Exhibit 10.1
EXECUTION COPY
EXCHANGE AGREEMENT
EXCHANGE AGREEMENT dated as of August 28, 2002, among
Hollywood Media Corp., Inc., a Florida corporation ("HOLLYWOOD MEDIA"),
Broadway.com, Inc., a Delaware corporation ("BROADWAY.COM"), hollywood.com,
Inc., a California corporation ("HOLLYWOOD CALIFORNIA" and, together with
Hollywood Media and Broadway.com, the "COMPANY") and Viacom Inc., a Delaware
corporation (as successor to CBS Corporation, "VIACOM").
WHEREAS, Viacom (a) owns (i) 8,614,687 shares (the "VIACOM
OWNED COMMON STOCK") of Common Stock of the Company, par value $0.01 (the
"COMMON STOCK"), (ii) a Warrant issued by the Company on September 18, 2000, for
the purchase of up to 100,000 shares of Common Stock upon exercise, (iii) a
Warrant (Certificate No. W-A-3) issued by the Company on May 1, 2001, for the
purchase of up to 162,973 shares of Common Stock upon exercise and (iv) a
Warrant (Certificate No. W-B-3) issued by the Company on May 1, 2001, for the
purchase of up to 439,251 shares of Common Stock upon exercise ((ii) through
(iv) collectively being the "WARRANTS") and (b) acquired the Viacom Owned Common
Stock and the Warrants directly from the Company;
WHEREAS, the Company and Viacom are parties to (i) the
Stock Purchase Agreement dated as of August 26, 1999, as amended, (ii) the
Content License Agreement dated as of January 3, 2000, as amended (the "CONTENT
LICENSE"), (iii) the Investor's Rights Agreement, dated January 3, 2000, as
amended, (iv) together with each of the other parties signatory thereto, the
Voting Agreement, dated January 3, 2000 (the "VOTING AGREEMENT"), (v) the
Securities Purchase Agreement, dated as of April 25, 2001, as amended, (vi) the
Registration Rights Agreement, dated as of May 1, 2001, (vii) the Advertising
and Promotion Agreement dated as of January 3, 2000, as amended (the
"ADVERTISING AGREEMENT") and (viii) the letter agreement dated May 1, 2001
(collectively, the "EXISTING AGREEMENTS");
WHEREAS, the Company's principal source of revenue has
become wholesale ticket sales and the business to business syndication of data
and is no longer the sale of advertising on its websites, and therefore the
consumer-oriented advertising and promotion that the Company receives from
Viacom is now less significant to the Company's strategic focus;
WHEREAS, Viacom wishes to reconvey to the Company, and the
Company wishes to accept from Viacom, the Viacom Owned Common Stock and the
Warrants, on the terms and conditions set forth herein;
WHEREAS, Viacom and the Company wish to terminate each of
the Existing Agreements and, as between them, the Voting Agreement, in each case
on the terms and conditions set forth herein; and
WHEREAS, Viacom will pay the Company $2,000,000 in
connection with the transactions contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants, representations, warranties and agreements herein contained,
the parties hereto agree as follows:
SECTION 1. TERMINATION. Effective as of the Closing, each
Existing Agreement (with respect to the Voting Agreement, solely as between the
Company and Viacom) is hereby terminated in full and shall be of no further
force or effect. Thereafter, neither the Company nor Viacom shall have any
further rights or obligations under such terminated Existing Agreements.
SECTION 2. CONVEYANCES. At the Closing, Viacom shall (i)
convey to the Company, and the Company shall accept from Viacom, all right,
title and interest in and to the Viacom Owned Common Stock and each Warrant and
(ii) make a payment to the Company in an amount equal to $2,000,000 (the
"Payment").
SECTION 3. CLOSING; CLOSING DELIVERIES. The transactions
contemplated by this Agreement shall be consummated at a closing (the "CLOSING")
to be held at the offices of Viacom, at 10:00 a.m. on the date of execution of
this Agreement, or as otherwise agreed by the parties hereto. At the Closing,
the parties shall make the following deliveries:
(a) Viacom shall deliver, or cause to be delivered to the
Company, (1) with respect to the Viacom Owned Common Stock represented by stock
certificates, certificates registered in the name of Viacom evidencing such
Viacom Owned Common Stock, together with an undated stock power for each
certificate endorsed to the Company, (2) with respect to the Viacom Owned Common
Stock held by book entry, appropriate evidence of the electronic conveyance of
such shares to the Company, (3) the Payment, in cash, by wire transfer in
immediately available funds to the account designated in Schedule I to this
Agreement, (4) each Warrant, together with evidence of the cancellation thereof,
and (5) a written resignation for each of Peter Glusker and Bryon Rubin from the
Board of Directors of the Company and any committees thereof.
(b) The Company shall deliver, or cause to be delivered, to
Viacom, (i) a receipt for the stock certificates referred to in Section
(3)(a)(1) above, the shares of Common Stock referred to in Section 3(a)(2) above
and the funds referred to in Section (3)(a)(3) above and (ii) resolutions
evidencing the approvals of the transactions contemplated by this Agreement
required to be obtained by the Company in order to permit the Company to make
the representations and warranties set forth in Section 8(b)(ii) of this
Agreement.
SECTION 4. RELEASE. Effective as of the Closing, each of
Viacom and the Company hereby releases and discharges, absolutely and forever,
any and all claims, causes of action, obligations, covenants, agreements,
representations, warranties, losses, damages, fees, expenses, judgments and
liabilities of each and every kind ("CLAIMS") such party has ever had, now has,
or may hereafter have against, directly or indirectly, the other party, or any
person or entity directly or indirectly controlling, controlled by, or under
common control with any such party (such person or entity being an "AFFILIATE")
or any or all of such party's or such Affiliates' past or present officers,
directors, agents, shareholders, employees, attorneys, representatives,
successors, heirs or assigns, arising out of or relating to any of the Existing
Agreements or the transactions contemplated by such agreements; provided that
such release and discharge does not include any Claims arising under this
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Agreement or the transactions contemplated hereby. Without limiting the
generality of the foregoing, each of Viacom and the Company gives such release
and discharge regardless of whether such Claims or the consequences thereof or
the facts on which they are based are known or unknown, anticipated or
unanticipated, absolute or contingent, and whether or not such Claims could have
been asserted at the time of the execution of this Agreement. Nothing in this
Agreement is intended or shall be deemed or construed as an admission of
liability by any party hereto and each party hereto expressly denies any and all
liability relating to any and all Claims released and discharged under this
Agreement. In light of the intention of the parties that the foregoing release
extend to any and all claims of whatsoever kind or character, known or unknown,
each of Viacom and the Company expressly waives any and all rights granted by
California Civil Code Section 1542 (or any other analogous federal or state law
or regulation). Section 1542 reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
SECTION 5. ADVERTISING AND PROMOTION. (a) Viacom shall
arrange for the placement of advertising and promotion of the Broadway Site (as
defined below) and Affiliated Properties (as defined below), having an aggregate
value of $5,000,000 ("POST-CLOSING ADVERTISING"), from the date of this
Agreement until December 31, 2003 or such additional period thereafter to the
extent Viacom is not able to air all of the Post-Closing Advertising prior to
December 31, 2003 (the "AIRING PERIOD"), in accordance with the Media Plan
attached hereto as Schedule II (the "MEDIA PLAN"), using the categories and
types of media set forth on Exhibit A to the Advertising Agreement. All
advertising and promotional materials shall be subject to the applicable CBS
Television Network Advertising Guidelines, Viacom's standards and practices and
Viacom's standard preemption policies, in each case as in effect from time to
time. Subject to Viacom's obligation to deliver the full amount of the
Post-Closing Advertising in accordance with this Section 5, Viacom shall not
have to make any particular ad placements if the exigencies of time or current
or future contractual obligations entered into prior to the date hereof prevent
or restrict Viacom from doing so. As used herein, "BROADWAY SITE" means the
Internet Web Site owned or controlled by Broadway.com (accessed via the URL
www.broadway.com) that features content related to live theater, and "AFFILIATED
PROPERTIES" means the Hollywood Site (as defined in the Advertising Agreement).
The Company shall not use more than twenty percent (20%) of the Post-Closing
Advertising in the aggregate to advertise and promote any Affiliated Properties.
(b) If the Company fails for any reason to order the full
$5,000,000 of Post-Closing Advertising for airing during the Airing Period, such
unordered Post-Closing Advertising shall be permanently forfeited. Upon the
earliest of the date on which such Post-Closing Advertising is aired in full and
any termination by Viacom pursuant to paragraph (g) below (the "FINAL TIME"),
Viacom's obligations under this Section 5 shall be terminated in full and
neither Viacom nor the Company shall have any further rights or obligations
under this Section 5.
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(c) The pricing to be applied to the airing of the
Post-Closing Advertising set forth in the Media Plan shall be generally
consistent with the pricing Viacom has applied with respect to advertising and
promotion aired for the Company up to and including the date of this Agreement,
which pricing methodology Viacom and the Company acknowledge is fair. The
Company acknowledges that (A) Viacom makes no audience guarantees, (B) there are
no make-goods, and (C) no party hereto has any audit rights except solely to
confirm whether the Post-Closing Advertising, or any portion thereof, has been
aired.
(d) Effective as of the Final Time, each of Viacom and the
Company hereby releases and discharges, absolutely and forever, any and all
Claims such party has ever had, now has, or may hereafter have against, directly
or indirectly, the other party, any Affiliate thereof or any person or entity or
any or all of such party's past or present Affiliates or any or all of such
party's or such Affiliates' past or present officers, directors, agents,
shareholders, employees, attorneys, representatives, successors, heirs or
assigns, arising out of or relating to this Section 5 or the transactions
contemplated by this Section 5, other than claims by the Company that the
pricing applied by Viacom to the airing of the Post-Closing Advertising is not
generally consistent with the pricing Viacom has applied with respect to
advertising and promotion aired for the Company up to and including the date of
this Agreement, provided that such claims shall also be released and discharged
in accordance with the terms of this paragraph (d) on the six month anniversary
of the Final Time, except any such claim which shall have been made to Viacom in
writing prior to such six month anniversary. Without limiting the generality of
the foregoing, each of Viacom and the Company gives such release and discharge
regardless of whether such Claims or the consequences thereof or the facts on
which they are based are known or unknown, anticipated or unanticipated,
absolute or contingent, and whether or not such Claims could have been asserted
at the time of the execution of this Agreement. Nothing in this Section 5 is
intended or shall be deemed or construed as an admission of liability by any
party hereto and each party hereto expressly denies any and all liability
relating to any and all Claims released and discharged under this Section 5. In
light of the intention of the parties that the foregoing release extend to any
and all claims of whatsoever kind or character, known or unknown, each of Viacom
and the Company expressly waives any and all rights granted by California Civil
Code Section 1542 (or any other analogous federal or state law or regulation).
Section 1542 reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
(e) Until the Final Time, Broadway.com covenants as
follows:
(i) Broadway.com shall produce, advertise and transmit the
Broadway Site (as defined in the Advertising Agreement) in accordance with all
applicable federal, state, local and foreign laws and regulations.
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(ii) At all times, Broadway.com shall maintain the Broadway
Site in a professional manner consistent with applicable industry standards. In
connection therewith, Broadway.com shall satisfy the following minimum
performance standards: (A) use its best efforts to maintain continuous
accessibility to the public on the Internet; (B) capability of sustaining
traffic of no less than 22 million page views per month, including, without
limitation, the existence of a viable technological response, in the event that
the foregoing traffic number is exceeded, that is designed to handle at least 44
million page views per month; (C) monitoring of the Broadway Site's traffic
flows on a regular basis and (in addition to and above and beyond clause (B)
above) implementation of plans to meet expected traffic flows and (D)
maintenance of standards of quality and ease of use no less than the quality and
ease of use of the Broadway Site as of this date.
(iii) Advertising or promotional material or any portion
thereof furnished by the Company to Viacom for use pursuant to this Section 5
shall not violate any law or violate the rights of any person or entity.
(f) Viacom shall have the right to suspend and/or withdraw
placement of all advertising and promotion under this Section 5:
(i) During such time as Broadway.com is enjoined from using
the tradename, trademark or terms(s) "Broadway.com" on or in connection with the
Broadway Site and has not renamed the site. Broadway.com shall rename the
Broadway Site within twenty (20) days following the issuance of any injunction
or the resolution of any claim which requires Broadway.com to cease using the
tradename, trademark or term(s) "Broadway.com" on or in connection with its
Website.
(ii) In the event that the Broadway Site is not operational
for a period of seventy-two (72) consecutive hours until it becomes operational
in a manner consistent with the standards in the industry.
Viacom may exercise its right to suspend and/or withdraw placement of all
advertising and promotion pursuant to this paragraph (f) by sending the
appropriate notice to the Company. Viacom's rights to suspend and/or withdraw
placement of all advertising and promotion shall be Viacom's sole remedy for any
breach by the Company of the covenants in this paragraph (f).
(g) Viacom shall have a right to terminate this Section 5
prior to the Final Time if any of the following occur:
(i) The Broadway Site contains Content (as defined in the
Advertising Agreement) which, in Viacom's reasonable business judgment, violates
Article I or Article III of the CBS License Guidelines (as set forth in the
Content License) and Broadway.com fails to remove such Content from the Broadway
Site within ten (10) days after receipt of written notice of Viacom's objection
thereto demanding the removal of such Content; provided, however, that
Broadway.com shall in any event be permitted to (A) display advertising and
related content on the Broadway Site promoting beer, wine and hard liquor and
(B) link from the Broadway Site to other websites promoting beer, wine and hard
liquor.
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(ii) Except as otherwise set forth in subparagraph (i)
above, the Company breaches any material term or condition of Section 5 and
fails to: (1) cure such breach within thirty (30) days after Viacom's notice of
such breach, or (2) complete curing such breach within sixty (60) days following
Viacom's notice of such breach; provided however that this clause (2) shall only
apply to a default that is incapable of being cured in thirty (30) days. The
foregoing cure period will not apply: (1) solely with respect to this Agreement,
to a term or condition (in this Agreement) for which a specific cure period is
provided, or (2) to a breach incapable of being cured.
(iii) Hollywood Media or Broadway.com: (1) is the subject
of a voluntary petition in bankruptcy or any voluntary proceeding relating to
insolvency, receivership, liquidation, or composition for the benefit of
creditors, if such petition or proceeding is not dismissed or stayed within
sixty (60) days of filing; (2) becomes the subject of any involuntary petition
in bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors, if such
petition or proceeding is not dismissed or stayed within sixty (60) days of
filing; or (3) is liquidated or dissolved.
(iv) The Broadway Site ceases to operate due to any
circumstance(s) (other than circumstances beyond Broadway.com's reasonable
control, which circumstances simultaneously affect a substantial number of web
sites on the Internet) for (1) a period of thirty (30) consecutive days or (2) a
period of one week at least two times in any six (6) month period.
Viacom may exercise its right to terminate pursuant to this paragraph (g) by
sending the appropriate notice to the Company. Viacom's right to terminate this
Section 5 shall be Viacom's sole remedy for any breach by the Company of the
covenants in this paragraph (g).
(h) Hollywood Media covenants and agrees that from and
after such time as the Post-Closing Advertising is used to promote any
Affiliated Properties, such Affiliated Properties shall comply with and be
subject to Sections 5(e), (f) and (g).
SECTION 6. FURTHER ASSURANCES. (a) Subject to the terms and
conditions of this Agreement, the Company and Viacom will use their commercially
reasonable efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations or otherwise to consummate the transactions contemplated by
this Agreement, and execute and deliver such documents and other papers as may
be required to carry out the provisions of this Agreement and consummate and
make effective the transactions contemplated hereby.
(b) As of the date hereof, the Company shall cease using
any CBS Content (as defined in the Content License) licensed by the Company
under the Content License or Content derived therefrom. In that connection, the
Company shall immediately remove or erase any CBS Content from the Hollywood
Site (as defined in the Content License) and the Broadway Site and, at Viacom's
request, the Company shall furnish Viacom with certified evidence of such
removal or erasure satisfactory to Viacom.
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SECTION 7. PUBLIC ANNOUNCEMENTS. Neither the Company nor
Viacom will issue any press release or make any public statement with respect to
this Agreement or the transactions contemplated hereby without the prior consent
of the other party hereto, except as may be required by applicable law or any
national stock exchange or market regulations. Any filing made by the Company
with the United States Securities and Exchange Commission relating to the
transactions contemplated by this Agreement, including without limitation any
filing on Form 8-K, shall be subject to prior review by Viacom, and the Company
shall make any reasonable modifications thereto requested by Viacom.
Notwithstanding the foregoing, the Company and Viacom may make public statements
with respect to this Agreement and the transactions contemplated hereby,
including statements in filings with the Securities and Exchange Commission,
that are consistent with prior public statements made pursuant to this Section
7, except in the case of any such prior public statement to which the Company or
Viacom shall have subsequently objected in writing to the other party.
SECTION 8. REPRESENTATIONS AND WARRANTIES. Each party
(except where only a specific party is identified) hereto represents and
warrants to the other parties hereto as of the date hereof as follows:
(a) Organization and Qualification. Such party is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has all corporate powers and
all governmental licenses, authorizations, permits, consents and approvals
required to carry on its business as now conducted, except for those licenses,
authorizations, permits, consents and approvals the absence of which would not
have, individually or in the aggregate, a material adverse effect on such party.
(b) Authorization. (i) The execution, delivery and
performance by such party of this Agreement, and the consummation by such party
of the transactions contemplated hereby, are within such party's corporate
powers and have been duly authorized by all necessary corporate action on the
part of such party. This Agreement has been duly executed and delivered by such
party and this Agreement constitutes a valid and binding agreement of such
party, enforceable against such party in accordance with its terms.
(ii) Hollywood Media represents and warrants that its Board
of Directors, excluding any Viacom-appointed director, has determined that the
transactions contemplated hereby are fair to and in the best interests of the
stockholders of Hollywood Media and that a majority of the disinterested
directors (as defined in Section 607.0901 of the Florida Statutes applicable to
Business Organizations) sitting on Hollywood Media's Board of Directors have
approved this Agreement and the transactions contemplated hereby.
(c) No Conflicts. (i) The execution, delivery and
performance by such party of this Agreement, and the consummation by such party
of the transactions contemplated hereby, require no action by or in respect of,
or filing with, any governmental body, agency, official or authority, domestic,
foreign or supranational, other than (1) compliance with any applicable
requirements of the NASDAQ National Market System, the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, as amended, and any other
applicable securities laws, whether state or foreign and (2) any actions or
filings the absence of which would not have, individually or in the aggregate, a
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material adverse effect on such party's ability to perform its obligations under
this Agreement.
(ii) The execution, delivery and performance by such party
of this Agreement, and the consummation of the transactions contemplated hereby,
do not (1) contravene, conflict with, or result in any violation or breach of
any provision of the certificate of incorporation or bylaws of such party, (2)
assuming compliance with the matters referred to in Section 8(c)(i), contravene,
conflict with or result in a violation or breach of any provision of any
applicable law, statute, ordinance, rule, regulation, judgment, injunction,
order, or decree applicable to such party or any of its subsidiaries, (3)
require any consent or other action by any person or entity under, constitute a
default, or an event that, with or without notice or lapse of time or both,
would constitute a default, under, or cause or permit the termination,
cancellation, acceleration or other change of any right or obligation or the
loss of any benefit to which such party or any of its subsidiaries is entitled
under any provision of any agreement or other instrument binding upon such party
or any of its subsidiaries or any of their assets or any license, franchise,
permit, certificate, approval or other similar authorization affecting, or
relating in any way to, the assets or business of such party and its
subsidiaries or (4) result in the creation or imposition of any lien or
encumbrance on any asset of such party or any of its subsidiaries, except for
such contraventions, conflicts and violations referred to in clause (2) and for
such failures to obtain any such consent or other action, defaults,
terminations, cancellations, accelerations, changes, losses, liens or
encumbrances referred to in clauses (3) and (4) that would not have,
individually or in the aggregate, a material adverse effect on such party's
ability to perform its obligations under this Agreement.
(d) Solvency. The Company represents and warrants that it
is Solvent as of the Closing, both before and after giving effect to the
transactions contemplated by this Agreement. The Company further represents and
warrants that it has received reasonably equivalent value and fair consideration
in exchange for the consideration provided to it by Viacom pursuant to this
Agreement. "SOLVENT" means, with respect to the Company on a particular date,
that on such date (i) the fair value of the property of the Company is greater
than the total amount of liabilities, including, without limitation, contingent
liabilities, of the Company and (ii) the present fair salable value of the
assets of the Company is not less than the amount that will be required to pay
the probable liability of the Company on its debts as they become absolute and
matured. The amount of contingent liabilities at any time shall be computed as
the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
(e) Ownership of Equity. Viacom represents and warrants
that it is the record, legal and beneficial owner of the Viacom Owned Common
Stock and the Warrants, free and clear of any and all liens, charges,
encumbrances, options and adverse claims or rights whatsoever. Viacom further
represents and warrants that the Viacom Owned Common Stock constitutes all of
the outstanding capital stock of the Company beneficially owned by Viacom or its
Affiliates.
SECTION 9. MISCELLANEOUS. (a) Notices. All notices,
requests and other communications to any party hereunder shall be in writing
(including facsimile transmission) and shall be given,
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if to the Company, to:
Hollywood Media Corp.
2255 Glades Road, Suite 237W
Boca Raton, Florida 33431-7383
Attention: Chief Executive Officer
Fax: 561-998-2974
and
Attention: General Counsel
Fax: 561-998-2974
if to Viacom, to:
Viacom Inc.
1515 Broadway
52nd Floor
New York, New York 10036
Attention: Chief Financial Officer
Fax: 212-846-1797
and
Attention: General Counsel
Fax: 212-258-6099
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 p.m., and such day is a
business day, in the place of receipt. Otherwise, any such notice, request or
communication shall be deemed not to have been received until the next
succeeding business day in the place of receipt.
(b) Survival of Representations and Warranties. The
representations and warranties and agreements contained herein shall survive the
Closing.
(c) Amendments; Waivers. Any provision of this Agreement
may be amended or waived prior to the Closing if, but only if, such amendment or
waiver is in writing and is signed, in the case of an amendment, by each party
to this Agreement or, in the case of a waiver, by each party against whom the
waiver is to be effective. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
(d) Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
(e) Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, provided that no party may assign,
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delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other party hereto. Except as expressly
provided in Sections 4, 5(d) and Section 9(h), no provision of this Agreement is
intended to confer any rights, benefits, remedies, obligations or liabilities
hereunder upon any person or entity other than the parties hereto and their
respective successors and assigns.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(g) Jurisdiction. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby shall be brought in
the federal court or state court located in the county of New York in the State
of New York, and each of the parties hereby consents to the exclusive
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient form. Process in any such suit, action or proceeding
may be served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 9(a) shall
be deemed effective service of process on such party.
(h) WAIVER OF JURY TRIAL; DAMAGES LIMITATION. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. NO PARTY TO THIS AGREEMENT OR ANY OF SUCH
PARTY'S AFFILIATES WILL BE LIABLE TO ANY OTHER PARTY TO THIS AGREEMENT OR SUCH
OTHER PARTY'S AFFILIATES FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE
DAMAGES IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(i) Counterparts; Effectiveness. This Agreement may be
signed, manually or by facsimile, in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement shall become effective when
each party hereto shall have received counterparts hereof signed by all of the
other parties hereto.
(j) Entire Agreement. This Agreement and the agreements
referred to herein constitute the entire agreement between the parties with
respect to the subject matter of this Agreement and supersede all prior
agreements and understandings, both oral and written, between the parties with
respect to the subject matter of this Agreement.
(k) Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
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(l) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon such
a determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner so that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
HOLLYWOOD MEDIA CORP.
By: /s/ Mitchell Rubenstein
------------------------------------------
Mitchell Rubenstein
Chairman and Chief Executive Officer
HOLLYWOOD.COM, INC.
By: /s/ Mitchell Rubenstein
------------------------------------------
Mitchell Rubenstein
Chief Executive Officer
BROADWAY.COM, INC.
By: /s/ Mitchell Rubenstein
------------------------------------------
Mitchell Rubenstein
President
VIACOM INC.
By: /s/ Richard J. Bressler
------------------------------------------
Name: Richard J. Bressler
Title: Senior Executive Vice President
and CFO
11