REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated
as of May 1, 2001, is entered into between HOLLYWOOD MEDIA CORP.,
a Florida corporation (the "Company") and VIACOM INC., a Delaware
corporation ("Viacom" or the "Purchaser").
WHEREAS, the Company and the Purchaser have entered into
that certain Securities Purchase Agreement (the "Securities
Purchase Agreement"), dated as of April 25, 2001, pursuant to
which the Company has agreed to issue and sell to the Purchaser
an aggregate of (i) 310,425 shares of its Common Stock (the
"Common Shares"), (ii) "A" warrants to purchase up to 162,973
shares of its Common Stock and (iii) "B" warrants to acquire up
to 439,251 shares of its Common Stock (the "A" and "B" warrants
together, the "Warrants"); and
WHEREAS, pursuant to the terms of, and in partial
consideration for, the Purchaser's agreement to enter into the
Securities Purchase Agreement, the Company has agreed to provide
the Purchaser with certain registration rights with respect to
the Common Stock. "Common Stock" means the Company's Common
Stock, par value $0.01 per share;
NOW, THEREFORE, in consideration of the foregoing premises,
the representations, warranties, covenants and agreements
contained herein and in the Securities Purchase Agreement and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Capitalized terms used herein and
defined in the Securities Purchase Agreement shall have the same
respective meanings herein as are ascribed to them therein. In
addition, the following terms shall have the meanings ascribed to
them below:
"Purchaser" shall mean the Purchaser referenced in the
preamble, and, unless the context otherwise requires, shall
include the Purchaser for so long as it owns any Registrable
Securities and any assignee or transferee of the Common Shares,
the Warrants, the Warrant Shares or the Registrable Securities to
which the registration rights conferred by this Agreement have
been transferred in compliance with this Agreement and that is
the registered holder of the Common Shares, the Warrants, the
Warrant Shares or the Registrable Securities, as the case may be.
"Registrable Securities" means all of the Common Shares, the
Warrant Shares and any other securities of the Company that are
issued or issuable upon the exercise of the Warrants (the "Common
Securities") until (i) a registration statement under the
Securities Act covering the offer and sale of the Common
Securities has been declared effective by the Commission and the
Common Securities have been disposed of pursuant to such
effective registration statement, (ii) the Common Securities are
sold under circumstances in which all of the applicable
conditions of Rule 144 (or any similar provision then in force)
under the Securities Act ("Rule 144") are met, (iii) such Common
Securities have been otherwise transferred and the Company has
delivered a new certificate or other evidence of ownership for
the Common Securities not bearing a restrictive legend or (iv)
such time as, in the opinion of counsel to the Company, which
counsel shall be reasonably acceptable to the Purchaser, such
Common Securities may be sold without any time, volume or manner
limitation pursuant to Rule 144(k) (or any similar provision then
in effect) under the Securities Act.
"Registration Statement" means the registration statement
filed by the Company pursuant to Section 2.1(a) and any
additional registration statement filed by the Company pursuant
to Section 2.1(b).
"Underwriter" means a securities dealer that purchases any
Registrable Securities as principal in an underwritten offering
and not as part of such dealer's market-making activities.
"Warrant Shares" means the shares of Common Stock issuable
upon exercise of the Warrants.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 Registration Requirements. The Company shall use
its commercially reasonable efforts to effect the registration of
the Registrable Securities (including, without limitation, the
execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable blue sky or other
state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act) as would permit or
facilitate the sale or distribution of all the Registrable
Securities in the manner (including manner of sale) and in all
states reasonably requested by any Purchaser. Such commercially
reasonable efforts by the Company shall include the following:
(a) The Company will as expeditiously as possible, and in no
event later than June 29, 2001 (the "Filing Deadline"), prepare
and file with the Commission a registration statement (the
"Registration Statement") on Form S-3 (if use of such form is
then available to the Company pursuant to the rules of the
Commission and, if not, on such other form promulgated by the
Commission for which the Company then qualifies and that counsel
for the Company shall deem appropriate and which form shall be
available for the resale of the Registrable Securities to be
registered thereunder in accordance with the provisions of this
Agreement and in accordance with the intended method of
distribution of such Registrable Securities), and use its
commercially reasonable efforts to cause such filed Registration
Statement to become effective by the Effectiveness Deadline. The
"Effectiveness Deadline" shall mean, as applicable, (i) in the
event such Registration Statement is not subject to review by the
Commission, five (5) business days after the date that the
Company is first advised by the Commission, whether orally or in
writing, that such Registration Statement will not be subject to
review by the Commission and (ii) in the event such Registration
Statement shall be subject to review by the Commission, the
earlier of one hundred and twenty (120) days from the date of
this Agreement or five (5) business days after the date that the
Company is first advised by the Commission, whether orally or in
writing, that it has no further comments in connection with its
review of the Registration Statement. The Company will as
expeditiously as possible prepare and file with the Commission
such amendments and supplements to the Registration Statement and
the prospectus used in connection therewith as may be necessary
to keep the Registration Statement effective for a period of not
less than: (i) in the case of a non-underwritten offering of
Registrable Securities, until there shall no longer be any
Registrable Securities or (ii) with respect to an underwritten
offering of Registrable Securities, ninety (90) days after the
commencement of the distribution of Registrable Securities
covered by the Registration Statement (but not before the
expiration of the period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder, if applicable), and the
Company will comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
Registration Statement during such period in accordance with the
intended methods of disposition by a Purchaser as set forth in
the Registration Statement.
