AMENDMENT TO PURCHASE AGREEMENT
EXHIBIT
10.1
This
AMENDMENT TO PURCHASE AGREEMENT (this “Amendment”) is made
and entered into as of September 30, 2009, by and between HOLLYWOOD MEDIA CORP.,
a Florida corporation (the “Company”), and
R&S INVESTMENTS, LLC, a Delaware limited liability company (“Purchaser”). The
Company and Purchaser are sometimes referred to in this Amendment individually
as a “Party”
and collectively as the “Parties.” Unless
otherwise expressly defined herein, all capitalized terms used herein shall have
the meanings set forth in the Purchase Agreement.
A. The
Parties executed a Purchase Agreement dated as of August 21, 2008 (the “Purchase Agreement”),
pursuant to which the Purchaser purchased from the Company the Company’s
subsidiaries Xxxxxxxxx.xxx, LLC, a Delaware limited liability company (“Xxxxxxxxx.xxx”) and
Totally Hollywood TV, LLC, a Delaware limited liability company (Xxxxxxxxx.xxx,
LLC and Totally Hollywood TV, LLC are collectively referred to as the “Companies”).
B. The
Parties desire to amend the Purchase Agreement as set forth in this Amendment
to, among other things, clarify the intention of the Parties that the gross
revenue of the Companies that is used to calculate the Earnout Payment for each
Measurement Period under the Purchase Agreement means the aggregate revenue of
the Companies for each Measurement Period as adjusted by increases or decreases,
as the case may be, in gross accounts receivable of the Companies during the
relevant Measurement Period, so that billed but uncollected amounts are not
included in the calculation of gross revenue until such amounts are
collected.
NOW,
THEREFORE, in consideration of the premises and mutual covenants set forth
herein, the Parties hereby agree as follows:
1. Amendment of Purchase
Agreement. (a) All references in the Purchase Agreement to the term
“Gross Revenue” is hereby replaced with the term “Adjusted Gross
Revenue.” The definition of the term “Gross Revenue” in Section
1.1(a) of the Purchase Agreement is hereby deleted in its entirety and replaced
with the following:
“Adjusted
Gross Revenue” shall mean the aggregate revenue of the Companies for the
relevant Measurement Period calculated in accordance with GAAP, adjusted as
follows: (i) with respect to the initial Measurement Period,
“Adjusted Gross Revenue” shall be decreased by the gross accounts receivable
balance on the last day of the initial Measurement Period and (ii) with respect
to all Measurement Periods following the initial Measurement Period, (A) if the
gross accounts receivable of the Companies on the last day of such Measurement
Period is less than the gross accounts receivable of the Companies on the last
day of the prior Measurement Period, then the amount of such decrease shall be
added to “Adjusted Gross Revenue” for such Measurement Period, and (B) if the
gross accounts receivable of the Companies on the last day of such Measurement
Period is greater than the gross accounts receivable of the Companies on the
last day of the prior Measurement Period, then the amount of such increase shall
be subtracted from “Adjusted Gross Revenue” for such Measurement
Period.
(b) In
order to allow sufficient time to determine the amount of the Earnout Payments,
the Purchaser shall have a thirty (30) day grace period on the due date for all
Earnout Payments.
2. Miscellaneous. Except
as otherwise specifically set forth in this Amendment, all provisions of the
Purchase Agreement that are not amended by this Amendment shall remain in full
force and effect. This Amendment and the Purchase Agreement
constitute collectively the entire agreement among the Parties with respect to
the subject matter of this Amendment and supersede all prior agreements and
understandings, both written and oral, among the Parties with respect to the
subject matter of this Amendment. This Amendment may be amended or
modified only by an instrument in writing duly executed by the
Parties. This Amendment is binding upon, inures to the benefit of and
is enforceable by the Parties and their respective successors and
assigns.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
Company:
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By:
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/s/ Xxxxxx X. Xxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxx
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Title:
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Chairman,
Special Committee of
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Directors,
on behalf of Special Committee,
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as
Authorized Representative of
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Purchaser:
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R&S
INVESTMENTS, LLC
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By:
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/s/ Xxxxxxxx Xxxxxxxxxx
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Name:
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Xxxxxxxx
Xxxxxxxxxx
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Title:
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Managing
Member
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