EXHIBIT 10.37
AMENDED AND RESTATED
PARTNERSHIP AGREEMENT
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THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT (this "AGREEMENT"),
which shall be deemed effective as of November 1, 2002, is made and entered into
on November 21, 2002, by and between Hollywood Media Corp., a Florida
corporation (the "COMPANY"), and Xx. Xxxxxx X. Xxxxxxxxx ("XXXXXXXXX").
RECITALS:
1. The Company and Xxxxxxxxx are the sole partners under that certain
Partnership Agreement, dated as of October 1, 1994, as amended by Amendment No.
1 to Partnership Agreement dated as of December 1, 1994 (as amended, the
"ORIGINAL PARTNERSHIP AGREEMENT") with respect to the Florida general
partnership known as "Tekno Books" (the "PARTNERSHIP"), formed under the Florida
Uniform Partnership Act (now superceded by the Florida Revised Uniform
Partnership Act), for the purposes, and upon the terms and subject to the
conditions, set forth herein.
2. The Company and Xxxxxxxxx desire to amend and restate the Original
Partnership Agreement in its entirety as hereinafter set forth.
OPERATIVE PROVISIONS:
NOW, THEREFORE, in consideration of the mutual promises, covenants,
agreements and undertakings of the parties hereinafter set forth and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be bound legally, hereby amend
and restate the Partnership Agreement in its entirety, and otherwise agree, as
follows:
ARTICLE 1
DEFINITIONS
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Section 1.1 Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
"Act" means the Florida Revised Uniform Partnership Act, as the same
may be amended from time to time.
"Additional Capital Contribution" means any capital contribution
described in Section 3.3.
"Administrative Partner" means the Company.
"Affiliate" means, in respect of any Person, a Person directly, or
indirectly through one or more intermediaries, controlling, controlled by or
under common control with such Person. For purposes of this definition, the term
"control" and its derivative forms refer to the ownership or control of
securities of any Person ordinarily (and not merely upon the occurrence of an
event of default, an event of noncompliance or other similar event) having the
right to cause the election of a majority of such Person's board of directors or
analogous governing body. The Partnership and the Partners shall not, as such,
be deemed to be each other's Affiliates.
"Agreement" means this Partnership Agreement, as the same may be
amended from time to time.
"Bankruptcy" of a Person means (a) the commencement of a voluntary case
by such Person under the Bankruptcy Code of 1978, as amended from time to time
(the "Bankruptcy Code"), (b) the commencement of an involuntary case against
such Person under the Bankruptcy Code if such case is not dismissed within 180
days of its commencement or (c) the commencement of state receivership,
insolvency or similar proceedings against such Person either (i) voluntarily or
(ii) involuntarily (and not dismissed within 180 days of commencement).
"Budget" shall have the meaning set forth in SECTION 6.6.
"Business" means the business of creating, writing, developing and/or
packaging books and other publications, and such other business as approved by
the Partners or the Management Committee as provided herein.
"Business Day" means each day, other than Saturday, Sunday and days on
which banks in Boca Raton, Florida are required or permitted to be closed for
business.
"Capital Account" means the Capital Account maintained for each Partner
pursuant to SECTION 3.4.
"Capital Contributions" means, as to each or any Partner, the sum of
such Partner's Capital Contributions and Additional Capital Contributions, if
any, and any and all other contributions by such Partner or its predecessor
(other than loans to the Partnership by such Partner), accepted to the capital
of the Partnership.
"Chief Executive Partner" means initially Xxxxxxxxx, and thereafter any
successor to Xxxxxxxxx in such office as appointed by the Administrative Partner
subject to the provisions of SECTION 6.8 AND 9.2 below.
"Code" means the Internal Revenue Code of 1986, as the same may be
amended from time to time.
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"Current Cash Operating Expenditures" includes the following:
(i) all operating expenses of the Partnership;
(ii) any cash paid by the Partnership for the acquisition of
any capital asset;
(iii) all payments of principal and interest in respect of any
indebtedness of the Partnership (other than loans to
Partners);
(iv) any cash expended by the Partnership for taxes, insurance
or assessments; and
(v) any reserves deemed necessary by the Chief Executive
Partner consistent with past practices.
"Fiscal Year" means the annual accounting period of the Partnership,
which is currently the calendar year, except that the last Fiscal Year shall end
upon the termination of the Partnership.
"Gross Operating Cash Receipts" means all cash received by the
Partnership, including without limitation all proceeds of loans extended to the
Partnership by any and all lenders, but not including capital contributions or
proceeds derived from the liquidation of the Partnership.
"Key Man Life Insurance" means life insurance on the life of the Chief
Executive Partner, the benefits of which are payable to Partner(s) other than
Xxxxxxxxx.
"Key Man Disability Insurance" means disability insurance, the benefits
of which would be payable to Partner(s) other than Xxxxxxxxx if the Chief
Executive Partner becomes disabled and unable to perform the duties of the Chief
Executive Partner for one consecutive year.
"Management Committee" means the committee described in SECTION 6.1.
"Net Operating Cash Flow" means, for any period during which the
Partnership is in existence, the Gross Operating Cash Receipts of the
Partnership for the applicable period, less the Current Cash Operating
Expenditures of the Partnership for the same period.
"Partner" means, individually, the Company or Xxxxxxxxx.
"Partners" means, collectively, the Company and Xxxxxxxxx.
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"Partnership" means the partnership formed pursuant to this Agreement.
"Percentage Interest" (and, in plural, "Percentage Interests") means
the percentage ownership interest of a Partner in the Partnership, as set forth
in SECTION 3.1.1. The sum of all Percentage Interests shall equal one hundred
percent (100%).
"Person" means any individual, corporation, partnership, trust or other
legal entity.
"Prime Rate" shall mean the rate of interest publicly announced from
time to time by X.X. Xxxxxx Xxxxx & Co. (or its successor, or if such
institution ceases to exist or to publish a prime rate, then such other
institution as chosen by the Management Committee), as its prime lending rate
for unsecured commercial loans within the United States.
"Property" means Capital Contributions, Additional Capital
Contributions and any other assets and/or property subsequently acquired from
the Partners or any other Person or in the conduct of the Business.
ARTICLE 2
FORMATION, PURPOSES, DURATION
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Section 2.1 Formation and Name,
(a) Formation. The Partners hereby enter into this
Agreement to continue the Partnership pursuant to the Act for the limited
purposes and scope set forth in this Agreement. The Partnership shall be
governed by the Act, except as expressly provided herein to the contrary.
(b) Name. The Partnership shall carry on the Business of
the Partnership under the name Tekno Books; the Business of the Partnership
shall be conducted solely under such name (or such other names as the Partners
shall agree in writing); and all assets of the Partnership shall be held under
such name.