(b) The number of Registrable Securities covered by the
initial Registration Statement shall equal 912,649 shares of
Common Stock of the Company. If at any time the initial
Registration Statement is not sufficient to cover all Registrable
Securities the Company shall as expeditiously as possible (and
in no event more than forty-five (45) days from the date of
the event that results in such change) file a post-effective
amendment to the Registration Statement (or, if necessary file
or cause to be filed a new or additional Registration Statement)
to reflect the registration of the offer and resale of such
additional or other securities and use its commercially reasonable
efforts to cause such post-effective amendment or new or additional
Registration Statement to become effective within one hundred and
twenty (120) days (or in the event such Registration Statement
is not subject to review by the Commission or, if subject to review
by the Commission, five (5) business days after the date that the
Company is first advised by the Commission, whether orally or in
writing, that such Registration Statement will not be subject to
review by the Commission or that it has no further comments in
connection with its review of the Registration Statement) from
the date of the event that results in such change. In the event
the filing of a new or additional Registration Statement is
required, references herein to the Registration Statement shall
also refer to such new or additional registration statement
(except that for purposes of Section 2.1(a) above, the Filing
Deadline shall refer to the end of the forty-five (45) day period
referenced above and the Effectiveness Deadline shall refer to
the end of the one hundred and twenty (120) day or shorter period
(based upon completion of the Commission's review of such
Registration Statement) referenced above).
(c) The Company will, prior to filing the Registration
Statement or prospectus or any amendment or supplement thereto,
furnish to the Purchaser, its counsel, and each Underwriter,
if any, of the Registrable Securities covered by such
Registration Statement copies of such Registration Statement and
prospectus or any amendment or supplement thereto as proposed
to be filed, together with exhibits thereto, as well as any comment
letters received from the Commission, which documents will be subject
to review and approval by the foregoing persons (such approval not to
be unreasonably withheld or delayed), and thereafter furnish to the
Purchaser, its counsel and each Underwriter, if any, such number
of copies of such Registration Statement, each amendment and
supplement thereto (in each case including all exhibits thereto
and documents incorporated by reference therein), the prospectus
included in such Registration Statement (including each
preliminary prospectus) and such other documents or information,
as the Purchaser, its counsel or each Underwriter may reasonably
request in order to facilitate the disposition of the Registrable
Securities.
(d) The Company will use its commercially reasonable efforts
to (i) register or qualify such Registrable Securities under such
other securities or blue sky laws of such jurisdictions in the
United States as any Purchaser may reasonably (in light of its
intended plan of distribution) request and (ii) if applicable,
cause such Registrable Securities to be registered with or
approved by such other governmental agencies or authorities in
the United States as may be necessary by virtue of the business
and operations of the Company and do any and all other acts and
things that may be reasonably necessary or advisable to enable
such Purchaser to consummate the disposition of the Registrable
Securities; provided that the Company will not be required to (A)
qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for the
fulfillment of its obligation under this paragraph (d), (B)
subject itself to taxation in any such jurisdiction or (C)
consent or subject itself to general service of process in any
such jurisdiction.
