Exhibit 10.12
AMENDMENT AGREEMENT
FOR
EMPLOYMENT AGREEMENT
BETWEEN
HOLLYWOOD MEDIA CORP. AND
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AMENDMENT AGREEMENT (the "Agreement") dated November 15, 2004 and
effective as of May 31, 2004 by and between HOLLYWOOD MEDIA CORP., a Florida
corporation (the "Company") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Executive").
WITNESSETH:
WHEREAS, the Executive has served as President of the Company since its
inception, and presently serves in this capacity pursuant to a written
Employment Agreement with the Company entered into as of July 1, 1993, as
amended by that certain Extension and Amendment Agreement entered into as of
July 1, 1998 between the Company and the Executive, by that certain Extension
and Amendment Agreement entered into as of July 1, 2003 (the "2003 Amendment")
between the Company and the Executive, and by that certain Extension and
Amendment Agreement entered into as of May 31, 2004 (the "2004 Amendment")
between the Company and the Executive (collectively, the "Current Employment
Agreement");
WHEREAS, the parties desire to enter into this Agreement to clarify
certain matters regarding the vesting of the shares of restricted stock (the
"Shares") granted to the Executive under Section 2 of the 2004 Amendment.
WHEREAS, Section 2 of the 2004 Amendment currently provides, with
respect to vesting of the Shares, that the Shares will vest over a period of
four years at the rate of 6.25 percent per calendar quarter commencing with the
first vesting on October 1, 2004, and the 2004 Amendment further states that "in
the event that a "Change of Control" (as defined in the Current Employment
Agreement, as amended) of the Company occurs prior to the end of such four-year
period, or in the event that the Executive's employment ends at any time prior
to the end of such four-year period other than for "Cause" (as defined in the
Current Employment Agreement), said grant shall vest in full immediately."
WHEREAS, with respect to vesting the parties desire to clarify (i) the
events upon which Shares will vest, and (ii) the parties' respective rights and
obligations with respect to any portion of the Shares that is not vested
("Unvested Shares").
NOW, THEREFORE, the parties, intending to be legally bound, agree as
follows, and the Current Employment Agreement is hereby amended as follows, NUNC
PRO TUNC, as if these terms were included in the 2004 Amendment:
Unless otherwise expressly defined herein, all capitalized terms used
herein shall have the meanings set forth in the Current Employment Agreement.
1. Limitation on Vesting in the Event of Termination by Executive unless
With Good Reason.
Notwithstanding anything to the contrary in Section 2 of the 2004
Amendment, in the event that the Executive's employment is voluntarily
terminated by the Executive (and is not actually or constructively terminated by
the Company) then the Executive's Unvested Shares at the time of such
termination shall not vest by reason of such termination unless the Executive
resigns from employment within 60 days after the
occurrence of "Good Reason" (as defined below), in which case all of the
Unvested Shares shall become vested in full upon such resignation.
Good Reason.
For all purposes under this Agreement, "Good Reason" for resignation
will exist upon the occurrence of any of the following: (i) any reduction in the
Executive's Base Salary; (ii) any change made by the Company in the Executive's
title or position with the Company such that she ceases to be the President of
Hollywood Media Corp. (the parent company) or that materially reduces her
authority from that which she currently holds as President of the Company; or
(iii) any other breach by the Company of its obligations under the Current
Employment Agreement, as amended, that is not corrected within thirty (30) days
following the Executive's written notice thereof to the Company.
2. Restrictions on Unvested Shares; Forfeit of Unvested Shares.
(a) The Unvested Shares may not be sold, pledged or otherwise
transferred until vested (it being agreed that any vested portion of the Shares
is not subject to any restrictions in this Agreement).
(b) Upon any termination of the Executive's employment with the
Company, the Unvested Shares which are not vested as of the time of termination
(excluding any Unvested Shares that vest as a result of the termination), shall
be forfeited by the Executive, and the Executive shall transfer (and in any
event shall be deemed to have transferred) all such forfeited shares back to the
Company and such shares shall thereupon be cancelled and void and cease to be
outstanding for all purposes.
3. Legend.
All certificates representing any Unvested Shares subject to the
provisions of this Agreement shall have endorsed thereon the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A VESTING SCHEDULE
SET FORTH IN THAT CERTAIN EXTENSION AND AMENDMENT AGREEMENT DATED AS OF MAY 31,
2004, AS AMENDED, BETWEEN THE COMPANY AND THE HOLDER, AND NO PORTION OF THE
SHARES REPRESENTED BY THIS CERTIFICATE MAY BE SOLD, ASSIGNED OR OTHERWISE
TRANSFERRED PRIOR TO VESTING AS PROVIDED IN SUCH AGREEMENT.
4. Changes in Stock.
In the event that as a result of any stock dividend, stock split or
other change in the Company's Common Stock, or any merger or sale of all or
substantially all of the assets of other acquisition of the Company, the
Executive shall in her capacity as owner of Unvested Shares (the "Prior Shares")
be entitled to new or additional or different shares or securities, such new or
additional or different shares or securities shall thereupon be considered to be
Unvested Shares and shall be subject to all of the conditions and restrictions
which were applicable to the Prior Shares pursuant to this Agreement.
5. Miscellaneous.
(a) The Company shall not be required (i) to transfer on its books any
shares of stock of the Company which have been (or purported to be) sold or
transferred in violation of this Agreement, or (ii) to treat as owner of such
shares any transferee (or purported transferee) of shares transferred (or
purported to be transferred) in violation of this Agreement.
(b) Except with respect to any shares that are forfeited as provided
above, as to which forfeited Shares the Executive shall have no rights, the
parties acknowledge and agree that neither this Agreement nor the 2004 Amendment
limit or restrict the Executive's rights of a shareholder with respect to any of
the Shares (except for the restrictions on transfer of Unvested Shares provided
herein and under the 2004 Amendment) including the Executive's right to vote the
Shares and to receive any dividends paid to or made with respect to the Shares.
(c) The parties agree to execute such further instruments and to take
such action as may reasonably be necessary to carry out the purposes and intent
of this Agreement.
6. Reaffirmation of Employment Agreement.
No provision of this Agreement shall be deemed to enlarge the terms or
provisions of the Current Employment Agreement or the rights of the Executive
thereunder. Except as expressly provided in this Agreement, all other
provisions, terms and benefits set forth in the Current Employment Agreement
shall remain in full force and effect.
7. Counterparts.
This Agreement may be executed in counterparts, each of which, when
executed, shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
8. The changes made by this amendment to the Current Employment
Agreement should be given effect from and after May 31, 2004, NUNC PRO TUNC, as
if these terms were included in the 2004 Amendment.
IN WITNESS WHEREOF, the parties hereto have or have caused their
respective duly authorized representatives to execute this Agreement as of the
date first written above.
COMPANY:
HOLLYWOOD MEDIA CORP.,
a Florida corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President of Finance
and Accounting
EXECUTIVE:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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