(c) Principal Office of Partnership. The principal office
of the Partnership shall be located at 0000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxx,
Xxxxxxxxx 00000 or at such other location within the continental United States
as chosen by Xxxxxxxxx, so long as he is the Chief Executive Partner, or the
Management Committee, thereafter.
Section 2.2 Purposes.
The Partnership is organized for the purpose of engaging in
the Business of creating, writing, developing and/or packaging books and other
publications, and deriving income and gain therefrom. The Partnership shall have
the power and right to engage in any and all activities and transactions as the
Management Committee may approve in connection therewith, including without
limitation, the power:
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2.2.1 To acquire the Property and hold the same as the assets
of the Partnership.
2.2.2 To improve and develop the Property (or any part or
portion thereof).
2.2.3 To own, develop, maintain, improve, license, manage,
develop, sell, mortgage and operate all or any portion
of the Property.
2.2.4 To sell and market the Property or any part or portion
thereof.
2.2.5 To enter into joint ventures and/or partnerships with
other entities in connection with the ownership, sale,
marketing, operation and development of the Property or
any part or portion thereof.
2.2.6 To engage in such other businesses or activities, or to
do such other things as may be necessary or incidental
to the ownership, development, improvement operation,
licensing, sale, marketing, management, acquisition,
financing or refinancing of the Property, or any part or
portion thereof.
This Partnership is created solely for the purposes specified in this
SECTION 2.2, and this Agreement shall not be deemed to create a general
partnership between the Partners with respect to any activities other than the
activities and purposes specified herein.
Section 2.3 Limitation on Authority of Partners. Except as otherwise
expressly and specifically provided in this Agreement, no Partner shall have any
authority to bind or act for, or assume any obligations or responsibility on
behalf of any other Partner or the Partnership. Neither the Partnership nor any
Partner shall be responsible or liable for any indebtedness or obligation of any
other Partner incurred or arising either before or after the execution of this
Agreement (including without limitation any indebtedness or obligation relating
to the Property incurred or arising either before or after the execution of this
Agreement), except for those obligations of the Partnership existing as of the
date hereof incurred pursuant to the Original Partnership Agreement. No other
business shall be conducted by the Partnership without the prior written
approval of the Management Committee, and this Agreement shall not be deemed to
create a general partnership between the Partners with respect to any activities
whatsoever, other than activities within the scope and business purposes
specified in SECTION 2.2 hereof. In addition, nothing in this Agreement shall be
deemed or construed to constitute either Partner as an employee, independent
contractor or other agent or representative of the Partnership, any of the other
Partners or any of their respective Affiliates.
Section 2.4 Term. The term of the Partnership shall commence as of the
date hereof, and shall continue, unless sooner terminated in accordance with
ARTICLE 11, for so long as the Partnership engages in the Business described in
SECTION 2.2 hereof or otherwise holds any interest in or has any obligation
relating to any portion of the Property or the proceeds therefrom; provided
however that the Partnership shall, if not sooner terminated
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pursuant to the provisions of Article 11, terminate on December 31, 2052; and
provided further that, except as expressly provided in this Agreement, no
Partner shall have the right to, and each Partner hereby agrees that it shall
not, withdraw from the Partnership nor dissolve, terminate or liquidate the
Partnership, or petition a court for the dissolution, termination or liquidation
of the Partnership. No Partner at any time shall have the right to abandon any
Partnership Property, to petition or to take any action to subject the Property
or any part thereof to the authority of any court of bankruptcy, insolvency,
receivership or similar proceeding. Each Partner hereby expressly waives the
right to partition of the Partnership Property. Except to the extent otherwise
provided in a subsequent amendment to this Agreement, no partner shall have any
right to (and each partner hereby waives any and all rights to, and agrees that
he or it shall not), have such partner's interest in the Partnership purchased
by the Partnership upon dissociation of such partner from the Partnership or
upon any other event, and in no event shall the Partnership be obligated to make
any such purchase, notwithstanding anything to the contrary in the Act or this
Agreement.
ARTICLE 3
PERCENTAGE INTERESTS; CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS
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Section 3.1 Percentage Interests.
3.1.1 Percentage Interests. The Partners shall have the
following Percentage Interests in the Partnership:
Company 51%
Xxxxxxxxx 49%
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Total 100%
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Section 3.1.2 Adjustments. Unless otherwise agreed by all of the
Partners, no adjustment to the Percentage Interest of either Partner shall be
made except as otherwise set forth in this Agreement or as a result of a
permitted transfer of a Partner's Percentage Interest or a portion thereof
pursuant to the express terms hereof.
Section 3.2 Capital Contributions. The Partners (and/or their
predecessors) have contributed various assets to the capital of the Partnership,
which assets have been accepted by the Partnership at their fair market value at
the time of contribution. Within 60 days following the date of this Agreement,
the Administrative Partner shall prepare a statement based on the Partnership's
books and records confirming the aggregate contributions by each Partner (and/or
their predecessors) and the current capital account balances of each Partner.
Section 3.3 Additional Capital Contributions.
3.3.1 Since the formation of the Partnership no additional
capital contributions or loans have been made to the Partnership as a result of
cash flow from operations being sufficient to fund the Partnership's cash needs.
To the extent that the Partnership requires additional funds in the future, such
funds shall be contributed to the
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Partnership by the Partners as Additional Capital Contributions in an amount
proportionate to the Percentage Interests of the Partners in the Partnership.
Without limiting the foregoing, the Partners covenant and agree with each other
to contribute, in cash, to the capital of the Partnership their respective
shares of any other monies that the Management Committee determines are required
for conducting the Partnership's Business or for implementing and funding the
"Budget" approved in accordance with SECTION 6.6 hereof; provided, however, that
any such Additional Capital Contribution shall be subject to the consent of each
Partner.
3.3.2 If, as and when the Management Committee, in the exercise
of reasonable business judgment and in good faith, determines that funds (the
"REQUIRED FUNDS") are either required for the operation of the Business of the
Partnership or necessary to implement the Budget, the Management Committee
shall, by written notice (the "CASH NEEDS NOTICE") to the Partners, given at any
time or from time to time after the date hereof, call upon each Partner to
advance to the Partnership an amount (such Partner's "REQUESTED AMOUNT") equal
to the product of such Partner's Percentage Interest in the Partnership
multiplied by the amount of the Required Funds. The Cash Needs Notice and any
accompanying material shall set forth in reasonable detail the actual or
estimated amount of the Required Funds for the period for which the Cash Needs
Notice is being given, and shall itemize how the Required Funds will be applied.
Within 30 days after the date of the Cash Needs Notice, each Partner shall
advance its Requested Amount to the Partnership. The advances of the Partners
under this Section 3.3.2 shall be made as loans ("CASH NEEDS Loans") to the
Partnership by the Partners. The interest on any Cash Needs Loan shall be
payable at the rate of 2% per annum in excess of the Prime Rate, but in no event
shall the interest payable exceed the maximum rate allowable under applicable
law. Any such interest in any fiscal year which is not paid shall, to the extent
not prohibited by law, be added to the principal amount of such Cash Needs Loans
at the end of such fiscal year.