(e) The Company will promptly notify the Purchaser upon the
occurrence of any of the following events in respect of the
Registration Statement or related prospectus in respect of an
offering of Registrable Securities: (i) receipt of any request
for additional information by the Commission or any other federal
or state governmental authority during the period of
effectiveness of the Registration Statement for amendments or
supplements to the Registration Statement or related prospectus;
(ii) the issuance by the Commission or any other federal or state
governmental authority of any stop order suspending the
effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose; (iii) receipt 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; (iv) the
happening of any event that makes any statement made in the
Registration Statement or related prospectus or any document
incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any
changes in the Registration Statement, related prospectus or
documents so that (or the Company otherwise becomes aware of any
statement included in the Registration Statement, related
prospectus or documents that is untrue in any material respect or
that requires the making of any changes in the Registration
Statement, related prospectus or documents so that), in the case
of the Registration Statement, 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 not misleading, and that in the case of the related
prospectus, 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
the light of the circumstances under which they were made, not
misleading; and (v) the Company's reasonable determination that a
post-effective amendment to the Registration Statement would be
appropriate (in which event the Company will promptly make
available to the Purchaser any such supplement or amendment to
the Registration Statement and, as applicable, the related
prospectus).
(f) The Company will enter into customary agreements
(including, if applicable, an underwriting agreement in customary
form and that is reasonably satisfactory to the Company) and take
such other actions as are reasonably required in order to expedite
or facilitate the disposition of the Registrable Securities (the
Purchaser may, at its option, require that any or all of the
representations, warranties and covenants of the Company to or
for the benefit of any applicable Underwriter also be made to and
for the benefit of the Purchaser).
(g) The Company will make available to the Purchaser (and
will deliver to its counsel) and each Underwriter, if any, subject
to restrictions imposed by the United States federal government or
any agency or instrumentality thereof, copies of all
correspondence between the Commission and the Company, its
counsel or auditors and will also make available, subject to
restrictions imposed by the United States federal government or
any agency or instrumentality thereof, for inspection by the
Purchaser, its counsel, any Underwriter participating in any
disposition pursuant to a Registration Statement and any
attorney, accountant or other professional retained by the
Purchaser or such Underwriter (collectively, the "Inspectors"),
all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records") as
shall be reasonably necessary to enable them to exercise their
due diligence responsibility, and cause the Company's officers
and employees to supply all information reasonably requested by
any Inspectors in connection with the Registration Statement.
Records that the Company determines, in good faith, to be
confidential and that it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the
disclosure of such Records is necessary in the reasonable opinion
of the Inspectors to avoid or correct a misstatement or omission
in the Registration Statement or (ii) the disclosure or release
of such Records is requested or required pursuant to oral
questions, interrogatories, requests for information or documents
or a subpoena or other order from a court of competent
jurisdiction or other process; provided that prior to any
disclosure or release pursuant to clause (ii), the Inspectors
shall provide the Company with prompt notice of any such request
or requirement so that the Company may seek an appropriate
protective order or waive such Inspectors' obligation not to
disclose such Records; and, provided further, that if failing the
entry of a protective order or the waiver by the Company
permitting the disclosure or release of such Records, the
Inspectors, upon written advice of counsel, are compelled to
disclose such Records, the Inspectors may disclose that portion
of the Records that counsel has advised the Inspectors that the
Inspectors are compelled to disclose. The Company may require,
as a condition to the disclosure to any Inspector of any
confidential information, that such Inspector execute and deliver
to the Company a written agreement, in form and substance
reasonably satisfactory to the Company, pursuant to which such
Inspector agrees to the confidential treatment of such
information as contemplated above. The Purchaser agrees that
information obtained by it as a result of such inspections (not
including any information obtained from a third party who is not
prohibited from providing such information by a contractual,
legal or fiduciary obligation to the Company) shall be deemed
confidential and shall not be used by it as the basis for any
market transactions in the securities of the Company or its
Affiliates unless and until such information is made generally
available to the public. The Purchaser further agrees that it
will, upon learning that disclosure of such Records is sought in
a court of competent jurisdiction, give notice to the Company and
allow the Company, at its expense, to undertake appropriate
action to prevent disclosure of the Records deemed confidential.
