REGISTRATION RIGHTS AGREEMENT
Exhibit 4.6
This Registration Rights Agreement (this “Agreement”) is made and entered into as of November
23, 2005, by and among Hollywood Media Corp., a Florida corporation (the “Company”), and the
investors signatory hereto (each an “Investor” and collectively, the “Investors”).
BACKGROUND
This Agreement is made pursuant to the Note Purchase Agreement, dated as of November 22, 2005,
among the Company and the Investors (the “Purchase Agreement”). In connection with the Purchase
Agreement, the Company has agreed, upon the terms and subject to the conditions of the Purchase
Agreement, (i) to issue and sell on the date hereof to each Investor 8% Senior Unsecured Notes of
the Company (the “Notes”), which are redeemable into shares of Common Stock in accordance with the
terms of the Notes (the “Redemption Shares”), (ii) to issue and sell on the date hereof to the
Investors warrants (the “Warrants”)to purchase an aggregate of 700,000 shares of Common Stock (the
“Warrant Shares”), and (iii) if the Company exercises its right under the Notes to extend the
maturity date thereof, warrants (the “Extension Warrants”) to purchase up to an additional 100,000
shares of Common Stock issued pursuant to the terms and conditions of the Notes (the “Extension
Warrant Shares”).
AGREEMENT
The Company and the Investors hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein that are
defined in the Purchase Agreement shall have the meanings given such terms in the Purchase
Agreement. As used in this Agreement, the following terms shall have the respective meanings set
forth in this Section 1:
“Advice” shall have the meaning set forth in Section 6(d).
“Common Stock” means the common stock of the Company, $.01 par value per share.
“Effective Date” means the date that the Registration Statement filed pursuant to Section 2(a)
or 2(b) is first declared effective by the Commission.
“Effectiveness Date” means (i) the 135th day following the date of this Agreement with respect
to the Warrant Shares and (ii) the 135th day following the Extension Warrant Issuance Date with
respect to the Extension Warrant Shares.
“Event” shall have the meaning set forth in Section 2(c).
“Event Date” shall have the meaning set forth in Section 2(c).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Extension Warrant Issuance Date” shall mean the date of the original issuance of the
Extension Warrants.
“Extension Warrants” shall have the meaning set forth in the Background section.
“Extension Warrant Shares” shall have the meaning set forth in the Background section.
“Filing Date” means (i) the 45th day following the date of this Agreement with respect to the
Warrant Shares and (ii) the 45th day following the Extension Warrant Issuance Date with respect to
the Extension Warrant Shares.
“Holder” or “Holders” means the holder or holders, as the case may be, from time to time of
Registrable Securities.
“Indemnified Party” shall have the meaning set forth in Section 5(c).
“Indemnifying Party” shall have the meaning set forth in Section 5(c).
“Losses” shall have the meaning set forth in Section 5(a).
“Notes” shall have the meaning set forth in the Background section.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition), whether commenced or
threatened.
“Prospectus” means the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from a prospectus filed
as part of an effective registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by the Registration Statement,
and all other amendments and supplements to the Prospectus, including post-effective amendments,
and all material incorporated by reference or deemed to be incorporated by reference in such
Prospectus.
“Redemption Shares” shall have the meaning set forth in the Background section.
“Redemption Shares Issuance Date” shall mean the date of the original issuance of the
Redemption Shares.
“Registrable Securities” means (i) the Warrant Shares, (ii) from and after the Extension
Warrants Issuance Date, the Extension Warrant Shares, (iii) from and after the Redemption Shares
Issuance Date, the Redemption Shares, and (iv) any other securities into which the Warrant Shares,
the Extension Warrant Shares and the Redemption Shares may be reclassified after the date hereof;
provided however, that any shares of Common Stock will cease
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to be Registrable Securities at such time as they have been sold under a Registration
Statement or pursuant to Rule 144, or otherwise or such time as they are eligible to be sold
pursuant to Rule 144(k) promulgated under the Securities Act.
“Registration Period” means the period commencing on any applicable Effectiveness Date and the
earliest of (i) the fifth anniversary of such Effectiveness Date, (ii) the date on which the
Holders are able to resell all of their respective Registrable Securities without volume
restrictions pursuant to Rule 144(k) promulgated under the Securities Act, or (iii) the date on
which all of the Registrable Securities have been sold by the Investors under a Registration
Statement or pursuant to Rule 144.