Section 3.4 Capital Accounts.
3.4.1 The Partnership shall maintain a "CAPITAL ACCOUNT" for
each Partner in accordance with this SECTION 3.4.
(a) Each Capital Account shall be maintained and adjusted
for federal income tax purposes in accordance with the applicable requirements
of Code Section 704(b) and the applicable provisions of the Treasury Regulations
promulgated thereunder, as amended from time to time, including the
corresponding provisions of any succeeding regulations relating to the
allocation of tax attributes to Partners (the "REGULATIONS"). Each Partner's
Capital Account shall be credited with (i) the amount of cash and the fair
market value of other property (net of liabilities that the Partnership is
considered to assume or take subject to, under Code Section 752) contributed by
such Partner to the capital of the Partnership and (ii) allocations to it
pursuant to Article 4 of Partnership income and gain (or items thereof). A
Partner's Capital Account shall be debited with (i) the amount of cash and the
fair market value of other property distributed to it (net of liabilities that
such Partner is considered to assume or take subject to, under Code Section
752), (ii) allocations to it of expenditures of the Partnership described in
Code Section 705(a)(2)(B) and (iii) allocations to it pursuant to Article 4 of
deductions and losses (or items thereof). If any property, other than cash, is
distributed to the Partners, the Capital Accounts of the Partners shall be
adjusted
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as if the property had instead been sold by the Partnership for a price equal to
its fair market value and the proceeds of such sale distributed to the Partners.
(b) No Partner shall be entitled to interest on any
Capital Contributions or on such Partner's Capital Account, notwithstanding any
disproportion therein as between Partners, and no Partner shall have the right
to demand the return of its Capital Contributions or the value of its Capital
Account, except and only to the extent expressly provided in this Agreement.
3.4.2 Capital Accounts. Following the execution of this
Agreement, the Administrative Partner shall prepare a statement reflecting the
current capital accounts of the Partners as provided under Section 3.2 hereof.
3.4.3 Compliance with Code. The provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Regulations Section 1.704-1(b) and shall be interpreted and applied in a manner
consistent with such regulation.
ARTICLE 4
ALLOCATIONS OF PROFITS AND LOSSES
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Section 4.1 Allocations. Except as otherwise provided in this ARTICLE
4, the respective share of each Partner in all Partnership taxable income or
loss and each item of Partnership income, gain, loss, deduction, credit and tax
preference with respect thereto, including depreciation and any investment tax
credit for each taxable year, and all as computed for Federal income tax
purposes, shall be allocated to the Partners in accordance with their Percentage
Interests.
Section 4.2 Code Section 704(c) Allocations.
4.2.1 In accordance with Code Section 704(c) and the treasury
regulations promulgated thereunder, income, gains, losses, deductions and
credits with respect to any property contributed to the capital of the
Partnership shall be allocated, solely for tax purposes, among the Partners so
as to account for any variation between the adjusted basis of such property to
the Partnership for federal income tax purposes and its fair market value at the
time of contribution. The Partnership shall use the remedial allocation method
for purposes of Section 704(c).
4.2.2 This SECTION 4.2 is intended to comply with Code Section
704(c) and the regulations promulgated thereunder and shall be interpreted and
applied in a manner consistent therewith.
Section 4.3 Transfer of Interest. In the event of a transfer of all or
part of an interest in the Partnership (in accordance with the provisions of
this Agreement) at any time other than the end of a Fiscal Year, or the
admission of an additional partner, the shares of items of income or loss and
specially allocated items allocable to the interest transferred shall be
allocated between the transferor and the transferee in a manner determined by
the
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Administrative Partner in its sole discretion that is not inconsistent with the
applicable provisions of the Code and Regulations.
ARTICLE 5
DISTRIBUTIONS
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Section 5.1 Distributions.
5.1.1 After providing for the satisfaction of the current debts
and obligations of the Partnership (other than loans from the Partners) and the
establishment of such reasonable reserves as may be established by the Chief
Executive Partner (consistent with past practices), the Chief Executive Partner
shall, as expeditiously as possible and not less often than monthly, make such
distributions of the Net Operating Cash Flow of the Partnership, to the extent
available, as are necessary to pay pro rata to the Partners who made loans to
the Partnership all unpaid principal of and all accrued and unpaid interest on
such loans in proportion to the total amount of principal and interest payable
on such loans, such distributions being treated first as in payment of accrued
interest on such loans.
5.1.2 After fulfillment of the requirements set forth in
SUBSECTION 5.1.1 of this Agreement, the Chief Executive Partner shall make
monthly distributions of all or any part of any Net Operating Cash Flow of the
Partnership that shall remain, in proportion to each Partner's Percentage
Interest.
Section 5.2 Liquidating Distributions. Upon the liquidation of the
Partnership or sale or other disposition by the Partnership of substantially all
of the Property of the Partnership, after providing for the satisfaction of all
liabilities and obligations of the Partnership (other than loans from the
Partners) and after making distributions of Net Operating Cash Flow from
operations in the year of dissolution in accordance with SECTION 5.1 hereof, the
Chief Executive Partner, as expeditiously as possible, shall distribute the
Property of the Partnership in the following order of priority:
5.2.1 First, to the setting up of such reserves as the
Management Committee approves for any contingent liabilities or obligations of
the Partnership; provided that (i) any such reserves shall be held by the
Partnership or an agent appointed by the Management Committee for such period as
the Chief Executive Partner shall deem advisable for the purpose of applying
such reserves to the payment of such liabilities or obligations as they become
due and (ii) at the expiration of such period, the balance of such reserves, if
any, shall be distributed as hereinafter provided in this SECTION 5.2.
5.2.2 Next, pro rata to all Partners who made loans to the
Partnership, in an amount equal to the unpaid principal of and interest on such
Loans, in proportion to the total amount of principal and interest payable on
such loans, such distributions being treated first as in payment of accrued
interest on such loans and next as in payment of principal on such loans.
5.2.3 The balance, if any, to the Partners in proportion to
each Partner's Percentage Interest.
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Section 5.3 Withdrawals of Capital. Except as otherwise provided
herein, no portion of the capital of the Partnership may be withdrawn at any
time without the approval of the Management Committee.
ARTICLE 6
MANAGEMENT
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Section 6.1 Management of the Partnership. The business and affairs of
the Partnership shall be controlled and managed as follows:
6.1.1 General Management and Control. The day-to-day decision
making and day-to-day operations of the Partnership shall be the responsibility
of the Chief Executive Partner, consistent with past practice. On matters other
than day-to-day decisions, the business and affairs of the Partnership shall be
controlled by the Management Committee and all decisions of the Management
Committee shall require the unanimous decision of the members of the Management
Committee.