(h) The Company will furnish to the Purchaser and to each
Underwriter, if any, a signed counterpart, addressed to the
Purchaser and such Underwriter, of (1) an opinion or opinions of
counsel to the Company and (2) a comfort letter or comfort
letters from the Company's independent public accountants, each
in customary form and covering such matters of the type
customarily covered by opinions or comfort letters, as the case
may be, as any Purchaser or the managing Underwriter therefor
reasonably requests. The Company agrees that, (x) upon
effectiveness of the Registration Statement and (y) if requested
by the Purchaser, upon the effectiveness of each amendment
thereto subsequent to effectiveness of the Registration
Statement, whether by the filing of a post-effective amendment
thereto or the incorporation by reference of reports subsequently
filed with the Commission, it will cause to be delivered to the
Purchaser (i) if applicable and only to the extent permitted by
the rules of the AICPA, a comfort letter in customary form from
its independent public accountants and (ii) if applicable, an
opinion of counsel to the Company, covering customary matters,
including a statement providing negative assurances as to the
absence of any untrue statement of a material fact or omission to
state any material fact required to be stated therein or
necessary to make the statements contained in the Registration
Statement and in the case of the related prospectus (as so
amended), in light of circumstance in which they were made, not
misleading.
(i) The Company will comply with all applicable rules and
regulations of the Commission, including, without limitation,
compliance with applicable reporting requirements under the
Exchange Act, and will make available to its security holders, as
soon as reasonably practicable, an earning statement covering a
period of twelve (12) months, beginning within three (3) months
after the effective date of the Registration Statement, which
earning statement shall satisfy the provisions of Section 11(a)
of the Securities Act.
(j) The Company will appoint the then existing transfer agent
and registrar for the Common Stock as its transfer agent and
registrar for all the Registrable Securities covered by the
Registration Statement not later than the effective date of the
Registration Statement.
(k) The Company shall take all steps necessary to enable the
Purchaser to avail itself of the prospectus delivery mechanism
set forth in Rule 153 (or successor thereto) under the Securities
Act, if available.
(l) In connection with an underwritten offering, the Company
will cooperate, to the extent reasonably requested by the
managing Underwriter for the offering or a Purchaser, in
customary efforts to sell the securities under the offering,
including, without limitation, participating in "road shows" on a
schedule as shall be reasonably satisfactory to, and not unduly
burdensome on, the Company; provided that the Company shall not
be obligated to participate in more than one such offering in any
twelve (12) -month period and any such participation by the
Company shall be at the expense of the managing Underwriter or
the requesting Purchaser unless the Company shall also be
offering securities in such underwritten offering.
(m) The Company may require the Purchaser promptly to furnish
in writing to the Company such information regarding the intended
methods of distribution of the Registrable Securities as the
Company may from time to time reasonably request and such other
information as may be legally required in connection with such
registration, including, without limitation, all such information
as may be requested by the Commission or the NASD or any state
securities commission or similar authority. If a Purchaser fails
to provide such information requested in connection with such
registration within ten (10) business days after receiving such
written request, then the Company may cease pursuit of such
registration in respect of the Purchaser's Registrable Securities
until such information is provided.
(n) The Purchaser agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described
in Section 2.1(e) hereof, such Purchaser will forthwith
discontinue disposition of Registrable Securities pursuant to the
Registration Statement until such Purchaser's receipt of the
copies of the supplemented or amended prospectus contemplated by
Section 2.1(e)(iv) hereof, and, if so directed by the Company,
the Purchaser will deliver to the Company all copies, other than
permanent file copies then in the Purchaser's possession, of the
most recent prospectus covering the Registrable Securities at the
time of receipt of such notice.
(o) Notwithstanding any other provision set forth in this
Agreement, the Purchaser may not undertake to sell Registrable
Securities by means of an underwriten offering without the prior
written consent of the Company, which may be withheld by the
Company in its sole discretion.
[(p) The Purchaser may sell or transfer any and all
Registrable Securities held by it pursuant to the Registration
Statement required to be prepared and filed by the Company or any
other registration pursuant to this Agreement, notwithstanding
any other restrictions on such sales and transfers set forth in
any other agreement between the Purchaser and the Company
including without limitation the Investor Rights Agreement dated
January 3, 2000.]
SECTION 2.2 Registration Expenses. In connection with
registration hereunder, the Company shall pay the following
registration expenses incurred in connection therewith (the
"Registration Expenses"): (i) all registration and filing fees,
(ii) fees and expenses of compliance with securities or blue sky
laws (including reasonable fees and disbursements of a single
firm of counsel retained by Company in connection with blue sky
qualifications of the Registrable Securities), (iii) printing
expenses, (iv) the Company's internal expenses (including,
without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), (v) the fees
and expenses incurred in connection with the listing or quotation
of the Registrable Securities, (vi) fees and disbursements of
counsel for the Company and customary fees and expenses for
independent certified public accountants retained by the Company
(including the expenses of any (A) opinion letters or costs
associated with delivery by counsel to the Company of an opinion
letter or opinion letters or (B) comfort letters or costs
associated with the delivery by independent certified public
accountants of a comfort letter or comfort letters, in each case
required by or requested pursuant to Section 2.1(h) hereof), and
(vii) the fees and expenses of any special experts retained by
the Company in connection with such registration. The Company
shall have no obligation to pay any underwriting fees, discounts
or commissions, or any transfer taxes attributable to the sale of
Registrable Securities, or the cost of any special audit required
by the Purchaser, such costs to be borne by the Purchaser.