“Registration Statement” means the registration statement required to be filed in accordance
with Section 2(a) and any additional registration statement(s) required to be filed under Section
2(b), including (in each case) the Prospectus, amendments and supplements to such registration
statements or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and
all material incorporated by reference or deemed to be incorporated by reference in such
registration statements.
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
“Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
“Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
“Securities Act” means the Securities Act of 1933, as amended.
“Selling Shareholder Questionnaire” shall have the meaning set forth in Section 3(j).
“Trading Day” means (i) a day on which the Common Stock is traded on a Trading Market, or (ii)
if the Common Stock is not listed on a Trading Market, a day on which the Common Stock is traded in
the over-the-counter market or quoted in the over-the-counter market as reported by the National
Quotation Bureau Incorporated (or any similar organization or agency succeeding to its functions of
reporting prices); provided, that in the event that the Common Stock is not listed or quoted as set
forth in (i) or (ii) hereof, then Trading Day shall mean a Business Day.
“Trading Market” means whichever of the New York Stock Exchange, the American Stock Exchange,
the NASDAQ National Market, the NASDAQ SmallCap Market or OTC Bulletin Board on which the Common
Stock is listed or quoted for trading on the date in question.
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“Warrants” shall have the meaning set forth in the Background section.
2. Registration.
(a) On or prior to the Filing Date for the Warrant Shares, the Company shall use its
reasonable best efforts to prepare and file with the Commission a Registration Statement covering
the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant
to Rule 415. The Registration Statement shall be on Form S-3 (unless the Company is not then
eligible to register for resale of the Registrable Securities on Form S-3, in which case such
registration shall be another appropriate form in accordance herewith) and shall contain (unless
otherwise directed by the Holders and except if otherwise required pursuant to comments received
from the Commission upon a review of such Registration Statement or pursuant to judicial and SEC
interpretations) substantially the “Plan of Distribution” attached hereto as Annex A. The Company
shall use its reasonable best efforts to cause the Registration Statement to be declared effective
under the Securities Act as soon as reasonably possible but, in any event, no later than the
applicable Effectiveness Date, and shall use its reasonable best efforts to keep the Registration
Statement effective under the Securities Act during the balance of the applicable Registration
Period.
(b) In the event the Extension Warrants are issued pursuant to the terms of the Notes, the
Company shall use its reasonable best efforts to amend the applicable Registration Statement or
file a new Registration Statement (on the short form available therefor, if applicable) so as to
cover the resale of the additional Registrable Securities on or prior to the applicable Filing
Date. The Company shall use its reasonable best efforts to cause such amendment or such new
Registration Statement to become effective as soon as reasonably possible but, in any event, no
later than the applicable Effectiveness Date, and shall use its reasonable best efforts to keep
such amendment or such new Registration Statement effective under the Securities Act during the
balance of the applicable Registration Period.
(c) Subject to the last sentence of this Section 2(c), if: (i) a Registration Statement under
subsection (a) above is not filed on or prior to its Filing Date (or an amendment or a new
Registration Statement under subsection (b) above, if required, is not filed on or prior to its
Filing Date), or (ii) a Registration Statement under subsection (a) above is not declared effective
by the Commission on or prior to its required Effectiveness Date (or an amendment or a new
Registration Statement under subsection (b) above, if required, is not declared effective by the
Commission on or prior to its required Effectiveness Date), or (iii) after its Effective Date,
without regard for the reason thereunder or efforts therefor, such Registration Statement under
subsection (a) above or such amendment or new Registration Statement under subsection (b) above
ceases for any reason to be effective and available to the Holders as to all Registrable Securities
to which it is required to cover at any time prior to the expiration of the Registration Period for
more than an aggregate of thirty (30) Trading Days during any 12-month period (which need not be
consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of
clauses (i) or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date
which such thirty (30) Trading Day-period is exceeded, being referred to as “Event Date”), then, in
addition to any other rights available to the Holders under this Agreement or under applicable law:
on the earlier of the last day of each 30-day period after each such Event Date (if the applicable
Event shall not have been cured by such date) or on the fifth Trading Day
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after the applicable Event has been cured, the Company shall pay to each Holder an amount in cash,
as liquidated damages and not as a penalty, equal to their pro rata portion of $25,000 (i.e., the
Holders in the aggregate shall be entitled to receive a penalty totaling $25,000 for each 30-day