6.1.2 Members of Management Committee. The Management Committee
shall be composed of three (3) members, two (2) of whom shall be appointed by
the Company, and one (1) of whom shall be appointed by Xxxxxxxxx. The Management
Committee shall meet at such intervals as may be determined by the Management
Committee, but no less often than annually. Dates, times and places of meeting
shall be determined by the Administrative Partner who shall notify the Partners
in writing of such dates, times and places not less than two (2) weeks and not
more than four (4) weeks prior to the dates thereof. Each Partner shall
designate in a writing delivered to the other Partners the individual who it has
appointed to the Management Committee to represent that Partner at meetings of
the Management Committee. Each member of the Management Committee shall have one
vote. Each Partner may, from time to time, replace the member of the Management
Committee who it appointed and appoint a new member to the Management Committee
upon prior written notice to the other Partners. No meeting of the Management
Committee shall be held unless at least two (2) members of the Management
Committee are present. All meetings of the Management Committee may transpire by
conference telephone call. The members of the Management Committee as of the
date of this Agreement are: Xxxxxxxx Xxxxxxxxxx and Xxxxxx X. Xxxxxxx (which
members were appointed by the Company), and Xx. Xxxxxx X. Xxxxxxxxx (who is the
member appointed by Xxxxxxxxx).
Section 6.2 Administrative Partner. The Company is hereby designated as
the Administrative Partner. The Administrative Partner shall be responsible for
the implementation of decisions of the Management Committee and shall be
responsible for making decisions and taking all actions necessary for the
implementation of such decisions; provided however, that the Administrative
Partner shall not be permitted to make any Major Decision without the consent of
the Partners; and provided, further, however, that the Chief Executive Partner
shall be responsible for making all day-to-day decisions, and all day-to-day
operations of the Partnership shall be the responsibility of the Chief Executive
Partner, consistent with past practice, including the following:
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1. Decisions on which projects to pursue, execute, reject
and/or terminate.
2. Decisions on project participants, including collaborators,
authors and artists.
3. Decisions on what terms to offer project participants.
4. Decisions on what terms to accept from publishers.
5. Decisions on whom to employ, and employee's compensation
(other than the Chief Executive Partner's).
6. All normal administrative duties and operations including
check writing, recordkeeping and other administrative
activity consistent with prudent accounting practices.
Section 6.3 Major Decisions. All "Major Decisions" of the Partnership
shall require the unanimous consent of the Partners. "Major Decisions" shall be
limited to decisions and acts with respect to the following:
6.3.1 The sale or encumbrance of all or substantially all of
the Property of the Partnership.
6.3.2 Any amendment of this Agreement.
6.3.3 The formation of any joint venture or partnership with
any other entity in connection with the ownership, sale or similar transactions
regarding the Property, or any part or portion thereof.
6.3.4 The borrowing of any money.
6.3.5 The commencement of a voluntary Bankruptcy by the
Partnership.
Section 6.4 Limitation on Actions of Partners. None of the Partners
shall, without the consent of the other Partners, take any action on behalf of,
or in the name of the Partnership, or enter into any commitment or obligation
binding upon the Partnership, or the Partners, except for: (i) actions
specifically provided for in this Agreement; (ii) actions of the Administrative
Partner within the scope of its authority; and (iii) actions authorized by the
Partners or the Management Committee in the manner set forth herein. Each
Partner shall indemnify and hold harmless the other Partners against any loss,
liability, damage or expense arising out of any breach of the foregoing
provisions by the indemnifying Partner, which indemnity shall include all costs
(including reasonable attorneys' fees) incurred in defending any such action or
claim, whether at the trial court or appellate level or during negotiations.
Section 6.5 Limitation on Actions of Less Than 20% Partners.
Notwithstanding anything in this Agreement to the contrary, if (and so long as)
a Partner's Percentage Interest,
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inclusive of that of its Affiliates, is reduced to or below 20%, the other
Partner or Partners, as applicable, shall be entitled to make all Major
Decisions on behalf of the Partnership.
Section 6.6 Budget. For each calendar year, at least 45 days before
(and not more than 120 days before) the beginning thereof, the Chief Executive
Partner (working with the Administrative Partner) shall prepare: (i) a budget
(the "BUDGET") setting forth the estimated receipts and expenditures of the
Partnership for such year; and (ii) a business plan (the "PLAN"), setting forth
the activities and projects to be undertaken and the actions to be taken by the
Partnership for such year. The Chief Executive Partner shall then submit the
Budget and Plan to the Management Committee and the Management Committee shall
then meet to review and approve the same (the "BUDGET MEETING"). After such time
as the Budget and Plan have been approved by the Management Committee, the Chief
Executive Partner shall be authorized, without the need for further approval by
the other Partners, to make the expenditures and incur the obligations provided
for in the Budget and to take all actions necessary to implement the Plan. The
Administrative Partner shall send written notice of the Budget Meeting to the
members of the Management Committee not less than two (2) weeks and not more
than four (4) weeks prior to the suggested date thereof. If such members fail to
attend the Budget Meeting, it shall be renoticed not less than one (1) and not
more than two (2) weeks prior to the suggested date thereof and if such members
fail to attend the renoticed Budget Meeting, the Administrative Partner shall
have the authority to approve the Budget and Plan without any requirement to
consult the other Partners, notwithstanding any provision to the contrary
contained in this Agreement. The Budget Meeting shall take place at the
principal office of the Partnership or such other place as the members of the
Management Committee shall agree. Members of the Management Committee will
cooperate with each other on the timing of Budget Meetings, and Partners, in
their discretion, may attend any Budget Meeting by telephone conference call.
Section 6.7 Compensation and Reimbursement of Partners. Except as may
be expressly provided for herein, no payment will be made by the Partnership to
any Partner for the services of such Partner or any member, shareholder,
director or Affiliate of such Partner unless (i) the terms of such payment are
no less favorable to the Partnership than could be obtained from unaffiliated
third parties, and (ii) prior written approval is obtained from the Partners not
receiving such payment.
Section 6.8 Time Required of Xxxxxxxxx as Chief Executive Partner;
Compensation of Xxxxxxxxx. The Partners hereby agree that Xxxxxxxxx shall serve,
and Xxxxxxxxx hereby agrees to serve, as the Chief Executive Partner of the
Partnership for a period of no less than ten (10) years after the date hereof,
and for such period of time thereafter as Xxxxxxxxx shall desire, but in each
case only for so long as Xxxxxxxxx is physically and mentally capable of
fulfilling the requirements of the Chief Executive Partner under this Agreement
including this Section 6.8), and that, so long as he holds such office,
Xxxxxxxxx shall be required to devote sufficient time, energy and attention to
the operation and conduct of the Partnership's Business for him to provide
adequate day-to-day decision making and supervision of such Business, consistent
with Xxxxxxxxx'x past practices with respect to such Business. Xxxxxxxxx shall
receive no compensation for such duties except that, during such time as
Xxxxxxxxx continues to be the Chief Executive Partner, the Partnership shall
continue to make the payments of $8,235 per year on the Xxxx Xxxxxxx $1,500,000
life insurance policy No. 75142272 insuring the life of Xxxxxxxxx currently
naming Xxxxxxxxx'x wife as
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beneficiary, and Xxxxxxxxx shall receive an automobile allowance of $650 per
month payable by the Partnership.