ARTICLE III
PAYMENTS BY THE COMPANY
SECTION 3.1 Payments by the Company. In the event the
Registration Statement is not filed by the Filing Deadline or
declared effective by the Effectiveness Deadline (or after the
Registration Statement has been declared effective by the
Commission, sales of all the Registrable Securities (including
any Registrable Securities required to be registered pursuant to
Section 2.1(b) hereof) cannot be made pursuant to the
Registration Statement (by reason of a stop order, the Company's
failure to update the Registration Statement, the need to file
and have declared effective a post-effective amendment or any
other reason outside the control of the Purchaser), then the
Company will make payments to the Purchaser in such amounts and
at such times as shall be determined pursuant to this Section 3.1
as partial relief for the damages to the Purchaser by reason of
any such delay in or reduction of its ability to resell the
Registrable Securities (which remedy shall not be exclusive of
any other remedies available at law or in equity). The Company
shall pay the Purchaser an amount equal to (i) $19,500 times (ii)
the sum of: (A) the number of months (prorated per day for
partial months) following the Filing Deadline that the
Registration Statement is not filed pursuant to Section 2.1(a) or
following the Effectiveness Deadline that the Registration
Statement is not declared effective by the Commission, as the
case may be, plus (B) the number of months (prorated per day for
partial months) following the Effectiveness Deadline that sales
cannot be made pursuant to the Registration Statement after the
Registration Statement has been declared effective for more than
10 days in any 365-day period. Such amounts shall be paid in
cash.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
SECTION 4.1 Indemnification by the Company. The Company
agrees to indemnify and hold harmless the Purchaser, its
partners, Affiliates, officers, directors, employees and duly
authorized agents, and each Person or entity, if any, who
controls the Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, together with
the partners, Affiliates, officers, directors, employees and duly
authorized agents of such controlling Person or entity
(collectively, the "Controlling Persons"), from and against any
loss, claim, damage, liability, reasonable attorneys' fees, costs
or expenses and costs and expenses of investigating and defending
any such claim (collectively, "Damages"), joint or several, and
any action in respect thereof to which the Purchaser, its
partners, Affiliates, officers, directors, employees and duly
authorized agents, and any such Controlling Person may become
subject under the Securities Act or otherwise, insofar as such
Damages (or proceedings in respect thereof) arise out of, or are
based upon, any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or
prospectus relating to the Registrable Securities or any
preliminary prospectus, or arises out of, or are based upon, any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein (in the case of any prospectus or preliminary prospectus,
in light of the circumstances in which they were made) not
misleading, except insofar as the same are based upon information
furnished in writing to the Company by the Purchaser or an
Underwriter expressly for use therein, and shall reimburse the
Purchaser, its partners, Affiliates, officers, directors,
employees and duly authorized agents, and each such Controlling
Person for any reasonable legal and other expenses reasonably
incurred by the Purchaser, its partners, Affiliates, officers,
directors, employees and duly authorized agents, or any such
Controlling Person in investigating or defending or preparing to
defend against any such Damages or proceedings as such expenses
are incurred; provided, however, that the Company shall not be
liable to the Purchaser to the extent that any such Damages arise
out of or are based upon an untrue statement or omission made in
any preliminary prospectus if (i) the Purchaser failed to send or
deliver a copy of the final prospectus with or prior to the
delivery of written confirmation of the sale by the Purchaser to
the Person asserting the claim from which such Damages arise and
(ii) the final prospectus would have corrected such untrue
statement or alleged untrue statement or such omission or alleged
omission; provided further, however, that the Company shall not
be liable in any such case to the extent that any such Damages
arise out of or are based upon an untrue statement or alleged
untrue statement or omission or alleged omission in any
prospectus if (x) such untrue statement or omission or alleged
omission is corrected in an amendment or supplement to such
prospectus and (y) having previously been furnished by or on
behalf of the Company with copies of such prospectus as so
amended or supplemented, the Purchaser thereafter fails to
deliver such prospectus as so amended or supplemented prior to or
concurrently with the sale of a Registrable Security to the
Person asserting the claim from which such Damages arise. The
Company also agrees to indemnify any Underwriters of the
Registrable Securities, their officers and directors and each
Person or entity who controls such Underwriters on customary
terms.