period); provided that such penalty shall increase to $70,000 for each succeeding 30-day period in
the aggregate beginning on the 91st day after such Event Date. The liquidated damages pursuant to
the preceding sentence shall apply and be payable on a pro rata basis for any portion of a 30-day
period prior to the cure of an Event and shall cease to accrue (unless earlier ceased) upon
expiration of the Registration Period. Notwithstanding anything to the contrary in this Section
2(c), the Company shall not be required to make any payments under this Section 2(c) in the event
that (1) the subject Event or Event Date, or the failure to cure such Event or Event Date, is due
to the Company’s postponement (and the Company is hereby permitted to postpone) for a maximum of
ninety (90) days the filing or the effectiveness of a Registration Statement, by the Company’s
furnishing to the Holders a certificate signed by the Chief Executive Officer of the Company
stating the Company is in the process of filing a registration statement or proxy statement with
respect to an acquisition or disposition and as a result thereof, the registration required by this
Agreement could be materially detrimental to the Company, provided, however, that the Company may
use this right to postpone such filing or effectiveness only once during any twelve (12) month
period, or (2) the subject Event or Event Date, or the failure to cure such Event or Event Date, is
due to the Company’s postponement (and the Company is hereby permitted to postpone) of the filing
or the effectiveness of a Registration Statement following the announcement by the Company of a
Change of Control (as defined in the Notes), provided, however, that if such Change of Control is
not consummated, then the Company shall make all payments under this Section 2(c) that would have
been required had such Change of Control not been announced and this provision had not applied.
3. Registration Procedures.
In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Not less than three (3) Trading Days prior to the filing of a Registration Statement or
any related Prospectus or any amendment or supplement thereto, the Company shall furnish to the
Holders copies of all such documents proposed to be filed, which documents (other than those
incorporated or deemed to be incorporated by reference) will be subject to the review of such
Holders (and changes (if any) to correct appropriate information about the Holder). The Company
shall not file a Registration Statement or any such Prospectus or any amendments or supplements
thereto to which the Holders of a majority of the Registrable Securities shall reasonably object in
good faith, provided that, the Company is notified of such objection in writing no later than three
(3) Trading Days after the Holders have been so furnished copies of such documents.
(b) (i) Prepare and file with the Commission such amendments, including post-effective
amendments, to each Registration Statement and the Prospectus used in connection therewith as may
be necessary to keep such Registration Statement continuously effective as to the applicable
Registrable Securities for the applicable Registration Period; (ii) cause the related Prospectus to
be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended
to be filed pursuant to Rule 424; (iii) respond as
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promptly as reasonably possible to any comments received from the Commission with respect to each
Registration Statement or any amendment thereto; and (iv) comply in all material respects with the
provisions of the Securities Act and the Exchange Act with respect to the Registration Statements
and the disposition of all Registrable Securities covered by each Registration Statement.
(c) Notify the Holders of Registrable Securities to be sold (which notice shall, pursuant to
clauses (ii) through (v) hereof, be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made) as promptly as reasonably possible (i) with
respect to each Registration Statement or any post-effective amendment, when the same has become
effective; (ii) of any request by the Commission or any other Federal or state governmental
authority for amendments or supplements to a Registration Statement or Prospectus or for additional
information; (iii) of the issuance by the Commission of any stop order suspending the effectiveness
of a Registration Statement covering any or all of the Registrable Securities or the initiation of
any Proceedings for that purpose; (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any
Proceeding for such purpose; and (v) of the occurrence of any event or passage of time that makes
the financial statements included in a Registration Statement ineligible for inclusion therein or
any statement made in such Registration Statement or Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or that requires any
revisions to such Registration Statement, Prospectus or other documents so that, in the case of
such Registration Statement or the Prospectus, as the case may be, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading.
(d) Use its reasonable best efforts to avoid the issuance of, or, if issued, obtain the
withdrawal of (i) any order suspending the effectiveness of a Registration Statement, or (ii) any
suspension of the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) Furnish to each Holder, without charge, at least one conformed copy of each Registration
Statement and each amendment thereto, including financial statements and schedules, all documents
incorporated or deemed to be incorporated herein by reference (to the extent requested by such
Holder), and all exhibits to the extent requested by such Holder (including those previously
furnished) promptly after the filing of such documents with the Commission.
(f) Comply with Rule 172, promptly advise each Holder at any time the Company has not
satisfied the requirements of Rule 172 and promptly deliver to each Holder, without charge, as many
copies of each Prospectus or Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Persons may reasonably request in connection with resales by the Holder
of Registrable Securities. Subject to the terms of this Agreement, the Company hereby consents to
the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders
in connection with the offering and sale of the Registrable Securities covered by such Prospectus
and any amendment or supplement thereto.
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(g) Prior to any public offering of Registrable Securities by a Holder, use its reasonable
best efforts to register or qualify or cooperate with the selling Holders in connection with the
registration or qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or Blue Sky laws of all
jurisdictions within the United States as any Holder reasonably requests in writing, to keep each
such registration or qualification (or exemption therefrom) effective during the Registration
Period and to do any and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by each Registration
Statement; provided, that the Company shall not be required to qualify generally to do business in
any jurisdiction where it is not then so qualified, subject the Company to any material tax in any
such jurisdiction where it is not then so subject or file a general consent to service of process
in any such jurisdiction.
(h) If requested by the Holders, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to be delivered to a
transferee pursuant to the Registration Statements, which certificates shall be free, to the extent
permitted by the Purchase Agreement, of all restrictive legends, and to enable such Registrable
Securities to be in such denominations and registered in such names as any such Holders may
request.
(i) Upon the occurrence of any event contemplated by Sections 3(c)(ii) through (v), as
promptly as reasonably possible under the circumstances, and in the case of Section 3(c)(v) taking
into account the Company’s good faith assessment of any adverse consequences to the Company and its
stockholders of the premature disclosure of such event, prepare a supplement or amendment,
including a post-effective amendment, to the affected Registration Statements or a supplement to
the related Prospectus or any document incorporated or deemed to be incorporated therein by
reference, and file any other required document so that, as thereafter delivered, neither a
Registration Statement nor such Prospectus will contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading and that the
event that resulted in the suspension of such Prospectus is otherwise cured. If the Company
notifies the Holders in accordance with Sections 3(c)(ii) through (v) to suspend the use of any
Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall
suspend use of such Prospectus. The Company will use its reasonable best efforts to ensure that
the use of the Prospectus may be resumed as promptly as is practicable.
(j) Each Holder agrees to furnish to the Company a completed Questionnaire in the form
attached to this Agreement as Annex B (a “Selling Shareholder Questionnaire”) not less than
five (5) Trading Days prior to the date on which a Registration Statement under this Agreement is
to be filed or (if earlier) by the end of the fourth Trading Day following the date on which such
Holder receives draft materials in accordance with this Section. The Company shall not be required
to include the Registrable Securities of a Holder in a Registration Statement and shall not be
required to pay any liquidated or other damages under Section 2(c) hereof to such Holder who fails
to furnish to the Company a fully completed Selling Shareholder Questionnaire as required by this
Section or other information reasonably requested by the Company for compliance with applicable
registration and disclosure requirements.
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4. Registration Expenses. All fees and expenses of the Company incident to the
performance of or compliance with this Agreement by the Company shall be borne by the Company,
whether or not any Registrable Securities are sold pursuant to a Registration Statement, including
without limitation all registration, listing, and qualifications fees, printers and accounting
fees, and fees and disbursements of counsel for the Company.
5. Indemnification.
(a) Indemnification by the Company. The Company shall, notwithstanding any
termination of this Agreement, indemnify and hold harmless each Holder, the officers, directors,
agents, investment advisors, partners, members and employees of each of them, each Person who
controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act) and the officers, directors, agents and employees of each such controlling
Person, to the fullest extent permitted by applicable law, from and against any and all losses,
claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and
expenses (collectively, “Losses”) arising out of or relating to any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, any Prospectus or any form of
prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising
out of or relating to any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein (in the case of any Prospectus or form of
prospectus or supplement thereto, in light of the circumstances under which they were made) not
misleading, except to the extent, but only to the extent, that (1) such untrue statements or
omissions are based solely upon information regarding such Holder furnished in writing to the
Company by such Holder expressly for use therein, or to the extent that such information relates to
such Holder or such Holder’s proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use in the Registration
Statement, such Prospectus or such form of Prospectus or in any amendment or supplement thereto (it
being understood that the Holder has approved Annex A hereto for this purpose) or (2) in the case
of an occurrence of an event of the type specified in Section 3(c)(ii) through (v), the use by such
Holder of an outdated or defective Prospectus after the Company has notified such Holder in writing
that the Prospectus is outdated or defective and prior to the receipt by such Holder of the Advice
contemplated in Section 6(d) and provided such corrected prospectus would have avoided such Losses.