ARTICLE 7
ACCOUNTING
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Section 7.1 Books and Records. At all times during the term hereof, the
Chief Executive Partner, at the Partnership's expense, shall cause accurate
books and records of account to be maintained in which shall be entered all
material matters relating to the Partnership, including all income,
expenditures, assets and liabilities thereof.
Section 7.2 Location and Rights of Inspection. The Partnership's books
and records of account shall be kept and maintained at all times at the
Partnership's principal place of business specified in SECTION 2.1(C) unless
otherwise approved by the Partners. Each Partner and its authorized
representatives shall, upon reasonable notice, have the right to inspect,
examine and copy the books, records, files and other documents of the
Partnership at all reasonable times.
Section 7.3 Fiscal Year. The Fiscal Year of the Partnership shall be
the calendar year unless otherwise approved by the Management Committee.
Section 7.4 Statements of Financial Condition. Based on the
Partnership's books and records, and other appropriate information provided by
the Chief Executive Partner, the Administrative Partner shall prepare or cause
to be prepared by the Partnership's independent certified public accountants, at
the Partnership's expense, a statement of the financial condition of the
Partnership as of the last day of each quarter of each fiscal year. The
Administrative Partner shall also promptly deliver to each Partner quarterly
income and expense reports with respect to the Partnership. Each statement of
financial condition and each income and expense report shall be prepared in
accordance with generally accepted accounting principles ("GAAP"). Copies of
such statements and reports shall be furnished to each of the Partners within
forty-five (45) days after the end of each quarter to the extent feasible. In
addition, the Administrative Partner shall prepare or cause to be prepared an
annual statement of the financial condition of the Partnership and income and
cash flow statements, which statements shall be audited by the Partnership's
independent accountants and furnished to each of the Partners within one hundred
(100) days after the close of each fiscal year to the extent feasible.
Section 7.5 Bank Accounts. Funds of the Partnership shall be deposited
in an account or accounts of a type, in form and name and in a bank or banks, as
shall be approved by the Chief Executive Partner, in accordance with past
practice, subject to change thereafter at the request of the Management
Committee.
Section 7.6 Other Accounting Decisions. All major accounting principles
and practices of the Partnership (other than those specifically provided for in
other Sections of this Agreement) shall be consistent with the past practices of
the Partnership and GAAP, unless otherwise approved by the Management Committee.
The Partnership shall continue to
13
engage as independent auditors for the Partnership the firm of Ernst & Young or
such other recognized firm of independent certified public accountants as
approved or designated by the Management Committee.
ARTICLE 8
INCOME TAX RETURNS, TAX ACCOUNTING, TAX ELECTIONS
-------------------------------------------------
Section 8.1 Tax Returns and "Tax Matters Partner". The Administrative
Partner shall be and shall have all of the rights and powers of the
Partnership's "TAX MATTERS PARTNER" as such term is defined in the Code. The Tax
Matters Partner shall prepare or cause to be prepared (and the Partnership's
independent accountants shall review) all tax returns and statements, if any,
which must be filed on behalf of the Partnership with any federal, state, local
or foreign taxing authority, and, except and to the extent otherwise provided in
Section 8.3 hereof, shall have the authority to make any and all elections under
tax laws and regulations for or with respect to the Partnership as to tax
matters relating to the Partnership. Copies of all tax returns of the
Partnership shall be furnished to each of the Partners for its review and
approval at least fifteen (15) days prior to the statutory date for filing,
including extensions thereof if any. If any Partner shall fail to approve any
such return at least five (5) days prior to the statutory date for filing, the
Tax Matters Partner shall file or cause to be filed an application for extension
of time to file such return. If any Partner shall thereafter fail to approve any
such return at least five (5) days prior to the expiration of the last lawful
extension, the Tax Matters Partner shall, nevertheless, file such return on
behalf of the Partnership. In the event the Partnership is not subject to the
consolidated audit rules of Code Section 6221 through 6234, the Partners hereby
agree to sign an election pursuant to Code Section 6231(a)(l)(B)(ii) to be filed
with the Partnership's next federal income tax return to have such consolidated
audit rules apply to the Partnership. Actual expenses incurred by the
Administrative Partner as the Tax Matters Partner or in a similar capacity as
set forth in this Section 8 shall be borne by the Partnership as Partnership
expenses. Such expenses shall include, without limitation, fees of attorneys and
other tax professionals, accountants, appraisers and experts, filing fees and
reasonable out-of-pocket costs.
Section 8.2 Method of Accounting. For income tax purposes, Partnership
income, gains, losses, deductions and credits shall be reported under the method
of accounting determined by the Management Committee except to the extent
otherwise required by applicable law.
Section 8.3 Section 754 Election. The Partnership shall, if requested
by any Partner, make the election under Code Section 754 provided, however, that
the cost of preparing said election and any additional expenses occasioned by
said election, shall be borne by the Partner(s) benefiting from such election.
Section 8.4 Section 708 Termination. Notwithstanding the provisions of
ARTICLE 9 or any other provision to the contrary contained in this Agreement, no
Partner shall take any action which will cause a termination of the Partnership
under Code Section 708 without the express written consent of all other
Partners.
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Section 8.5 Section 7704; No Publicly Traded Partnership.
Notwithstanding any other provision of this Agreement, no Partner shall take any
action which would cause the Company to be characterized as a "publicly traded
partnership" (within the meaning set forth in Section 7704 of the Code).
ARTICLE 9
TRANSFER OF PARTNERSHIP INTEREST
--------------------------------
Section 9.1 Transferability. Except as otherwise provided herein, no
Partner shall sell, transfer, assign or otherwise dispose of, or mortgage,
hypothecate or otherwise encumber, or permit or suffer an encumbrance of all or
any part of its interest in the Partnership without the prior written consent of
the other Partners, which consent may be withheld for any or no reason, and any
attempt to so transfer without such consent shall be null and void; provided,
however, that any Partner shall have the right to transfer all or any part of
its interest in the Partnership to any Affiliate without such consent (subject
to Section 9.3 hereof); and provided further, that any Partner may transfer all
(but not less than all) of its interest in the Partnership without such consent
(subject to Section 9.3 hereof) if such transfer is made in accordance with the
following terms of this Section 9.1. In the event that a Partner (a "SELLING
PARTNER") desires to make a bona fide sale and transfer of that Partner's entire
Percentage Interest, other than to an Affiliate, the Selling Partner shall
notify the other Partner in writing (the "SALE NOTICE") specifying the proposed
sales price (the "PRICE"), closing date and all other terms of the desired
transfer (the "SALE TERMS"), and the other Partner shall have a period of
fifteen (15) days after receipt of the Sale Notice (the "EXPIRATION DATE") to
elect to purchase the Selling Partner's Percentage Interest for the Price by
written notice to the Selling Partner of such election (an "ELECTION"). In the
event no Election is received by the Selling Partner on or before the Expiration
Date, the Selling Partner shall be free to complete a bona fide sale of the
Percentage Interest on the Sale Terms during the sixty (60) day period following
the Expiration Date (but only if Section 9.3 hereof is complied with upon or
prior to the consummation of any such sale), but not otherwise. Each Partner who
makes an Election shall be bound to purchase the Percentage Interest for the
Price, and such Price may be paid either in accordance with the Sale Terms or in
cash, at the purchasing Partner's option. The closing of such sale to the
Partner making an Election shall be made at such time as called for in the Sale
Terms, but not sooner than thirty (30) days after the Expiration Date, and title
to the Percentage Interest shall be conveyed at such closing free and clear of
any and all claims, liens or encumbrances, except for those previously approved
by the parties.
Section 9.2 Transfers By Xxxxxxxxx. Any transfer by Xxxxxxxxx of his
interest in the Partnership, to an Affiliate or otherwise, shall not relieve
Xxxxxxxxx of his obligation to serve as Chief Executive Partner pursuant to the
terms of this Agreement, which obligation shall survive and continue to bind
Xxxxxxxxx notwithstanding any such assignment.
Section 9.3 Admission of Transferees as Partners; Notice of
Restrictions to Transferees. Notwithstanding anything to the contrary in this
Agreement, no transferee of any interest in the Partnership, whether by
voluntary assignment, by operation of law, or otherwise, shall have any interest
in the Partnership or under this Agreement unless and until such transferee
becomes a partner of the Partnership and assumes the obligations of a partner
15
of the Partnership by executing and delivering to the Partnership a document
whereby the transferee assumes the obligations of the transferor partner. In
addition to any other requirements of this Agreement, (i) no partner shall
transfer or attempt to transfer any interest in the Partnership (and no transfer
of any interest in the Partnership shall occur or be effective (or be deemed to
have occurred)) until after such time as the transferee has received notice of
the transfer restrictions in this Agreement (including, without limitation, this
Article 9 and this Section 9.3), and (ii) each partner agrees that it shall give
(or cause to be given) such notice prior to any transfer of any of such
partner's interest in the Partnership (whether such transfer is voluntary or
involuntary or otherwise), and that no such transfer shall be made or effective
or deemed to be made prior to the giving of such notice to the transferee.
ARTICLE 10
TRANSACTIONS WITH AFFILIATES
----------------------------
Section 10.1 Transactions with Affiliates. Except as otherwise provided
in this Agreement, the Chief Executive Partner may enter into agreements on
behalf of the Partnership with, and may pay fees to, Affiliates of the Partners,
for bookkeeping, accounting, tax, tax reporting or other services provided to it
by any such persons so long as, in each case, each member of the Management
Committee who is not appointed by the Partner whose Affiliate the Partnership is
to enter into an agreement with has approved the terms of such agreement.
ARTICLE 11
DISSOLUTION, LIOUIDATION AND TERMINATION OF THE PARTNERSHIP
-----------------------------------------------------------
Section 11.1 Dissolution; Liquidation; Termination. The Partnership
shall dissolve only upon the earliest of the following to occur, notwithstanding
anything to the contrary in the Act:
(a) the expiration of the term of the Partnership as
provided in SECTION 2.4;
(b) the Bankruptcy of the Partnership;
(c) the dissolution of the Partnership by judicial decree;
or
(d) the Partners mutually agree in writing to dissolve the
Partnership.
Section 11.2 Disposition of Documents and Records. All documents and
records of the Partnership, including, without limitation, all financial
records, vouchers, canceled checks and bank statements, shall be delivered to
the Administrative Partner upon termination of the Partnership. The
Administrative Partner shall retain such documents and
16
records for a period of not less then seven (7) years and shall, upon reasonable
notice make such documents and records available during normal business hours to
the other Partners for inspection and copying at the other Partners' cost and
expense, provided, however, that if there is an audit or threat of audit such
documents and records shall be retained until the audit is completed and any tax
liability is finally determined.
ARTICLE 12
KEY MAN INSURANCE
-----------------
Section 12.1 Key Man Life Insurance. Partners other than Xxxxxxxxx
shall be entitled to obtain, in their discretion, Key Man Life Insurance
insuring the life of Xxxxxxxxx, the premiums of which shall be payable by
Partners other than Xxxxxxxxx.
Section 12.2 Key Man Disability Insurance. Partners other than
Xxxxxxxxx shall be entitled to obtain, in their discretion, Key Man Disability
Insurance, the premiums on which shall be payable by Partners other than
Xxxxxxxxx.
Section 12.3 Key Man Insurance Differentiated From Xxxxxxxxx'x
Insurance Under Section 6.8; Cooperation of Xx. Xxxxxxxxx. The parties
acknowledge that the Key Man insurance described in Sections 12.1 and 12.2 above
is separate and distinct from the life insurance paid by the Partnership under
Section 6.8 hereof, in that the Key Man insurance inures to the benefit of
Partner(s) other than Xxxxxxxxx and the premiums on such insurance are payable
by Partner(s) other than Xxxxxxxxx; whereas, the life insurance paid by the
Partnership under Section 6.8 inures to the benefit of Xxxxxxxxx'x estate and
the premiums on such insurance are payable by the Partnership. Xxxxxxxxx agrees
to cooperate with the Partnership and other Partner(s) in connection with
obtaining and maintaining any and all such insurance, including, without
limitation, submitting to reasonable examinations by, or at the request of, any
applicable insurer, and to use his best efforts to assist in obtaining such
insurance.
ARTICLE 13
BOOKS, MAGAZINES AND OTHER PUBLICATIONS
---------------------------------------
Section 13.1 Books, Magazines and Other Publications Produced by
Xxxxxxxxx. Upon the formation of the Partnership, Xxxxxxxxx granted and
transferred to the Partnership (and Xxxxxxxxx hereby grants and transfers to the
Partnership) all of the right, title and interests that Xxxxxxxxx had or has to
market, sell and distribute all books, magazines and other publications
packaged, printed, produced, published and/or otherwise created, either before
or after the date of the Original Partnership Agreement or this Agreement by
Xxxxxxxxx, his Affiliates or employees. Xxxxxxxxx and the Partnership hereby
agree to take all reasonable actions and to make, execute and deliver such
written agreements as shall from time to time be reasonably necessary to carry
out the intent of this Section 13.1, all as determined by the Management
Committee.
17
Section 13.2 Books, Magazines and Other Publications Not Produced by
Xxxxxxxxx.
13.2.1 Existing Books, Magazines and Other Publications.
Xxxxxxxxx hereby confirms that, as provided in Section 13.2.1 of the Original
Partnership Agreement, Xxxxxxxxx assigned to the Partnership (to the extent not
previously assigned) all of his rights in those existing books, magazines and
other publications as set forth on SCHEDULE 13.2.1 of the Original Partnership
Agreement, which were packaged, printed, produced, published and/or otherwise
created under the terms of any and all contracts, existing on or prior to the
date of the Original Partnership Agreement, by and between Xxxxxxxxx and any
author or collaborator (the "EXISTING CONTRACTS"). Xxxxxxxxx agrees that he
shall use his reasonable best efforts to assign the Existing Contracts to the
Partnership (to the extent not previously assigned) and/or ensure that all such
publishers, authors and collaborators enter into new contracts with the
Partnership, the terms and conditions of which are substantially similar to the
terms and conditions of the Existing Contracts. Xxxxxxxxx and the Partnership
hereby agree to take all reasonable actions and to make, execute and deliver
such written agreements as shall from time to time be reasonably necessary to
carry out the intent of this SECTION 13.2.1, all as determined in the reasonable
discretion of the Administrative Partner.
13.2.2 New Books, Magazines and Other Publications. Xxxxxxxxx
hereby agrees and confirms that (1) he shall assign (and that he previously
assigned and agreed to assign, pursuant to Section 13.2.2 of the Original
Partnership Agreement) all of his right, title and interest in all books,
magazines and other publications which are or were packaged, printed, produced,
published and/or otherwise created, after the date of the Original Partnership
Agreement under the terms of any Existing Contracts (including without
limitation all of his rights, copyrights, trademarks, patents and other
intellectual property rights relating to such books, magazines and other
publications) to the Partnership and (2) his interest in all such books,
magazines and other publications shall be vested in, and shall become the
exclusive property of the Partnership (and that all such properties, rights and
interests in existence prior to the date of this Agreement are and have been
vested in, and are have become the exclusive property of the Partnership).
13.2.3 Books, Magazines and Other Publications Produced by the
Partnership. The parties hereby confirm the following terms and agreements as
made in Section 13.2.3 of the Original Partnership Agreement and which have been
in full force and effect through the date of this Agreement, which terms and
agreements are hereby again agreed to by the parties hereto as of the date
hereof:
(a) The Partners hereby acknowledge and agree that the
Property, including, without limitation, the Existing Contracts and all
copyrights, trade secrets, know-how, patents, trademarks and all other
intellectual property rights embodied therein (collectively, the "PROPRIETARY
RIGHTS"), is and at all times shall be the property of the Partnership. The
Partnership shall have the right to use and exploit the Proprietary Rights in
all manner and media whatsoever, including, without limitation, as computer
software, as laser discs, as CD-ROM's, in print form, in electronic media, in
audio books and as consumer and other products.
18
(b) The Partners hereby agree that, except as expressly
permitted in this Agreement, they shall not at any time use, copy, disclose to
any third party, license, transfer or otherwise exploit the Proprietary Rights
in any manner whatsoever without the express written consent of all of the
Partners, which consent may be withheld for any or no reason. Furthermore, the
Partners hereby agree that they shall, at all times, maintain the
confidentiality of the Proprietary Rights and the fact that Partnership is
pursuing development of the Proprietary Rights, except as necessary to conduct
the Business.
(c) The Partners hereby agree that all copyrightable
material generated or developed by the Partners or the Partnership in connection
with the Proprietary Rights or otherwise pursuant to this Agreement are "works
made for hire" and that such material shall, at all times, be the property of
the Partnership; provided, however, that the Chief Executive Partner may make
individual exceptions to this policy in accordance with past practice. To the
extent that any such copyrightable material may not, under applicable law, be
considered "works made for hire," the Partners hereby assign, transfer and
convey to the Partnership the ownership of all copyrights in such materials to
the extent held by the Partners, without the necessity of further consideration,
and the Partnership shall be entitled to obtain and hold in its own name all
copyrights with respect to such materials. Furthermore, the Partners hereby
transfer, convey, grant, assign and relinquish exclusively to the Partnership
whatever right, title and interest in and to the Proprietary Rights that the
Partners may have under any and all patent, copyright, trademark and trade
secret laws, in perpetuity or for the longest period otherwise permitted by
applicable law.
Section 13.3 Income and Royalties. Xxxxxxxxx hereby assigns to the
Partnership (and confirms that pursuant to Section 13.3 of the Original Purchase
Agreement he previously assigned to the Partnership) all of Xxxxxxxxx'x right,
title and interest in and to any and all royalties and other income relating to
the books, magazines and other publications described in Sections 13.l and 13.2
of this Agreement and the Original Purchase Agreement, including, without
limitation, the Existing Contracts and the Proprietary Rights. Xxxxxxxxx agrees
he shall use his reasonable best efforts to obtain the consent to such
assignment by all necessary parties, including, without limitation, appropriate
publishers and collaborators. To the extent not assignable or assigned, all such
royalties and other income received since the date of the Original Purchase
Agreement or hereafter relating to the foregoing shall be remitted promptly by
Xxxxxxxxx to the Partnership, after payment of permissions and other fees
required to be paid to collaborators. Xxxxxxxxx and the Partnership agree to
take all reasonable actions and to make, execute and deliver such written
agreements as shall from time to time be reasonably necessary to carry out the
intent of this Section 13.3, all as determined in the reasonable discretion of
the Administrative Partner. Notwithstanding any of the foregoing to the
contrary, Xxxxxxxxx does not assign Xxxxxxxxx'x rights under that certain
Consulting Agreement (and the Packaging Agreement referred to therein) between
Xxxxxxxxx and Big Entertainment, Inc. (predecessor to the Company).
19
ARTICLE 14
MISCELLANEOUS
-------------
Section 14.1 Amendment. This Agreement may not be amended, altered or
modified except by a writing signed by all of the Partners.
Section 14.2 Notices. 14.2.1 Addresses. All notices under this
Agreement shall be in writing and shall be delivered personally or by certified
or registered mail, postage prepaid, return receipt requested, or by facsimile,
to the Partners at the addresses set forth below and to the Partnership at its
principal place of business set forth in Section 2.1. The addresses for notices
are as follows:
If to the Company: Hollywood Media Corp.
0000 Xxxxxx Xxxx, Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxx,
Chief Executive Officer
Fax: 000-000-0000
With a copy to: Hollywood Media Corp.,
0000 Xxxxxx Xxxx, Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax: 000-000-0000
If to Xxxxxxxxx: Xx. Xxxxxx X. Xxxxxxxxx
000 Xxxx Xxxx
Xxxxx Xxx, Xxxxxxxxx 00000
Fax: 000-000-0000
14.2.2 Effective Date. All notices, demands and requests shall
be effective upon actual receipt at the specified address; provided, however,
that rejection or other refusal to accept or the inability to deliver because of
changed address of which no notice was given as provided in Subsection 14.2.3
shall be deemed to be receipt of the notice, demand or request sent.
14.2.3 Changes. By giving to the other parties at least thirty
(30) days' written notice thereof, the parties hereto and their respective
permitted successors and assigns shall have the right from time to time and at
any time during the term of this Agreement to change their respective addresses
for notices and each shall have the right to specify as its address for notices
any other address within the United States of America.
Section 14.3 Attorneys' Fees. Should any litigation be commenced
between the parties hereto or their representatives or should any party
institute any proceeding in a
20
bankruptcy or similar court which has jurisdiction over any other party hereto
or any or all of its property or assets concerning any provision of this
Agreement or the rights and duties of any person or entity in relation thereto,
the party or parties prevailing in such litigation shall be entitled, in
addition to such other relief as may be granted, to a reasonable sum as and for
its or their attorneys' fees and court costs in such litigation, which shall be
determined by the court in such litigation or in a separate action brought for
that purpose.
Section 14.4 Validity. In the event that any provision of this
Agreement shall be held to be invalid or unenforceable, the same shall not
affect in any respect whatsoever the validity or enforceability of the remainder
of this Agreement.
Section 14.5 Survival of Rights. Except as provided herein to the
contrary, this Agreement shall be binding upon and inure to the benefit of the
parties hereto, their respective legal representatives, executors, heirs and
permitted successors and assigns.
Section 14.6 Arbitration; Governing Law. Any claim or controversy
arising out of or relating to this Agreement or a breach hereof shall, upon the
request of any party involved, be submitted to and settled by arbitration in the
County of Palm Beach, Florida and pursuant to the rules of the American
Arbitration Association or any other form of arbitration mutually acceptable to
the parties so involved. The decision made pursuant to such arbitration shall be
binding and conclusive on all parties involved; and a judgment upon such
decision may be entered in the highest court of any state or federal forum
having jurisdiction, with such jurisdiction located in the respective federal
and state courts located in Palm Beach County, Florida. Notwithstanding the
foregoing provisions of this Section 14.6, the request by either party for
specific performance or preliminary or permanent injunctive relief, whether
prohibitive or mandatory, shall not be subject to mandatory arbitration under
this Section 14.6 and may be adjudicated only by the courts of the State of
Florida or the U.S. District Court in Florida which are located in Palm Beach
County, Florida. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Florida.
Section 14.7 Waiver. No consent or waiver, express or implied, by a
Partner to or of any breach or default by any other Partner in the performance
by such other Partner of its obligations hereunder shall be deemed or construed
to be a consent or waiver to or of any other breach or default in the
performance by such other Partner of the same or any other obligations of such
other Partner hereunder. Failure on the part of a Partner to complain of any act
or failure to act of any other Partner or to declare any other Partner in
default, irrespective of how long such failure continues, shall not constitute a
waiver by such Partner of its rights hereunder. The giving of consent by a
Partner in any one instance shall not limit or waive the necessity to obtain
such Partner's consent in any future instance.
Section 14.8 Remedies In Equity. The rights and remedies of either of
the Partners hereunder shall not be mutually exclusive, and the exercise of one
or more of the provisions hereof shall not preclude the exercise of any other
provisions hereof. Each of the Partners confirms that damages at law will be an
inadequate remedy for a breach or threatened breach of this Agreement and agrees
that, in the event of a breach or threatened breach of any provision hereof, the
respective rights and obligations hereunder shall be enforceable by specific
performance, injunction or other equitable remedy, but nothing herein
21
contained is intended to, or shall it, limit or affect any rights at law or by
statute or otherwise of any party aggrieved as against the other for a breach or
threatened breach of any provision hereof, it being the intention of this
Section 14.8 to make clear the agreement of the Partners that the respective
rights and obligations of the Partners hereunder shall be enforceable in equity
as well as at law or otherwise, subject however to Section 14.6 hereof.
Section 14.9 Terminology. All personal pronouns used in this Agreement,
whether used in the masculine, feminine, or neuter gender, shall include all
other genders; and the singular shall include the plural and vice versa.
Section 14.10 Section Headings. All Section headings used in this
Agreement are for convenience only, and neither limit nor amplify the provisions
of this Agreement itself.
Section 14.11 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which shall constitute one and the same agreement.
Section 14.12 Survival of Indemnity Obligations. Any and all indemnity
obligations of any party hereto shall survive any termination of the
Partnership.
Section 14.13 Further Assurances. Each party hereto agrees to do all
acts and things and to make, execute and deliver such written instruments, as
shall from time to time be reasonably required to carry out the terms and
provisions of this Agreement.
Section 14.14 Xxxxxxxxx'x Covenant not to Compete. Xxxxxxxxx will not
become associated with, or engage in, or render service to, any business within
the United States that is competitive with the Business of the Partnership, or
otherwise compete with the Partnership (A) while Xxxxxxxxx continues to be a
Partner, for so long as this Partnership remains in existence and continues to
do business; or (B) after such time as Xxxxxxxxx is no longer a Partner, for a
period of five (5) years. In the event that the foregoing restrictions are found
to be unreasonable, and thereby unenforceable, by any court of competent
jurisdiction, such restrictions shall be deemed automatically and retroactively
modified in such a manner that such court determines to be required in order to
find such restrictions to then be enforceable. Xxxxxxxxx acknowledges and agrees
that the covenants provided for in this Section 14.14 are reasonable and
necessary in terms of time, area and line of business to protect the
Partnership's legitimate business and property interests.
[signatures on following page]
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above set forth.
Witnesses: HOLLYWOOD MEDIA CORP.,
a Florida corporation
/s/ La Xxxxx Xxxxxxx By: /s/ Xxxxxxxx Xxxxxxxxxx
---------------------------- ---------------------------
print name: La Xxxxx Xxxxxxx Name: Xxxxxxxx Xxxxxxxxxx
Title: Chief Executive Officer
/s/ Xxxxxx Xxxxxxx
----------------------------
print name: Xxxxxx Xxxxxxx
Witnesses:
/s/ Xxxx Xxxxxxx /s/ Xx. Xxxxxx X. Xxxxxxxxx
------------------------ ---------------------------
print name: Xxxx Xxxxxxx Xx. Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx Xxxxxx
-------------------------
print name: Xxxxxx Xxxxxx
23