SECTION 4.2 Indemnification by the Purchaser. The Purchaser,
agrees to indemnify and hold harmless the Company, its partners,
Affiliates, officers, directors, employees and duly authorized
agents and each Person or entity, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, together with the partners,
Affiliates, officers, directors, employees and duly authorized
agents of such controlling Person, to the same extent as the
foregoing indemnity from the Company to the Purchaser, but only
with reference to information related to the Purchaser or its
plan of distribution furnished in writing by the Purchaser or on
its behalf expressly for use in any registration statement or
prospectus relating to the Registrable Securities, or any
amendment or supplement thereto, or any preliminary prospectus;
provided that the maximum amount for which any Purchaser shall be
liable under this indemnity shall not exceed the net proceeds
received by such Purchaser from the sale of the Registrable
Securities, pursuant to the registration statement in question,
less any amounts previously paid by the Purchaser to purchase
Registrable Securities. In case any action or proceeding shall
be brought against the Company or its partners, Affiliates,
officers, directors, employees or duly authorized agents or any
such controlling Person or its partners, Affiliates, officers,
directors, employees or duly authorized agents, in respect of
which indemnity may be sought against the Purchaser, the
Purchaser shall have the rights and duties given to the Company,
and the Company or its partners, Affiliates, officers, directors,
employees or duly authorized agents, or such controlling Person,
or its partners, Affiliates, officers, directors, employees or
duly authorized agents, shall have the comparable rights and
duties given to the Purchaser by Section 4.1. The Purchaser also
agrees to indemnify and hold harmless any Underwriters of the
Registrable Securities with reference to the same information as
to which the Purchaser agrees to indemnify the Company referenced
above, their officers and directors and each Person who controls
such Underwriters on customary terms. The Company shall be
entitled to receive indemnities on customary terms from
Underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the
distribution, to the same extent as provided above, with respect
to information so furnished in writing by such persons
specifically for inclusion in any prospectus or the Registration
Statement.
SECTION 4.3 Conduct of Indemnification Proceedings.
Promptly after receipt by any person or entity in respect of which
indemnity may be sought pursuant to Section 4.1 or 4.2 (an
"Indemnified Party") of notice of any claim or the commencement
of any action, the Indemnified Party shall, if a claim in respect
thereof is to be made against the Person against whom such
indemnity may be sought (an "Indemnifying Party"), notify the
Indemnifying Party in writing of the claim or the commencement of
such action; in the event an Indemnified Party shall fail to give
such notice as provided in this Section 4.3 and the Indemnifying
Party to whom notice was not given was unaware of the proceeding
to which such notice would have related and was materially
prejudiced by the failure to give such notice, the
indemnification provided for in Section 4.1 or 4.2 shall be
reduced to the extent of any actual prejudice resulting from such
failure to so notify the Indemnifying Party; provided, that the
failure to notify the Indemnifying Party shall not relieve it
from any liability that it may have to an Indemnified Party
otherwise than under Section 4.1 or 4.2. If any such claim or
action shall be brought against an Indemnified Party, the
Indemnifying Party shall be entitled to participate therein, and,
to the extent that it wishes, jointly with any other similarly
notified Indemnifying Party, to assume the defense thereof with
counsel reasonably satisfactory to the Indemnified Party. After
notice from the Indemnifying Party to the Indemnified Party of
its election to assume the defense of such claim or action, the
Indemnifying Party shall not be liable to the Indemnified Party
for any legal or other expenses subsequently incurred by the
Indemnified Party in connection with the defense thereof other
than reasonable costs of investigation; provided that the
Indemnified Party shall have the right to employ separate counsel
to represent the Indemnified Party and its controlling persons
who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Indemnified Party
against the Indemnifying Party, but the fees and expenses of such
counsel shall be for the account of such Indemnified Party unless
(i) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the retention of such counsel or (ii) in the
reasonable judgment of the Company and such Indemnified Party,
representation of both parties by the same counsel would be
inappropriate due to actual or potential conflicts of interest
between them, it being understood, however, that the Indemnifying
Party shall not, in connection with any one such claim or action
or separate but substantially similar or related claims or
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses
of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all Indemnified
Parties or for fees and expenses that are not reasonable. No
Indemnifying Party shall, without the prior written consent of
the Indemnified Party, effect any settlement of any claim or
pending or threatened proceeding in respect of which the
Indemnified Party is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Party unless
such settlement includes an unconditional release of such
Indemnified Party from all liability arising out of such claim or
proceeding. Whether or not the defense of any claim or action is
assumed by an Indemnifying Party, such Indemnifying Party will
not be subject to any liability for any settlement made without
its consent, which consent will not be unreasonably withheld.
SECTION 4.4 Contribution. If the indemnification provided
for in this Article IV is unavailable to the Indemnified Parties in
respect of any Damages referred to herein, then each Indemnifying
Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified
Party as a result of such Damages (i) as between the Company and
the Purchaser, on the one hand, and the Underwriters, on the
other hand, in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Purchaser, on
the one hand, and the Underwriters, on the other hand, from the
offering of the Registrable Securities, or if such allocation is
not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also
the relative fault of the Company and the Purchaser, on the one
hand, and of the Underwriters, on the other hand, in connection
with the statements or omissions that resulted in such Damages,
as well as any other relevant equitable considerations, and (ii)
as between the Company, on the one hand, and the Purchaser, on
the other hand, in such proportion as is appropriate to reflect
the relative fault of the Company and of the Purchaser in
connection with such statements or omissions, as well as any
other relevant equitable considerations. The relative benefits
received by the Company and the Purchaser, on the one hand, and
the Underwriters, on the other hand, shall be deemed to be in the
same proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting
expenses) received by the Company and the Purchaser bear to the
total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover
page of the prospectus. The relative fault of the Company and
the Purchaser, on the one hand, and of the Underwriters, on the
other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company and
the Purchaser or by the Underwriters. The relative fault of the
Company, on the one hand, and of the Purchaser, on the other
hand, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact
relates to information supplied by such party, and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Purchaser agree that it would not be
just and equitable if contribution pursuant to this Section 4.4
were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as
a result of the Damages referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 4.4, no Underwriter shall be required
to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities underwritten by
it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and the
Purchaser shall in no event be required to contribute any amount
in excess of the amount by which the total price at which the
Registrable Securities of the Purchaser were offered to the
public (less underwriting discounts and commissions) less the
amount paid by the Purchaser to the Company for the Common
Shares, the Warrants and the Warrant Shares exceeds the amount of
any damages that the Purchaser has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission
or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Term. The registration rights provided to the
holders of Registrable Securities hereunder shall terminate on
such date as there shall be no Registrable Securities; provided,
however, that the provisions of Article IV hereof shall survive
any termination of this Agreement.
SECTION 5.2 Rule 144. The Company covenants that it will
file all reports required to be filed by it under the Securities Act
and the Exchange Act and that it will take such further action as
registered holders of Registrable Securities may reasonably
request, all to the extent required from time to time to enable
the Purchaser to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144, as such Rule may be amended from time
to time, or (b) any similar rule or regulation hereafter adopted
by the Commission. If at any time the Company is not required to
file such reports, it will, upon the reasonable request of any
registered holder of Registrable Securities, make publicly
available other information so long as necessary to permit sales
pursuant to Rule 144, within the limitations of the exemption
provided thereby. Upon the request of such Purchaser, the
Company will deliver to such Purchaser a written statement as to
whether it has complied with such requirements.
SECTION 5.3 Restrictions or Sale by the Company and
Others. If, and to the extent, reasonably requested by the managing
Underwriter or Underwriters in the case of an underwritten public
offering, that includes Registrable Securities as contemplated by
Section 2.1, the Company shall use commercially reasonable
efforts to cause its Affiliates to agree not to effect any public
sale or distribution of any securities similar to those being
registered in accordance with Section 2.1 hereof, or any
securities convertible into or exchangeable or exercisable for
such securities during the thirty (30) days prior to, and during
the period beginning on the effective date of the Registation
Statement (except as part of the Registration Statement) until
all of the Registrable Securities offered thereunder have been
sold pursuant to such underwritten public offering, provided,
however, that such period shall not exceed one hundred and eighty
(180) days following the effective date of the Registration
Statement.
SECTION 5.4 Amendment and Modification. Any provision of
this Agreement may be waived, provided that such waiver is set forth
in a writing executed by the party against whom the enforcement
of such waiver is sought. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, unless the Company
has obtained the written consent of the Purchaser. No course of
dealing between or among any Persons having any interest in this
Agreement will be deemed effective to modify, amend or discharge
any part of this Agreement or any rights or obligations of any
Person under or by reason of this Agreement.
SECTION 5.5 Successors and Assigns; Entire Agreement.
This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that the
benefits and right contemplated hereunder to be provided to any
holder of the Common Shares, the Warrants, the Warrant Shares or
the Registrable Securities shall be limited to the registered
holder thereof. This Agreement and the rights, duties and
obligations hereunder may not be assigned or delegated by the
Company or the Purchaser without the prior written consent of the
other parties hereto, which shall not be unreasonably withheld.
Notwithstanding the foregoing, no consent shall be required for
the Purchaser to assign its interest to any of its Affiliates.
This Agreement, together with the Securities Purchase Agreement
and the Warrants sets forth the entire agreement and
understanding between the parties as to the subject matter hereof
and thereof and merges and supersedes all prior discussions,
agreements and understandings (written or oral) of any and every
nature between them with respect to such subject matter.
SECTION 5.6 Separability. In the event that any provision
of this Agreement or the application of any provision hereof is
declared to be illegal, invalid or otherwise unenforceable by a
court of competent jurisdiction, the remainder of this Agreement
shall not be affected except to the extent necessary to delete
such illegal, invalid or unenforceable provision unless that
provision held invalid shall substantially impair the benefits of
the remaining portions of this Agreement.
SECTION 5.7 Notices. All notices, demands, requests,
consents, approvals or other communications required or permitted
to be given hereunder or that are given with respect to this
Agreement shall be in writing and shall be personally served or
deposited in the mail, registered or certified, return receipt
requested, postage prepaid, or delivered by reputable air courier
service with charges prepaid, or transmitted by hand delivery,
telegram, telex or facsimile, addressed as set forth below, or to
such other address as such party shall have specified most
recently by written notice: (i) if to the Company, to: Hollywood
Media Corp., 0000 Xxxxxx Xx., Xxx. 000X, Xxxx Xxxxx, Xxxxxxx
00000, Attention: Xxxxxxxx Xxxxxxxxxx, Chairman and CEO,
Facsimile No.: (000) 000-0000, with copies (which shall not
constitute notice) to: Hollywood Media Corp., 0000 Xxxxxx Xx.,
Xxx. 000X, Xxxx Xxxxx, Xxxxxxx 00000, Attention: W. Xxxxxx
Xxxxxxx, Facsimile No.; (000) 000-0000 and (ii) if to the
Purchaser at the addresses for notices set forth in Annex A to
the Securities Purchase Agreement. Notice shall be deemed given
on the date of service or transmission if personally served or
transmitted by telegram, telex or facsimile. Notice otherwise
sent as provided herein shall be deemed given on the third
business day following the date mailed or on the next business
day following delivery of such notice by a reputable air courier
service.
SECTION 5.8 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, INTERPRETED UNDER, AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
SECTION 5.9 Headings. The headings in this Agreement are
for convenience of reference only and shall not constitute a part of
this Agreement, nor shall they affect their meaning, construction
or effect.
SECTION 5.10 Counterparts. This Agreement may be executed
in counterparts, each of which shall be deemed to be an original
instrument, and all of which together shall constitute one and
the same instrument.
SECTION 5.11 Further Assurances. Each party shall cooperate
and take such action as may be reasonably requested by the other
party in order to carry out the provisions and purposes of this
Agreement and the transactions contemplated hereby.
SECTION 5.12 Remedies. In the event of a breach or a
threatened breach by any party to this Agreement of its
obligations under this Agreement, any party injured or to be
injured by such breach will be entitled to specific performance
of its rights under this Agreement or to injunctive relief, in
addition to being entitled to exercise all rights provided in
this Agreement and granted by law. The parties agree that the
provisions of this Agreement shall be specifically enforceable,
it being agreed by the parties that the remedy at law, including
monetary damages, for breach of any such provision will be
inadequate compensation for any loss and that any defense or
objection in any action for specific performance or injunctive
relief that a remedy at law would be adequate is waived.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by the undersigned, thereunto duly
authorized, as of the date first set forth above.
HOLLYWOOD MEDIA CORP.
By: /s/ Xxxxxxxx Xxxxxxxxxx
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Name: Xxxxxxxx Xxxxxxxxxx
Title: CEO
VIACOM INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name:
Title:
