Warrant to Purchase Stock - Hollywood Media Corp. and Velocity Investment Partners Ltd.
THIS WARRANT IS ISSUED IN REPLACEMENT OF THAT CERTAIN WARRANT ISSUED UNDER
CERTIFICATE NO. W-A-2 DATED MAY 1,2002 WHICH HAD AN EXERCISE PRICE OF $6.44.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE (AND, AS OF THE DATE OF ORIGINAL
ISSUANCE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE, ANY UNDERLYING
SECURITIES) HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), OR ANY OTHER APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED
IN RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND SUCH SECURITIES LAWS. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE OR ANY SECURITIES ISSUABLE UPON THE EXERCISE HEREOF MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (A) TO HOLLYWOOD
MEDIA CORP. (THE "COMPANY") OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO RULE 144
UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT
TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT. THE HOLDER OF THIS CERTIFICATE AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS SECURITY OR ANY SECURITY ISSUED UPON EXERCISE HEREOF IS
TRANSFERRED (UNLESS SUCH SECURITY IS TRANSFERRED PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT) A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND IN CONNECTION WITH ANY PROPOSED TRANSFER PURSUANT TO
CLAUSES (B), (C) OR (D) ABOVE, THE COMPANY MAY REQUIRE THAT THE TRANSFEROR
FURNISH IT WITH AN OPINION OF COUNSEL CONFIRMING THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE RESPECTIVE MEANINGS ASSIGNED
TO THEM IN REGULATION S UNDER THE SECURITIES ACT.
WARRANT
to Purchase Shares of Common Stock of
HOLLYWOOD MEDIA CORP.
Certificate No. W-A-3
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THIS IS TO CERTIFY THAT, VELOCITY INVESTMENT PARTNERS LTD., or
its registered assigns, is entitled to purchase in whole or in part from time to
time from
<PAGE>
HOLLYWOOD MEDIA CORP., a Florida corporation (the "Company"), at any time up to
5:00 p.m., New York time, on May 1, 2006 (the "Expiration Date"), 177,524 shares
of Common Stock, par value $0.01, of the Company (the "Common Stock") at a
purchase price of $5.25 per share of Common Stock (the "Exercise Price", as
adjusted from time to time pursuant to Sections 2 and 4 below), subject to the
terms and conditions herein. Each exercise made hereunder must be for a minimum
of the lesser of (x) one thousand (1,000) shares of Common Stock and (y) the
entire remaining number of shares of Common Stock covered by this Warrant. All
capitalized terms used herein without definition shall have the respective
meanings assigned thereto in the Securities Purchase Agreement, dated as of
April 25, 2001 (the "Securities Purchase Agreement"), entered into among the
Company, Societe Generale ("SG") and Velocity Investment Partners, Ltd.
("Velocity") (SG and Velocity, together the `Purchasers").
SECTION 1. Exercise of Warrant. (a) At any time until 5:00
p.m., New York time, on the Expiration Date, the registered holder of this
Warrant (the "Holder") may exercise this Warrant, on one or more occasions, in
whole or in part, by delivering to the Company, (a) a written notice of the
Holder's election to exercise this Warrant in substantially the form of Annex A
hereto, which notice (the "Exercise Notice") shall specify the number of shares
of Common Stock to be purchased and may be delivered by facsimile transmission,
(b) a certified or bank check or checks payable to the Company, or by wire
transfer of immediately available funds, in an aggregate amount equal to the
aggregate Exercise Price for the number of shares of Common Stock as to which
this Warrant is being exercised (unless the Holder elects to effect a Cashless
Exercise (as hereinafter defined) pursuant to this Section 1) and (c) this
Warrant. Subject to applicable law, in the event the Holder may resell shares of
Common Stock acquired upon exercise of this Warrant without restriction pursuant
to an effective registration statement or otherwise, the Company shall cause the
transfer agent with respect to its Common Stock, which transfer agent is
participating in the Depositary Trust Company ("DTC") Fast Automated Securities
Transfer ("EAST") program, to electronically transmit the shares of Common Stock
issuable to the Holder upon exercise of this Warrant by crediting the account of
the Holder's prime broker with DTC through DTC's Deposit Withdrawal Agent
Commission ("DWAC") system, within three (3) business days after exercise of
this Warrant by the Holder. In the event the Holder otherwise elects in writing,
however, or such shares of Common Stock can not be resold without restriction,
the Company shall, as promptly as practicable and in any event within three (3)
business days after exercise of this Warrant by the Holder, cause the transfer
agent to deliver to the Holder a stock certificate or certificates representing
the aggregate number of shares of Common Stock issuable to the Holder as a
result of such exercise. The stock certificate or certificates representing
shares of Common Stock so delivered shall be in such denominations as may be
specified in the Exercise Notice and shall be registered in the name of the
Holder or, subject to compliance with Section 9.03 below, such other name or
names as shall be designated in such Exercise Notice.