The Company shall notify the Holders promptly of the institution, threat or assertion of any
Proceeding of which the Company is aware arising from or in connection with the transactions
contemplated by this Agreement.
(b) Indemnification by Holders. Each Holder shall, severally and not jointly,
indemnify and hold harmless the Company, its directors, officers, agents and employees, each Person
who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act), and the directors, officers, agents or employees of such controlling Persons, to
the fullest extent permitted by applicable law, from and against all Losses to the extent arising
out of or relating to: (i) such Holder’s failure to comply with the prospectus delivery
requirements of the Securities Act after being advised by the Company that it has not satisfied the
conditions of Rule 172 and that such Holder is, as a consequence, required to deliver a prospectus
in connection with any disposition of Registrable Securities and has provided the Holder with a
current prospectus to be used in connection with any such dispositions or (ii) any untrue statement
of a material fact contained in any Registration Statement, any Prospectus, or
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any form of prospectus, or in any amendment or supplement thereto, or arising out of or relating to
any omission or alleged omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading to the extent, but only to the extent that, (1) such
untrue statements or omissions are based upon information regarding such Holder furnished in
writing to the Company by such Holder expressly for use therein, or to the extent that such
information relates to such Holder or such Holder’s proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such Holder expressly for use in
the Registration Statement (it being understood that the Holder has approved Annex A hereto for
this purpose), such Prospectus or such form of Prospectus or in any amendment or supplement thereto
or (2) in the case of an occurrence of an event of the type specified in Section 3(c)(ii) through
(v), the use by such Holder of an outdated or defective Prospectus after the Company has notified
such Holder in writing that the Prospectus is outdated or defective and prior to the receipt by
such Holder of the Advice contemplated in Section 6(d) and provided such corrected prospectus would
have avoided such Losses. In no event shall the liability of any selling Holder hereunder be
greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale
of the Registrable Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or
asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such
Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying
Party”) in writing, and the Indemnifying Party shall have the right to participate in, and, to the
extent the Indemnifying Party so desires, assume the defense thereof, including the employment of
counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses
incurred in connection with defense thereof; provided, that the failure of any Indemnified Party to
give such notice shall not relieve the Indemnifying Party of its obligations or liabilities
pursuant to this Agreement, except to the extent that the Indemnifying Party is prejudiced by such
failure, including impairment in its ability to defend such action.
An Indemnified Party shall have the right to employ separate counsel in any such Proceeding
and to participate in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party shall have
failed promptly to assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or (2) the named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party, and such Indemnified Party shall reasonably believe based upon the advice of
counsel that a conflict of interest is likely to exist if the same counsel were to represent such
Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof
and such counsel (one law firm) shall be at the expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without
its written consent, which consent shall not be unreasonably withheld. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement
includes an unconditional release of such Indemnified Party from all
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liability on claims that are the subject matter of such Proceeding. The Indemnified Party shall
cooperate fully with the Indemnifying Party in connection with any negotiation or defense of any
such Proceeding by the Indemnifying Party and shall furnish to the Indemnifying Party all
information reasonably available to the Indemnified Party that relates to such Proceeding.
Subject to the terms of this Agreement, all reasonable fees and expenses of the Indemnified
Party subject to indemnification under Section 5(a) (including reasonable fees and expenses to the
extent incurred in connection with investigating or preparing to defend such Proceeding in a manner
not inconsistent with these Sections) shall be paid to the Indemnified Party, as incurred, within
ten (10) Trading Days of written notice thereof to the Indemnifying Party (provided, that the
Indemnifying Party may require such Indemnified Party to undertake to reimburse all such fees and
expenses to the extent it is finally judicially determined that such Indemnified Party is not
entitled to indemnification hereunder).
(d) Contribution. In the event that indemnification under Section 5(a) or 5(b) is
unavailable to or insufficient to hold harmless an Indemnified Party for any Losses (by reason of
unenforceability due to public policy or otherwise), then each Indemnifying Party shall contribute
to the amount paid or payable by such Indemnified Party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement of a material fact
or omission or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such action,
statement or omission. The amount paid or payable by a party as a result of any Losses shall be
deemed to include, subject to the limitations set forth in Section 5(c), any reasonable attorneys’
or other reasonable fees or expenses incurred by such party in connection with any Proceeding to
the extent such party would have been indemnified for such fees or expenses if the indemnification
provided for in this Section was available to such party in accordance with its terms.
The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 5(d) were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), no Holder shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the proceeds actually
received by such Holder from the sale of the Registrable Securities subject to the Proceeding
exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission or other event under 5(a)
or 5(b), as the case may be, to which such contribution applies.
The indemnity and contribution agreements contained in this Section are in addition to any
liability that the Indemnifying Parties may have to the Indemnified Parties.
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6. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a Holder, of any of their
obligations under this Agreement, each Holder or the Company, as the case may be, in addition to
being entitled to exercise all rights granted by law and under this Agreement, including recovery
of damages, will be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate compensation for any
losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby
further agree that, in the event of any action for specific performance in respect of such breach,
it shall waive the defense that a remedy at law would be adequate.
(b) No Piggyback on Registrations. Except as and to the extent specified in
Schedule 6(b) hereto, neither the Company nor any of its security holders (other than the
Holders in such capacity pursuant hereto) may include securities of the Company in the Registration
Statement other than the Registrable Securities and any shares of Common Stock issued upon
redemption of the Notes in accordance with the terms of the Notes, and the Company shall not after
the date hereof enter into any agreement providing any such right to any of its security holders.
(c) Compliance. Each Holder covenants and agrees that (i) it will comply with the
prospectus delivery requirements of the Securities Act as applicable to it in connection with sales
of Registrable Securities pursuant to the Registration Statement; and (ii) it has no present plan,
intention or understanding and has made no arrangement to sell the Registrable Securities at any
predetermined time or for any predetermined price (other than such Holder’s right to sell the
Registrable Securities pursuant to a Registration Statement filed pursuant hereto).
(d) Discontinued Disposition. Each Holder agrees by its acquisition of such
Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any
event of the kind described in Section 3(c), such Holder will forthwith discontinue disposition of
such Registrable Securities under the Registration Statement until such Holder’s receipt of the
copies of the supplemented Prospectus and/or amended Registration Statement or until it is advised
in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed,
and, in either case, has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus or Registration
Statement. The Company will use its reasonable best efforts to ensure that the use of the
Prospectus may be resumed as promptly as practicable. The Company may provide appropriate stop
orders to enforce the provisions of this paragraph.
(e) Piggy-Back Registrations. If at any time during the Effectiveness Period there
is not an effective Registration Statement covering all of the Registrable Securities then required
hereunder to be registered at such time and the Company shall determine to prepare and file with
the Commission a registration statement relating to an offering for its own account or the account
of others under the Securities Act of any of its equity securities, other than on Form S-4 or Form
S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any entity or business or
equity securities issuable in connection with stock option or other employee benefit
11
plans, then the Company shall send to each Holder written notice of such determination and, if
within fifteen days after receipt of such notice, any such Holder shall so request in writing, the
Company shall include in such registration statement all or any part of such Registrable Securities
(not already covered by an effective Registration Statement) such holder requests to be registered,
subject to customary underwriter cutbacks applicable to holders of registration rights and subject
to restrictions in prior registration agreements.
(f) Amendments and Waivers. No provision of this Agreement may be waived or amended
and waivers or consents to departures from the provisions hereof may not be given except in a
written instrument signed by the Company and the Holders who hold (or have the right to acquire
upon exercise of the Warrants and, if applicable, the Extension Warrants) majority of the shares of
Common Stock issued or issuable upon exercise of the Warrants and, if applicable, the Extension
Warrants. No waiver of any default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent
default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair the exercise of any
such right. Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of one or more Holders and
that does not directly or indirectly affect the rights of other Holders may be given by Holders to
which such waiver or consent relates; provided, however, that the provisions of this sentence may
not be amended, modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(g) Notices. Any and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be delivered as set forth in the Purchase Agreement.
(h) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties and shall inure to the
benefit of each Holder. The Company may not assign its rights or obligations hereunder without the
prior written consent of each Holder of then-outstanding Registrable Securities. Each Holder may
assign their respective rights hereunder in the manner and to the Persons as permitted under the
Purchase Agreement.
(i) Execution and Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original and, all of which
taken together shall constitute one and the same Agreement. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed) the same with the same force and
effect as if such facsimile signature were the original thereof.
(j) Governing Law. All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the principles of conflicts of
law thereof. Each party agrees that all Proceedings to resolve any dispute concerning the
interpretations, enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, employees
12
or agents) shall be commenced exclusively in the state and federal courts sitting in the City of
New York, Borough of Manhattan (the “New York Courts”) although depositions may be taken in other
places. Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the New York
Courts for the adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not
to assert in any Proceeding, any claim that it is not personally subject to the jurisdiction of any
New York Court, or that such Proceeding has been commenced in an improper or inconvenient forum.
Each party hereto hereby irrevocably waives personal service of process and consents to process
being served in any such Proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in effect for notices
to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any manner permitted by law. Each party hereto hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any Proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. If either party shall commence a Proceeding to enforce any provisions of this
Agreement, then the prevailing party in such Proceeding shall be reimbursed by the other party for
its attorney’s fees and other costs and expenses incurred with the investigation, preparation and
prosecution of such Proceeding.
(k) Cumulative Remedies. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
(l) Severability. If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions without including
any of such that may be hereafter declared invalid, illegal, void or unenforceable.
(m) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
(n) Independent Nature of Holders’ Obligations and Rights. The obligations of each
Holder hereunder are several and not joint with the obligations of any other Holder hereunder, and
no Holder shall be responsible in any way for the performance of the obligations of any other
Holder hereunder. The decision of each Holder to acquire Registrable Securities pursuant to the
Transaction Documents has been made independently of any other Holder. Nothing contained herein or
in any other agreement or document delivered at any closing, and no action taken by any Holder
pursuant hereto or thereto, shall be deemed to constitute the Holders as a partnership, an
association, a joint venture or any other kind of entity, or create a presumption that the Holders
are in any way acting in concert with respect to such obligations or the transactions contemplated
by this Agreement. Each Holder acknowledges that no other Holder has acted as agent for such
Holder in connection with making its investment hereunder
13
and that no Holder will be acting as agent of such Holder in connection with monitoring its
investment in the Securities or enforcing its rights under the Transaction Documents. Each Holder
shall be entitled to protect and enforce its rights, including without limitation the rights
arising out of this Agreement, and it shall not be necessary (but may be permissible) for any other
Holder to be joined as an additional party in any Proceeding for such purpose.
14
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS REGISTRATION RIGHTS Agreement as of the
date first written above.
| HOLLYWOOD MEDIA CORP. |
||||
| By: | /s/ Xxxxxxxx Xxxxxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxxxxx | |||
| Title: | Chairman and Chief Executive Officer | |||
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES OF INVESTORS TO FOLLOW]
SIGNATURE PAGES OF INVESTORS TO FOLLOW]
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| INVESTOR | ||||||
| Bonanza Master Fund Ltd. | ||||||
| By: | /s/ Xxxxx Xxxxx
|
|||||
| Name: Xxxxx Xxxxx | ||||||
| Title: Managing Director | ||||||
| Address for Notice and Residence: | ||||||
| 000 Xxxxxxxx Xxxxx | ||||||
| Xxxxx 0000 | ||||||
| Xxxxxx, XX 00000 | ||||||
| Phone: 000.000.0000 | ||||||
| Email: xxxxxx@xxxxxxxxxxxxxx.xxx | ||||||
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| INVESTOR | ||||||
| JMG Capital Partners, L.P. | ||||||
| By: | /s/ Xxxxxxxx Xxxxxx
|
|||||
| Name: Xxxxxxxx Xxxxxx | ||||||
| Title: Member Manager of the GP | ||||||
| Address for Notice and Residence: | ||||||
| 00000 Xxxxxxxx Xxxx. Xxxxx 0000 | ||||||
| Xxx Xxxxxxx, XX 00000 | ||||||
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| INVESTOR | ||||||
| JMG Triton Offshore Fund Ltd. | ||||||
| By: | /s/ Xxxxxxxx Xxxxxx Title: Member Manager |
|||||
| Address for Notice and Residence: | ||||||
| Notice: | 00000 Xxxxxxxx Xxxx. Xxxxx 0000 | |||
| Xxx Xxxxxxx, XX 00000 | ||||
| Residence: | Wickams Cay | |||
| Road Town Tortola | ||||
| Xxxx Xxxxxxxxx 0 | ||||
| Xxxxxxx Xxxxxxxxxxx Antilles | ||||
| BV1 |
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| INVESTOR | ||||||
| WS Opportunity Fund International, Ltd. | ||||||
| By: | WS Ventures Management, L.P., as agent and attorney-in-fact |
|||||
| By: | WSV Management, L.L.C., General Partner | |||||
| By: | /s/ Xxxxxxx Xxxxxx | |||||
| Xxxxxxx Xxxxxx, Member | ||||||
| WS Opportunity Fund International, Ltd. 000 Xxxxxxxx Xxxxx, Xxxxx 0000 Xxxxxx, XX 00000 000-000-0000 (telephone) 000-000-0000 (fax) Attn: Xxx Xxxxxxx (xxx@xxxxxxxxx.xxx) |
||||||
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of
the date first written above.
| INVESTOR | |||||
| WS Opportunity Fund, L.P. | |||||
| By: | WS Ventures Management, L.P., General Partner | ||||
| By: | WSV Management, L.L.C., General Partner | ||||
| By: | /s/ Xxxxxxx Xxxxxx | ||||
| Xxxxxxx Xxxxxx, Member | |||||
| WS Opportunity Fund, L.P. | |||||
| 000 Xxxxxxxx Xxxxx, Xxxxx 0000 | |||||
| Xxxxxx, XX 00000 | |||||
| 000-000-0000 (telephone) | |||||
| 000-000-0000 (fax) | |||||
| Attn: Xxx Xxxxxxx (xxx@xxxxxxxxx.xxx) | |||||
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| INVESTOR | |||||
| WS Opportunity Fund (QP), L.P. | |||||
| By: | WS Ventures Management, L.P., General Partner | ||||
| By: | WSV Management, L.L.C., General Partner | ||||
| By: | /s/ Xxxxxxx Xxxxxx | ||||
| Xxxxxxx Xxxxxx, Member | |||||
| WS Opportunity Fund (QP), L.P. | |||||
| 000 Xxxxxxxx Xxxxx, Xxxxx 0000 | |||||
| Xxxxxx, XX 00000 | |||||
| 000-000-0000 (telephone) | |||||
| 000-000-0000 (fax) | |||||
| Attn: Xxx Xxxxxxx (xxx@xxxxxxxxx.xxx) | |||||
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| INVESTOR | |||||
| SRB Greenway Capital, LP | |||||
| By: | SRB Management, L.P., General Partner | ||||
| By: | BC Advisors, L.L.C., General Partner | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | ||||
| Xxxxxx X. Xxxxxx, Member | |||||
| SRB Greenway Capital, L.P. | |||||
| 000 Xxxxxxxx Xxxxx, Xxxxx 0000 | |||||
| Xxxxxx, XX 00000 | |||||
| 000-000-0000 (telephone) | |||||
| 000-000-0000 (fax) | |||||
| Attn: Xxx Xxxxxxx (xxx@xxxxxxxxx.xxx) | |||||
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| INVESTOR | |||||
| SRB Greenway Offshore Operating Fund, L.P. | |||||
| By: | SRB Management, L.P., General Partner | ||||
| By: | BC Advisors, L.L.C., General Partner | ||||
| By: | /s/ Xxxxxx Xxxxxx | ||||
| Xxxxxx Xxxxxx, Member | |||||
| SRB Greenway Offshore Operating Fund, L.P. | |||||
| 000 Xxxxxxxx Xxxxx, Xxxxx 0000 | |||||
| Xxxxxx, XX 00000 | |||||
| 000-000-0000 (telephone) | |||||
| 000-000-0000 (fax) | |||||
| Attn: Xxx Xxxxxxx (xxx@xxxxxxxxx.xxx) | |||||
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| INVESTOR | |||||
| SRB Greenway Capital (QP), L.P. | |||||
| By: | SRB Management, L.P., General Partner | ||||
| By: | BC Advisors, L.L.C., General Partner | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | ||||
| Xxxxxx X. Xxxxxx, Member | |||||
| SRB Greenway Capital (QP), L.P. | |||||
| 000 Xxxxxxxx Xxxxx, Xxxxx 0000 | |||||
| Xxxxxx, XX 00000 | |||||
| 000-000-0000 (telephone) | |||||
| 000-000-0000 (fax) | |||||
| Attn: Xxx Xxxxxxx (xxx@xxxxxxxxx.xxx) | |||||
