipt of such
written notice from the Company, by Lakeside, except as set forth in
Section 7.2(b) below.
For purposes hereof, "Registrable Securities" means (i) any
and all shares of Common Stock issued to Lakeside pursuant to this Agreement;
and (ii) any and all shares of Common Stock issued in respect of the securities
referred to in the foregoing Clause (i) as a result of a stock split, dividend,
recapitalization or the like, which has not been sold to the public. As to any
particular Registrable Securities, such securities shall cease to be
"Registrable Securities" when (w) a registration statement registering such
securities under the Securities Act has been declared or ordered effective by
the SEC and such securities have been sold or otherwise transferred by the
holder thereof pursuant to and in accordance with the plan of distribution with
respect to such securities disclosed in the prospectus (compliant with Rule
424(b) under the Securities Act) forming part of such registration statement;
(x) such securities have been sold in accordance with the resale requirements of
Rule 144 (or any successor rule or provision) adopted by the SEC under the
Securities Act; (y) such securities shall have been transferred and new
certificates evidencing such securities without legends restricting further
transfer shall have been delivered by the Company; subsequent public
distribution of such securities shall neither require registration under the
Securities Act nor qualification (or any similar filing) under any state
securities or "blue sky" law then in effect; or (z) such securities no longer
shall be issued and outstanding.
(b) Underwritten Public Offer. If the registration as to
which the Company gives notice is in respect of a registered underwritten public
offering the Company shall so advise Lakeside as a part of the written notice
given pursuant to Section 7.2(a)(i). If the managing underwriter of an offering
of securities effected pursuant to this Section 7.2 reasonably shall determine
and advise the Company in writing that in its opinion the aggregate number of
Registrable Securities requested to be included in the Company's registration
statement creates a substantial risk that the proceeds or the price per share
that the Company (or in the case of a registration which does not include any
securities being offered or sold for the Company's own account, the person(s)
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for whose account the registration statement is filed) would receive pursuant to
the offering would be materially reduced or that the success of the offering
otherwise would be materially adversely affected, then the number of Registrable
Securities to be included in the Company's registration statement for the
account of Lakeside shall be reduced to the aggregate amount deemed appropriate
by such managing underwriter; provided, however, if securities are being offered
for the account of other persons or entities as well as the Company, then with
respect to the Registrable Securities intended to be included for the account of
Lakeside, the proportion by which the number of Registrable Securities intended
to be included by Lakeside is reduced shall not exceed the proportion by which
the number of securities intended to be registered by such other persons or
entities is reduced. If Lakeside disapproves of the terms of the underwriting,
it may elect to withdraw therefrom by written notice to the Company and the
managing underwriter. Any Registrable Securities excluded or withdrawn from such
underwriting shall be forthwith withdrawn from such registration.
7.3 Expenses of Registration. All registration expenses
incurred in connection with any registration, qualification or compliance
pursuant to Section 7.2 ("Registration Expenses") shall be borne solely by the
Company.
7.4 Registration Procedures. In the case of each
registration, qualification or compliance effected by the Company pursuant to
this Agreement, the Company will keep Lakeside advised in writing as to the
initiation of each registration, qualification and compliance and as to the
completion thereof. At its expense the Company will:
(a) Prepare and file with the SEC a registration statement
with respect to the Registrable Securities and such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement.
(b) Furnish to Lakeside such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as
Lakeside may reasonably request in order to facilitate the disposition
of Registrable Securities owned by it.
(c) Use its best efforts to register and qualify the
securities covered by such registration statement under such other
securities or "blue sky" laws of such jurisdictions as shall be
reasonably requested by Lakeside, provided that the Company shall not
be required in connection therewith or as a condition thereto to
qualify to do business or, except as required under the Securities Act,
to file a general consent to service of process in any such states or
jurisdictions.
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(d) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange or U.S. automated
inter-dealer quotation system of a registered national securities
association on which similar securities issued by the Company are then
listed.
7.5 Indemnification. In connection with any registration
of Shares pursuant to Section 7.2 hereof the parties agree to enter into a
customary agreement providing for indemnification by each party with respect to
information supplied by such party in connection with such registration.
7.6 Rule 144 Reporting. From and after such time as
Lakeside is eligible under Rule 144 to effect resales of the Shares, the Company
hereby agrees to file with the SEC all periodic and other reports required to be
so filed by it under the Securities Act and the Exchange Act and the rules and
regulations thereunder (or, if the Company is not then required to file such
reports, it shall, as promptly as reasonably practicable after the written
request of Lakeside, make publicly available the requisite "Rule 15c2-11
information" in respect of the Company so long as and solely to the extent
necessary to permit resales of the Shares pursuant to Rule 144), and it shall
take such further reasonable action, to the extent required from time to time,
to enable Lakeside to resell Shares pursuant to Rule 144 without registration
under the Securities Act. Upon the reasonable request of Lakeside, the Company
shall as promptly as reasonably practicable deliver to Lakeside a written
statement as to whether it has complied with the foregoing information and
filing requirements.
7.7. Adjustment. The parties agree that the following
provisions shall apply in the event that Lakeside, in its sole discretion,
elects during the Service Period to enter into an agreement with a third party
(the "Counterparty") to hedge all or a portion of its position in the Shares
comprising the Payment (the "Counterparty Agreement"). In the event that the
Counterparty Agreement contains provisions requiring an adjustment to the
financial terms of such transaction if the Company consolidates or merges with,
or transfers all or substantially all of its Shares or assets to another entity
as a result of which the Shares cease to be publicly traded (a "Merger Event"),
and, in addition, as a result of such Merger Event, the Counterparty determines
that (x) the creditworthiness of the resulting, surviving or transferee entity
is materially weaker than that of the Company immediately prior to such Merger
Event, or (y) there is a diluting or concentrative effect on the theoretical
value of the Shares for purposes of the exercise, settlement or payment terms
applicable to such agreement, and as a result of such determination by the
Counterparty, Lakeside incurs additional costs or expenses to the Counterparty
in connection with such hedging transaction, then in such event, and provided a
Merger Event occurs within 24 months of the date hereof, Lakeside and the
Company agree to negotiate in good faith and agree upon an adjustment that will
compensate Lakeside for any such additional costs or expenses. Notwithstanding
the foregoing, Lakeside agrees that any adjustment hereunder shall not exceed
$50,000 in the aggregate, provided that either: (i) the securities into which
the Shares are exchanged as a result of the Merger Event are publicly traded on
the NASDAQ stock market or a national securities exchange both before and after
the Merger Event and the surviving entity of the Merger Event shall have a
market capitalization immediately prior to the Merger Event which exceeds the
market capitalization of the Company immediately prior to the Merger Event; or
(ii) in the case of a Merger Event where the surviving entity acquires the
Shares for cash consideration, the cash consideration per Share is equal to or
greater than $6.5625.
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8 Indemnification. Each party hereto (the "Indemnifying
Party") hereby indemnifies the other party hereto, and its respective officers,
directors, employees, stockholders, agents and representatives against, and
holds them harmless from, any loss, liability, claim, damage or expense
(including reasonable legal fees and expenses), as incurred (payable promptly
upon written request), arising from, in connection with or otherwise with
respect to any breach of any representation or warranty of the Indemnifying
Party contained in this Agreement or in any document delivered in connection
herewith or any breach of any covenant of the Indemnifying Party contained in
this Agreement.
9. Miscellaneous.
-------------
9.1 Waivers and Amendments. No amendment or waiver of any
provision of this Agreement, and no consent to any departure by Lakeside
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Company.
9.2 Survival. The representations and warranties made
herein shall survive the Closing of the transactions contemplated hereby until
the second anniversary of the Closing, notwithstanding any investigation made by
the party to whom such representations are made. All written statements as to
factual matters contained in any certificate or other instrument delivered by or
on behalf of either party pursuant hereto or in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by such
party hereunder as of the date of such certificate or instrument.
9.3 No Third-Party Beneficiaries. This Agreement is for
the sole benefit of the parties hereto and their permitted assigns and nothing
herein expressed or implied shall give or be construed to give to any person or
entity, other than the parties hereto and such assigns, any legal or equitable
rights hereunder.
9.4 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto. This Agreement and the rights hereunder may not be assigned,
transferred or conveyed by either party hereto without the prior written consent
of the other party hereto, which consent may not be unreasonably withheld or
delayed.
9.5 Entire Agreement. This Agreement, together with the
Exhibits hereto, constitutes the full and entire understanding and agreement
between the parties hereto with regard to the subjects hereof and thereof and
they supersede, merge and render void every other prior written and/or oral
understanding or agreement between the parties hereto with respect to such
subject matters.
12
<PAGE>
9.6 Notices. All notices and other communications
provided for hereunder shall be in writing (including by telecopier) and,
mailed, telecopied or delivered to the parties hereto at their respective
addresses indicated beneath their signatures hereto or, as to either party, at
such other address as shall be designated by such party in a written notice to
the other party complying as to delivery with the terms of this Section. All
such notices and other communications shall, when mailed or telecopied,
respectively, be effective when deposited in the mails, or telecopied, addressed
as aforesaid.
9.7 Severability. In case any provision of this Agreement
shall be found by a court of law of competent jurisdiction to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.
9.8 Brokers and Expenses, Etc.
-------------------------
(a) Brokers. Each of the parties hereto (i) represents
and warrants that it has retained no finder or broker in connection with the
transactions contemplated by this Agreement and (ii) hereby agrees to indemnify
and to hold the other party harmless from and against any liability for any
commission or compensation in the nature of a finder's fee to any broker or
other person or firm (and the costs and expenses of defending against such
liability or asserted liability) for which it or any of its employees or
representatives is responsible.
(b) Expenses. The Company and Lakeside shall each bear
its own expenses and legal fees in connection with the consummation of this
transaction.
(c) Taxes. The Company hereby agrees that it will pay,
and will save Lakeside harmless from, any and all liability with respect to any
stamp or similar taxes which may be determined to be payable in connection with
the execution and delivery and performance of this Agreement or any
modification, amendment or alteration of the terms or provisions of this
Agreement, and that it will similarly pay and hold Lakeside harmless from all
issue taxes in respect of the issuance of the Shares to Lakeside.
9.9 Governing Law. This Agreement shall be governed by
and construed in accordance with the law of the State of New York.
9.10 Captions. The table of contents and captions and
section headings appearing herein are included solely for convenience of
reference and are not intended to affect the interpretation of any provision of
this Agreement.
9.11 Execution in Counterpart. This Agreement may be
executed in any number of counterparts and by parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
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IN WITNESS WHEREOF, the parties hereby have duly executed and
delivered this Media Services Agreement effective as of the date first above
written.
LAKESIDE VENTURES LLC
By:
----------------------------
Name: Fred B. Tarter
Title: President
Address for Notices:
210 East 39th Street
New York, New York 10016
Attention: Fred B. Tarter, Manager
Telephone: 212-679-3800
Telecopier: 212-679-3816
HOLLYWOOD MEDIA CORP.
By:
----------------------------
Name: W. Robert Shearer
Title: Senior Vice President and General Counsel
Address for Notices:
2255 Glades Road, Suite 237W
Boca Raton, Florida 33431
Attention: Mitchell Rubenstein,
Chief Executive Officer
Telephone: (561) 998-8000
Telecopier: (561) 998-2974
<PAGE>
EXHIBIT A
DESCRIPTION OF DESIGNATED SERVICES
Designated Services: Lakeside shall have the obligation to pay the bills listed
below, whether for media, goods or services, as directed by the Company now or
in the future in accordance with the terms of this Agreement.
[See attached]
<PAGE>
EXHIBIT B
FORM OF COMPANY COUNSEL OPINION
</TEXT>
</DOCUMENT>