(b) Shares of Common Stock shall be deemed to have been issued
and the Holder or, subject to compliance with Section 9.03 below, any other
Person so designated to be named therein shall he deemed to have become a Holder
of record of such shares, including, to the extent permitted by law, the right
to vote such shares or to consent or to receive notice as a stockholder, as of
the date of the date of receipt of the Exercise Notice; provided that the
payment of the Exercise Price is received by the Company within twenty-four
hours of receipt of the Exercise Notice and this Warrant is received by the
<PAGE>
Company within three (3) business days of receipt of the Exercise Notice. If
this Warrant shall have been exercised only in part, the Company shall, at the
time of delivery of shares of Common Stock, execute and deliver to the Holder a
new Warrant evidencing the rights of the Holder to purchase the shares of Common
Stock represented by the unexercised portion of this Warrant, which new Warrant
shall in all other respects be identical to this Warrant, or, if the Company
elects, it shall make appropriate notation on this Warrant and the same returned
to the Holder.
(c) Upon exercise of this Warrant, in whole or in part, the
Holder may elect, only at such time as there shall not be an effective
registration statement covering the resale of shares of Common Stock to be
issued upon exercise of this Warrant, to receive a reduced number of shares of
Common Stock in lieu of tendering the Exercise Price in cash ("Cashless
Exercise"). In such case, the number of shares of Common Stock to be issued to
the holder shall be computed using the following formula:
X=Y (A-B)
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A
where: X = the number of shares of Common Stock to be issued to the
Holder;
Y = the number of shares of Common Stock for which an election
to exercise under this Warrant has been made;
A =The Market Price (as hereinafter defined) of one share of
Common Stock on the trading day immediately prior to the date
that the Exercise Notice is duly surrendered to the Company
for full or partial exercise; and
B = the Exercise Price.
The "Market Price" per share of Common Stock or any other
security at any date means (i) the average closing sale price for such security
for the five (5) consecutive trading days immediately prior to (but excluding)
the date of determination on The Nasdaq Stock Market, Inc., or such other U.S.
national securities exchange, as reported by The Nasdaq Stock Market, Inc. or,
if not so reported by The Nasdaq Stock Market, Inc., the average of the high bid
and low asked quotations for one share of such security as reported by the
National Quotations Bureau Incorporated or similar organization for such five
consecutive trading days, (ii) if the closing price for such security cannot be
calculated in the manner specified in clause (i) at the relevant time, the fair
market value of one share of such security as of the date of determination as
determined in good faith by the Board of Directors of the Company.
(d) All shares of Common Stock issuable upon the exercise of
this Warrant shall, upon payment therefor in accordance herewith, be duly and
validly issued, fully paid and nonassessable and free and clear of any liens
(unless created by or through the Holder of this Warrant). The Company shall not
be required to issue a fractional share of Common Stock upon exercise of this
Warrant. As to any fraction of a share that the Holder would otherwise be
entitled to purchase upon such exercise, the Company shall pay a cash adjustment
in respect of such fraction in an amount equal to the same fraction of the
applicable Market Price determined in accordance with the foregoing.
<PAGE>
SECTION 2. Reset Adjustments.
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(a) If on January 30, 2002, Velocity holds at least 75% of the
Common Shares issued to it pursuant to the Securities Purchase Agreement and 75%
of any shares of Common Stock, if any, issued upon exercise of Velocity's "B"
Warrant (in each case, net of any sales of Common Stock sold short by such
Purchaser), then the Exercise Price shall be reset to $5.37.
(b) If on April 30, 2002, Velocity holds at least 75% of the
Common Shares issued to it pursuant to the Securities Purchase Agreement and 75%
of any shares of Common Stock, if any, issued upon exercise of Velocity's "B"
Warrant (in each case, net of any sales of Common Stock sold short by such
Purchaser) then the Exercise Price shall be reset to $4.51.
(c) Within twenty (20) Trading Days of each of January 30,
2002 and April 30. 2002, if Velocity is entitled to a reset under this Section
2, it shall deliver to the Company a certificate signed by an officer of
Velocity certifying (i) the number of shares of Common Shares and shares of
Common Stock issued upon the exercise of Velocity's "B" Warrant held by Velocity
as of January 30, 2002 and April 30, 2002, as applicable, and (ii) Velocity's
short position, if any, with respect to the Common Stock as of January 30, 2002
and April 30, 2002, as applicable. Any shares redeemed pursuant to Section 2.02
(a) of the Securities Purchase Agreement shall not be included in any
calculation under this Section 2.
(d) Each of the reset Exercise Prices set forth in Sections
2(a) and (b) shall be adjusted consistent with the principals set forth in
Section 4 herein.
SECTION 3. Transfer, Division and Combination. Subject to
Section 9.03 hereof, transfer of this Warrant and all rights hereunder, in whole
or in part, shall be registered on the books of the Company, upon surrender of
this Warrant to the Company, together with a written assignment of this Warrant,
substantially in the form of Annex B hereto, duly executed by the Holder or its
agent or attorney. Upon such surrender, the Company shall, subject to Section
9.04 hereof, (a) execute and deliver a new Warrant or Warrants in the name of
the assignee or assignees and in the denominations specified in such instrument
of assignment, (b) issue to the assignor a new Warrant evidencing the portion of
this Warrant not so assigned and (c) promptly cancel this Warrant.
SECTION 4. Antidilution Provisions.
-----------------------
4.01 Changes in Common Stock. In the event that at any time or
from time to time the Company shall, (i) pay a dividend or make a distribution
on its Common Stock in shares of Common Stock or other shares of capital stock
of the Company, (ii) subdivide its outstanding shares of Common Stock into a
larger number of shares of Common Stock, (iii) combine its outstanding shares of
Common Stock into a smaller number of shares of Common Stock or (iv) increase or
decrease the number of shares of Common Stock outstanding by reclassification of
its Common Stock, then the number of shares of Common Stock issuable upon
exercise of this Warrant immediately after the happening of such event shall be
adjusted so that, after giving effect to such adjustment, the Holder of this
Warrant shall be entitled to receive the number of shares of Common Stock upon
exercise of this Warrant that the Holder would have been entitled to receive had
<PAGE>
this Warrant been exercised immediately prior to the happening of such event (or
in the case of a dividend or distribution of shares of Common Stock, immediately
prior to the record date therefor). An adjustment made pursuant to this Section
4.01 shall become effective immediately after the distribution date, retroactive
to the record date therefor in the case of a dividend or distribution in shares
of Common Stock, and shall become effective immediately after the effective date
in the case of a subdivision, combination or reclassification.
4.02 Cash Dividends and Other Distributions. In the event that
at any time or from time to time the Company shall distribute to holders of
Common Stock (i) any dividend or other distribution (including any dividend or
distribution made in connection with a consolidation or merger in which the
Company is the surviving corporation) of cash, evidences of its indebtedness,
shares of its capital stock or any other assets or securities or (ii) any
options, warrants, securities or other rights to subscribe for or purchase any
of the foregoing (other than (A) any dividend or distribution described in
Section 4.01, (B) any rights, options, warrants or securities described in
Section 4.03 or Section 4.04 and (C) any cash dividends or other cash
distributions made to holders of Common Stock from current or retained earnings,
provided that such dividends do not exceed $500,000 in any fiscal year), then
the number of shares of Common Stock that may be acquired upon exercise of this
Warrant immediately prior to such record date for any such distribution shall be
increased to a number determined by multiplying the number of shares of Common
Stock that may be acquired upon the exercise of this Warrant immediately prior
to such record date for any such distribution by a fraction, the numerator of
which shall be the Market Price per share of Common Stock as of such record date
and the denominator of which shall be such Market Price per share of Common
Stock less the sum of (x) the amount of cash, if any, distributed per share of
Common Stock and (y) the then fair value (as determined in good faith by the
Company's Board of Directors, whose determination shall be evidenced by a board
resolution that will be sent to Holders) of the portion, if any, of the
distribution applicable to one share of Common Stock consisting of evidences of
indebtedness, shares of stock, securities, other property, warrants, options or
subscription or purchase rights; and the Exercise Price shall be decreased to an
amount determined by dividing the Exercise Price immediately prior to such
record date by the above fraction. Such adjustments shall be made, and shall
only become effective, whenever any such distribution is made; provided,
however, that the Company is not required to make an adjustment pursuant to this
Section 4.02 if at the time of such distribution the Company makes the same
distribution to Holders of Warrants as it makes to holders of Common Stock pro
rata based on the number of shares of Common Stock for which such Warrants are
exercisable. No adjustment shall be made pursuant to this Section 4.02 if such
adjustment would have the effect of decreasing the number of shares of Common
Stock issuable upon exercise of this Warrant or increasing the Exercise Price.
4.03 Issuance of Common Stock. In the event that at any time
or from time to time the Company shall (other than (i) upon the exercise,
exchange or conversion of any securities of the Company that are exercisable or
exchangeable for, or convertible into, shares of Common Stock and that are
outstanding as of the date of the issuance of this Warrant (the "Initial
Issuance Date"), or (ii) upon the exercise of stock options granted under or
pursuant to any stock option plan of the Company that has been approved by its
Board of Directors), issue shares of Common Stock for a consideration per share
<PAGE>
that is less than the lesser of the then effective Exercise Price or the Market
Price per share of Common Stock on the date of issuance, the number of shares of
Common Stock that may be acquired upon the exercise of this Warrant immediately
after such issuance shall be increased by multiplying the number of shares of
Common Stock issuable upon exercise of this Warrant immediately prior to such
issuance by a fraction, the numerator of which shall be the sum of (A) the
number of shares of Common Stock outstanding on the date of such issuance plus
(B) the number of additional shares of Common Stock to be issued and the
denominator of which shall be the sum of (X) the number of shares of Common
Stock outstanding on the date of such issuance plus (Y) the number of shares of
Common Stock that the aggregate offering price of the total number of shares of
Common Stock so to be issued would purchase at the lesser of the then effective
Exercise Price or such Market Price. In the event of any such adjustment, the
Exercise Price shall be decreased to an amount determined by dividing the
Exercise Price immediately prior to such issuance by the aforementioned
fraction. Such adjustment shall be made, and shall only become effective,
whenever such shares are issued. No adjustment shall he made pursuant to this
Section 4.03 if such adjustment would have the effect of decreasing the number
of shares of Common Stock issuable upon exercise of this Warrant or increasing
the Exercise Price. In case the consideration for any shares of Common Stock may
be paid in whole or in part in a form other than cash, the value of such
consideration shall be as determined in good faith by the Board of Directors of
the Company. Such adjustment shall be made successively whenever the date of
such issuance is fixed.
4.04 Issuance of Convertible Securities. In the event that at
any time or from time to time the Company shall issue rights, options or
warrants to acquire, or securities convertible or exchangeable into, Common
Stock (other than the issuance by the Company of stock options under or pursuant
to any stock option plan of the Company that has been approved by its Board of
Directors) entitling the holders thereof to acquire shares of Common Stock at an
exercise or conversion price per share that (when aggregated, as applicable,
with the price or other consideration received for any such rights, options or
warrants exercisable for Common Stock or for such securities convertible or
exchangeable into Common Stock) for consideration per share that is less than
the lesser of the then effective Exercise Price or Market Price on the date of
issuance of such Common Stock, the number of shares of Common Stock that may be
acquired upon exercise of this Warrant immediately after such issuance shall be
increased by multiplying the number of shares of Common Stock that may be
acquired upon exercise of this Warrant immediately prior to such issuance by a
fraction, the numerator of which shall be the sum of (A) the number of shares of
Common Stock outstanding on the date of such issuance plus (B) the number of
additional shares of Common Stock to be issued (or into which the convertible or
exchangeable securities so to be issued are initially convertible), and the
denominator of which shall be the sum of (X) the number of shares of Common
Stock outstanding on the date of such issuance plus (Y) the number of shares of
Common Stock that the aggregate offering price of the total number of shares of
Common Stock so to be issued (or the aggregate issue price of the convertible or
exchangeable securities so to be issued) would purchase at the lesser of the
then Effective Exercise Price or such Market Price on the date of issuance of
such convertible securities. In the event of any such adiustment, the Exercise
Price shall be decreased to a number determined by dividing the Exercise Price
immediately prior to such issuance by the aforementioned fraction. Such
<PAGE>
adjustment shall be made, and shall only become effective, whenever such rights,
options, warrants or securities are issued. No adjustment shall be made pursuant
to this Section 4.04 if such adjustment would have the effect of decreasing the
number of shares of Common Stock issuable upon exercise of this Warrant or
increasing the Exercise Price. In case the price for such securities may be paid
in a consideration part or all of which shall be in a form other than cash, the
value of such consideration shall be as determined in good faith by the Board of
Directors of the Company. Such adjustment shall be made successively whenever
the date of such issuance is fixed.
4.05 Combination; Liquidation. (a) Except as provided in
Section 4.05(b), in the event of a Combination (as hereinafter defined), the
Holder shall have the right to receive upon exercise of this Warrant the kind
and amount of shares of capital stock or other securities or property that the
Holder would have been entitled to receive upon completion of or as a result of
such Combination had such Warrant been exercised immediately prior to such event
or to the relevant record date for any such entitlement. Unless paragraph (b) is
applicable to a Combination, the Company shall provide, as a condition to such
Combination, that the surviving or acquiring Person (the "Successor Company") in
such Combination will enter into an agreement confirming the Holders' rights
pursuant to this Section 4.05(a) and providing for adjustments, that shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section 3. The provisions of this Section 4.05(a) shall similarly apply to
successive Combinations involving any Successor Company.
A "Combination" means an event in which the Company
consolidates with or merges with or into another Person.
(b) In the event of (i) a Combination where consideration to
the holders of Common Stock in exchange for their shares is payable solely in
cash or (ii) the dissolution, liquidation or winding-up of the Company, the
Holder of this Warrant shall be entitled to receive, upon surrender of this
Warrant, such cash distributions on an equal basis with the holders of Common
Stock, as if this Warrant had been exercised immediately prior to such event,
less the product of the Exercise Price times the number of shares of Common
Stock with respect to which this Warrant was then exercisable.
In the event of any Combination described in this Section
4.05(b), the surviving or acquiring Person and, in the event of any dissolution,
liquidation or winding-up of the Company, the Company shall distribute as
promptly as practicable under the circumstances to the Holder upon surrender of
this Warrant, the funds, if any, necessary to pay the Holder the amounts to
which the Holder is entitled as described above.
4.06 Superseding Adjustment. Upon the expiration of any
rights, options, warrants or conversion or exchange privileges that resulted in
adjustments pursuant to this Section 4, if any thereof shall not have been
exercised, the number of shares of Common Stock issuable upon the exercise of
this Warrant shall be readjusted pursuant to the applicable section of Section 4
as if (i) the only shares of Common Stock issuable upon exercise of such rights,
options, warrants, conversion or exchange privileges were the shares of Common
Stock, if any, actually issued upon the exercise of such rights, options,
warrants or conversion or exchange privileges and (ii) shares of Common Stock
actually issued, if any, were issuable for the consideration actually received
by the Company upon such exercise plus the aggregate consideration, if any,
actually received by the Company for this issuance, sale or grant of all such
rights, options,warrants or conversion or exchange privileges whether or not
exercised and the Exercise Price shall be readjusted inversely; provided,
however, that no such readjustment shall have the effect of decreasing the
<PAGE>
number of shares of Common Stock issuable upon the exercise of this Warrant
below the number of shares of Common Stock issuable upon the exercise of this
Warrant, or increasing the Exercise Price to an amount below the Exercise Price
in effect, immediately prior to any adjustment made therein on account of such
issuance, sale or grant of such rights, options, warrants or conversion or
exchange privileges.
4.07 Minimum Adjustment. The adjustments required by the
preceding sections of this Section 4 shall be made whenever and as often as any
specified event requiring an adjustment shall occur, except that no adjustment
of the Exercise Price or the number of shares of Common Stock issuable upon
exercise of this Warrant that would otherwise be required shall be made unless
and until such adjustment either by itself or with other adjustments not
previously made increases or decreases by at least 1% the Exercise Price or the
number of shares of Common Stock issuable upon exercise of this Warrant
immediately prior to the making of such adjustment. Any adjustment representing
a change of less than such minimum amount shall be carried forward and made as
soon as such adjustment, together with other adjustments required by this
Section 4 and not previously made, would result in a minimum adjustment. For the
purpose of any adjustment, any specified event shall be deemed to have occurred
at the close of business on the date of its occurrence. In computing adjustments
under this Section 4, fractional interests in Common Stock shall be taken into
account to the nearest one-tenth of a share.
4.08 Notice of Adjustment. Whenever the Exercise Price or the
number of shares of Common Stock and other property, if any, issuable upon
exercise of the Warrants is adjusted, as herein provided, the Company shall
deliver to the Holder of this Warrant a certificate setting forth, in reasonable
detail, the event requiring the adjustment and the method by which such
adjustment was calculated (including a description of the basis on which (i) the
Company's Board of Directors determined the then fair value of any evidences of
indebtedness, other securities or property or warrants, options or other
subscription or purchase rights and (ii) the Market Price of the Common Stock
was determined, to the extent such determinations were required hereunder), and
specifying the Exercise Price and the number of shares of Common Stock issuable
upon exercise of this Warrant after giving effect to such adjustment.
4.09 Notice of Certain Transactions. In the event that the
Company shall propose to (a) pay any dividend payable in securities of any class
to the holders of its Common Stock or to make any other non-cash dividend or
distribution to the holders of its Common Stock, (b) offer the holders of its
Common Stock rights to subscribe for or to purchase any securities convertible
into shares of Common Stock or shares of stock of any class or any other
securities, rights or options, (c) issue to the holders of its Common Stock any
(i) shares of Common Stock, (ii) rights, options or warrants entitling the
holders thereof to subscribe for shares of Common Stock or (iii) securities
convertible into, or exchangeable or exercisable for, shares of Common Stock (in
the case of (i), (ii) and (iii), if such issuance or adjustment would result in
an adjustment hereunder), (d) effect any capital reorganization,
reclassification, consolidation or merger, (e) effect the voluntary or
involuntary dissolution, liquidation or winding-up of the Company or (f) make a
tender offer or exchange offer with respect to the Common Stock, the Company
shall within five (5) days after any such event send the Holder a notice of such
proposed action or offer unless the same is publicly announced. Such notice
shall, to the extent the same has not been publicly announced, specify the
record date for the purposes of such dividend, distribution or rights, or the
date such issuance or event is to take place and the date of participation
<PAGE>
therein by the holders of Common Stock, if any such date is to be fixed, and the
same has not been publicly announced and if the same would have any effect on
the Common Stock and on the number of shares of Common Stock, the number and
kind of any other shares of stock and other property issuable upon exercise of
this Warrant and the Exercise Price (after giving effect to any adjustment
pursuant to Section 4 that will be required as a result of such action), specify
such effect. Such notice shall be given as promptly as possible and (x) in the
case of any action covered by clause (a) or (b) above, at least 10 days prior to
the record date for determining holders of the Common Stock for purposes of such
action or (y) in the case of any other such action, at least twenty (20) days
prior to the date of the taking of such proposed action or the date of
participation therein by the holders of Common Stock, whichever shall be the
earlier. Notwithstanding anything contained herein to the contrary, the Company
shall not provide to the Holder any material non-public information in order to
satisfy its obligations pursuant to this Section 4.09.
4.10 Adjustment to Warrant Certificate. This Warrant
Certificate need not be changed because of any adjustment made pursuant to this
Section 4, and any Warrant issued after such adjustment may state the same
Exercise Price and the same number of shares of Common Stock issuable upon
exercise of the Warrant as are stated in this Warrant. The Company, however, may
at any time in its sole discretion make any change in the form of this Warrant
that it may deem appropriate to give effect to such adjustments and that does
not affect the substance of this Warrant, and any Warrant thereafter issued or
countersigned, whether in exchange or substitution for this Warrant or
otherwise, may be in the form as so changed.
SECTION 5. [Intentionally Omitted]
SECTION 6. Taking of Record; Stock and Warrant Transfer Books.
In the case of all dividends or other distributions by the Company to the
holders of its Common Stock with respect to which any provision hereof refers to
the taking of a record of such holders, the Company shall in each such case take
such a record as of the close of business on a business day.
SECTION 7. Expenses, Transfer Taxes and Other Charges. The
Company shall pay any and all expenses (other than transfer taxes) and other
charges, including all costs associated with the preparation, issue and delivery
of stock or warrant certificates, that are incurred in respect of the issuance
or delivery of shares of Common Stock upon exercise of this Warrant pursuant to
Section 1 hereof or in connection with any division or combination of this
Warrant pursuant to Section 3 hereof. The Company shall not, however, be
required to pay any tax that may be payable in respect of any transfer involved
in the issue and delivery of shares of Common Stock in a name other than that in
which this Warrant is registered, and no such issue or delivery shall be made
unless and until the Person requesting such issue has paid to the Company the
amount of any such tax, or has established, to the satisfaction of the Company,
that such tax has been paid.
<PAGE>
SECTION 8. No Voting Rights. This Warrant shall not entitle
the Holder to any voting or other rights as a stockholder of the Company.
SECTION 9. Miscellaneous.
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9.01 Office of Company. So long as any of this Warrant remains
outstanding, the Company shall maintain an office in the United States of
America where this Warrant may be presented for exercise, transfer, division or
combination as in this Warrant provided. Such office shall be at 2255 Glades
Road, Suite 237W Boca Raton, Florida or at the office of such registrar and
transfer agent as the Company may from time to time designate, unless and until
the Company shall designate and maintain some other office for such purposes and
give notice thereof to all Holders.
9.02 Notices Generally. Any notices and other communications
pursuant to the provisions hereof shall be sent in accordance with Section 7.03
of the Securities Purchase Agreement.
9.03 Restrictions on Transferability; Restriction on Exercise.
(a) The number of shares of Common Stock that may be acquired by the Holder upon
exercise pursuant to the terms hereof shall not exceed a number that, when added
to the total number of shares of Common Stock deemed beneficially owned by such
Holder (other than by virtue of the ownership of securities or rights to acquire
securities (including the Warrants) that have limitations on the Holder's right
to convert, exercise or purchase similar to the limitation set forth herein (the
"Excluded Shares")), together with all shares of Common Stock deemed
beneficially owned (not counting such affiliate's Excluded Shares) by the
Holder's "affiliates" (as defined Rule 144 of the Act) ("Aggregation Parties")
that would he aggregated for purposes of determining whether a group under
Section 13(d) of the Securities Exchange Act of 1934, as amended, exists, would
exceed 4.99% of the total issued and outstanding shares of the Company's Common
Stock (the "Restricted Ownership Percentage").
(b) The Holder covenants at all times on each day (each such
day being referred to as a "Covenant Day") as follows: During the balance of
such Covenant Day and the succeeding sixty-one (61) days (the balance of such
Covenant Day and the succeeding 61 days being referred to as the "Covenant
Period") such Holder will not acquire shares of Common Stock pursuant to any
right (including the exercise of the Warrants) existing at the commencement of
the Covenant Period to the extent the number of shares so acquired by such
Holder and its Aggregation Parties (ignoring all dispositions) would exceed:
<PAGE>
(x) the Restricted Ownership Percentage of
the total number of shares of Common Stock outstanding at the
commencement of the Covenant Period,
MINUS
(y) the number of shares of Common Stock owned by such
holder and its Aggregation Parties at the commencement of the
Covenant Period.
A new and independent covenant will be deemed to be given by
the holder as of each moment of each Covenant Day. No covenant will terminate,
diminish or modify any other covenant. The Holder agrees to comply with each
such covenant. This Section controls in the case of any conflict with any other
provision of the Transaction Documents.
The Company's obligation to issue shares of common stock upon
exercise of the Warrant B which would exceed such limits referred to in this
Section shall be suspended to the extent necessary until such time, if any, as
such Shares may be issued in compliance with such restrictions.
The provisions of this section shall be applicable and binding
on any successor Holder of this Warrant. This section may only be amended upon
the approval of the stockholders of the Company and the stockholders are deemed
third party beneficiaries of this section.
9.04 Assignment. This Warrant and the rights, duties and
obligations hereunder may not be assigned or delegated by the Company or any
Holder may not assign its rights hereunder, without the prior written consent of
the other party, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, no consent shall be required for a transfer by a
Holder to any of its Affiliates.
9.05 Saturdays, Sundays or Holidays. If the last appointed day
for the taking of any action or the expiration of any right required or granted
herein shall be a Saturday, Sunday or legal holiday, then such action may be
taken or such right may be exercised on the next succeeding day.
9.06 Governing Law. This Warrant shall be governed by, and
construed in accordance with, the law of the State of New York without giving
effect to conflicts of law principles thereof
9.07 Limitation of Liability. No provision hereof, in the
absence of affirmative action by the Holder to purchase shares of Common Stock,
and no mere enumeration herein of the rights or privileges of the Holder, shall
give rise to any liability of the Holder for the Exercise Price or as a
stockholder of the Company, whether such liability is asserted by the Company,
by any creditor of the Company or any other Person.
<PAGE>
IN WITNESS WHEREOF, the Company has duly executed this
Warrant. Dated: May 30. 2002
HOLLYWOOD MEDIA CORP.
By: /s/ Mitchell Rubenstein
------------------------------------------
Name: Mitchell Rubenstein
Title: Chairman and Chief Executive Officer
<PAGE>
ANNEX A
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ELECTION TO PURCHASE
(To Be Executed Upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the
right, represented by this Warrant, to receive _______ shares of Common Stock of
Hollywood Media Corp. and [herewith tenders payment of the Exercise Price for
such shares in the amount of $ _____ [hereby elects to effect a Cashless
Exercise] in accordance with the terms of this Warrant.
The undersigned requests that [certificates for such shares in
denominations of ___________ be registered in the name of _____________________
whose address is _______________________ and that such shares be delivered to
______________, whose address is ________________________]. [Such shares be
delivered to [the undersigned] [other person] electronically through DTC].
The undersigned represents and warrants that the number of
shares of Common Stock to be received pursuant to this Election to Purchase,
together with the shares of Common Stock beneficially owned by the undersigned
(and its affiliates) on the date of this Election to Purchase. if applicable. do
not exceed 4.9% of the outstanding shares of Common Stock of the Company (as set
forth in the Company's most recent filing with the Securities and Exchange
Commission unless the Company shall notify the Holder that a greater or lesser
number of shares is outstanding).
Capitalized terms used but not defined herein shall have the
respective meanings ascribed to them in the Warrant to which Election to
Purchase is attached.
[Name of holder]
By: _____________________
Name:
Title:
NOTE: The above signature(s) must
correspond with the name written
upon the face of this Warrant in
every particular, without
alteration or enlargement or any
change whatever.
Date: