Exhibit 10.6
EXCHANGE AGREEMENT
Exchange Agreement, dated as of December 14, 2001, by and between
Hollywood Media Corp. (the "Company") and Xxxxxx X. Xxxxxxx (the "Executive").
WHEREAS, Xxxxxx Xxxxxxx has served as the Vice Chairman and President
of the Company from its inception in 1993;
WHEREAS, the Executive is a party to an Employment Agreement, dated as
of July 1, 1993, and amended as of July 1, 1998, with the Company (the
"Employment Agreement");
WHEREAS, the Executive holds options to purchase 522,500 shares of the
Company's common stock, par value $.01 per share (the "Common Stock"), at a
purchase price of $8.00 or more per share and the Company's common stock has
recently traded on the Nasdaq National Market at $4.00 per share.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the parties hereto agree as follows:
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed thereto in the Employment Agreement.
1. Outstanding Options. The Executive holds options to purchase 522,500
shares of the Common Stock as identified on Schedule I attached hereto
(collectively, the "Options"). The aggregate fair value of the Options
using the Black-Scholes valuation model is $1,041,364.
2. Exchange for Common Stock. Effective as of the date of this Agreement,
the Options shall be cancelled and no longer in effect and in place
thereof, the Executive shall receive a grant of 260,341 shares of
Common Stock (the "Shares"), which values the Common Stock at $4.00 per
share.
3. Vesting. Fifty percent (50%) of the Shares held by the Executive shall
vest on June 30, 2002 and the remaining fifty percent (50%) of the
Shares held by the Executive shall vest on January 1, 2003. The Shares
shall not be sold, assigned, pledged or otherwise transferred by the
Executive prior to vesting. Any attempted transfer of the Shares prior
to vesting shall be void and of no force or effect. In the event that
any other person succeeds to all or any part of the interest of the
Executive in the Shares, by operation of law or otherwise, such holder
and any succeeding holder shall hold such interest subject to the
restrictions imposed by this Agreement, including without limitation
those restrictions relating to vesting and the forfeiture of unvested
Shares upon a termination of employment of the Executive.
Notwithstanding the foregoing:
(a) If the Executive's employment by the Company is terminated
by the Company without Cause, or as a result of the Executive's death or
Disability, then all of the Shares shall vest on the date of termination.
(b) All of the Shares shall vest upon the occurrence of a
Change of Control with respect to the Company.
(c) If, at any time prior to January 1, 2003, the Executive's
employment with the Company is terminated (i) by the Executive or (ii) by the
Company with Cause, then any Shares that are not vested shall be reacquired by
the Company immediately upon such termination for no consideration and thereby
forfeited to the Company.
4. Notices. All notices under this agreement shall be in writing and shall
be delivered by personal service, facsimile or registered or certified
mail (if such service is not available, then by first class mail),
postage pre-paid, to:
If to the Company:
-----------------
Hollywood Media Corp.
0000 Xxxxxx Xxxx, Xxxxx 000X
Xxxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attention: General Counsel
If to the Executive:
-------------------
Xx. Xxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxx, Xxxxx 000X
Xxxx Xxxxx, XX 00000
Fax: (000) 000-0000
All notices shall be deemed given when received.
5. No Effect on Terms of Employment. This Agreement is not a contract of
employment and the terms of the Executive's employment shall not be
affected hereby or by any agreement referred to herein except to the
extent specifically so provided. Nothing herein shall be construed to
impose any obligation on the Company to continue the Executive's
employment and it shall not impose any obligation on the Executive's
part to remain in the employ of the Company.
6. Transfer Restrictions. Executive covenants and agrees with the Company:
(a) that she is acquiring the Shares for her own account and not with a
view to the resale or distribution thereof;
(b) that any subsequent offer for sale or sale of any of the Shares
shall be made either:
(i) pursuant to a Registration Statement on an
appropriate form under the Securities Act of 1933
(the "Act"), which Registration Statement shall have
become effective and shall be current with respect to
the shares being offered and sold, or
(ii) a specific exemption from the registration
requirements of the Act, but in claiming such
exemption, the Executive shall, prior to any offer
for sale or sale of such shares, obtain a favorable
written opinion from counsel for or approved by the
Company as to the applicability of such exemption,
and
(c) that the certificates evidencing the Shares shall bear a legend to
the effect of the foregoing restrictions set forth in this Section 6. For so
long as the Shares remain unvested in whole or in part, certificates for
unvested Shares shall also bear a legend to the effect that the Shares are
subject to the restrictions on transfer and Company reacquisition right set
forth in Section 3 of this Agreement.
7. Severability of Provisions. If any provision of this Agreement shall be
held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provision hereof and this agreement shall be
construed and enforced as if it did not include such provision.
8. Amendment. This Agreement cannot be amended except by a writing
executed by the Company and the Executive.
9. Applicable Law; Headings. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Florida, without giving effect to the conflicts of laws principles
thereof. The headings in this agreement are solely for convenience of
reference and shall not affect its meaning or interpretation.
HOLLYWOOD MEDIA CORP.
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
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Title: Chief Operating Officer
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Attest: /s/ Xxxxxxx X. Xxxxxx
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/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
