EXHIBIT 99.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT (“
Agreement ”) is made and entered into as of this 16
th day
of July, 2007, by and between Hollywood.com, Inc., a California
corporation (“ Company ”), and Mr. Kevin
Davis, a California resident (“ Employee
”).
RECITALS
| A. |
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Company is engaged in the business of operating
www.hollywood.com , an entertainment focused website; |
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| B. |
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Employee is experienced in, and knowledgeable concerning, one
or more aspects of the business of Company and is able to render
services to the Company which are of a special, unique,
extraordinary and intellectual character concerning the
Company’s business; and |
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| C. |
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Company and Employee mutually desire to agree upon the terms of
Employee’s future employment with Company and to certain
obligations of such employment. |
AGREEMENT
NOW, THEREFORE, in consideration of
the mutual covenants contained in this Agreement, the parties agree
as follows:
1. Term and Employment Period
. Company shall employ Employee, and Employee shall serve Company,
on the terms and conditions set forth herein, for the period
beginning on and as of August 1, 2007 (the “
Effective Date ”), and ending on June 30, 2012
(the “ Initial Term ”), unless terminated
earlier in accordance with the terms of this Agreement;
provided , however , that the Initial Term shall be
automatically extended until December 31, 2012 if Employee
opts for the modification to the bonus calculation method for the
2008 Bonus Year set forth in Section 3(b)(ii)(B) below; and
provided further , that the term of this
Agreement shall be extended for additional one-year periods (each,
an “ Extension Term ”) unless either party
notifies the other party in writing at least ninety (90) days
prior to the expiration of the Initial Term or any Extension Term.
The Initial Term, together with any Extension Term, is collectively
referred to herein as the “ Term .”
2. Duties and
Responsibilities of Employee .
(a) Title, Duties and
Responsibilities . During the Term, Employee shall serve as the
President and Chief Operating Officer of Company under the
supervision of the Chief Executive Officer of Company (the “
Supervisor ”), and shall diligently and faithfully
perform all duties and responsibilities as may be assigned to him
from time to time by or upon the authority of Board of Directors of
Company or the Supervisor, in each case consistent with his
positions. Such duties shall specifically include, without
limitation: (i) serving on the board of directors of Company
or any subsidiary of Hollywood Media Corp., a Florida corporation
and the parent company of Company (“ HMC ”), if
so requested by Supervisor; (ii) management of the day-to-day
operations of Company and Totally Hollywood TV, LLC, a wholly-owned
subsidiary of HMC that operates the Hollywood.com Television cable
television network (“ THTV ”); (iii) the
duty to promptly report to the Supervisor any event or occurrence
in the business of Company or THTV that would reasonably be
expected to be material to such businesses or HMC; and
(iv) the duty to obtain the written consent of the Supervisor
prior to the entry into any contract or arrangement by or on behalf
of Company, THTV or their respective businesses (A) involving
any payment or series of payments by or to Company or THTV of more
than $100,000, whether in one or a series of transactions, or
(B) which is for a term of more than three years and is not
cancelable by Company or THTV on one hundred
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twenty
(120) days’ or less prior written notice (without
penalty or payment of any kind). Employee accepts such employment
upon the terms and conditions contained in this Agreement. Employee
shall at all times perform his duties and responsibilities under
this Agreement and conduct the business of Company and THTV in
compliance with: (1) all policies and procedures of Company
and HMC communicated to Employee, including but not limited to any
and all employee handbooks and codes of conduct and responsibility
provided to Employee, as amended from time to time, and
(2) all applicable laws, rules, regulations or ordinances and
in compliance with any judgments, order or decrees or other legal
obligations binding on Company, THTV and/or HMC.
(b) Required Performance
. During the Term, Employee shall devote all of his working time to
the performance of the services required under this Agreement and
shall not engage in any other business matters, except that
Employee may serve on educational, religious, civic or charitable
boards or committees and/or make and attend to personal business
activities (“ Permitted Collateral Activities
”). Employee may engage in Permitted Collateral Activities so
long as: (i) none of the Permitted Collateral Activities
directly or indirectly (or through any affiliated entity) competes
or expects to compete with the business of Company or any other HMC
Entity (as defined below) anywhere in the world; (ii) such
Permitted Collateral Activities do not impair or interfere with
Employee’s performance of his duties hereunder;
(iii) such Permitted Collateral Activities are conducted in a
manner that does not impair the business of Company, THTV or their
respective employees, and do not impose any expenses or costs upon
Company or any other HMC Entity; and (iv) the Permitted
Collateral Activities do not involve any employees or consultants
of, or utilize any assets, resources or equipment of,
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Company
or any other HMC Entity. For purposes of this Agreement, HMC and
its subsidiaries, together with any nonconsolidated businesses of
HMC, including MovieTickets.com and Netco Partners, are referred to
herein as the “ HMC Entities ” or individually
as an “ HMC Entity .”
(c) Certain Representations
and Warranties . Employee represents and warrants to Company
that (i) he has had the opportunity to obtain advice of
counsel of his own choosing in the negotiations for and preparation
of this Agreement, that he has read this Agreement, that he has had
this Agreement fully explained to him by such counsel (if
consulted) and that he is fully aware of its contents and legal
effects, and (ii) he has no obligations to a former employer
or any other third party, legal or otherwise, that are inconsistent
with the terms of this Agreement or that would in any way restrict
Employee from accepting employment with Company pursuant to the
terms of this Agreement.
3. Compensation .
(a) Annual Base Salary .
Employee shall be paid a base annual salary during the period he is
employed hereunder at the annual rate of two hundred fifty thousand
dollars ($250,000) (the “ Base Salary ”), with
such Base Salary payable in installments consistent with
Company’s normal payroll schedule, subject to applicable
withholding and other taxes. Beginning on the first anniversary of
the Effective Date, and on each successive anniversary of the
Effective Date during the Term, Employee’s Base Salary shall
be increased annually by no less than a percentage equal to the
increase in the Consumer Price Index for the Los Angeles,
California area as published by the United States Government during
that year.
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(b) EBITDA Bonuses . In
addition to the Base Salary set forth above, the Employee shall
have the right to receive additional cash bonuses as follows:
(i)
2008 EBITDA Bonus . For the one year period ended
June 30, 2008 (the “ 2008 Bonus Year ”),
Employee shall be entitled to receive a cash bonus equal to the sum
of the following: (A) ten percent (10%) of the first five
million dollars ($5,000,000) of positive Combined EBITDA (as
defined in Section 3(b)(v) below) achieved for the 2008 Bonus
Year; and (B) five percent (5%) of any positive Combined
EBITDA achieved for the 2008 Bonus Year in excess of five million
dollars ($5,000,000); provided , that for purposes of
determining the Combined EBITDA achieved for the 2008 Bonus Year,
the Combined EBITDA for the first quarter of the 2008 Bonus Year
shall be calculated by averaging the Combined EBITDA achieved
during the months of August 2007 and September 2007 and
multiplying such averaged amount by three. For illustrative
purposes only, if the Combined EBITDA achieved for the 2008 Bonus
Year is six million dollars ($6,000,000), then Employee would be
entitled to an EBITDA bonus for the 2008 Bonus Year of five hundred
fifty thousand dollars ($550,000), which is equal to (1) 10%
of the first $5,000,000 of such Combined EBITDA, or $500,000,
plus (2) 5% of the remaining $1,000,000 of such
Combined EBITDA, or $50,000.
(ii)
Modifications to Bonus Calculation Method for 2008 Bonus
Year . For the purpose of calculating the EBITDA bonus for the
2008 Bonus Year, Employee shall have the option of selecting one of
the following two modifications to the calculation method set forth
in Section 3(b)(i) above (in each case disregarding the
proviso at the end of the first sentence in such
Section 3(b)(i)): (A) Employee may choose to exclude the
results of the first six months of the 2008 Bonus Year from the
calculation of Combined EBITDA, in which case
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the
Combined EBITDA achieved for the period beginning on
January 1, 2008 and ending on June 30, 2008 would be
doubled for purposes of determining the EBITDA bonus for the 2008
Bonus Year; and (B) Employee may choose to defer the
determination of the EBITDA bonus for the 2008 Bonus Year by six
months, in which case “2008 Bonus Year” shall be
defined as the one year period ended December 31, 2008 and the
Initial Term shall be extended by six months in accordance with
Section 1 above. Employee shall provide Company with written
notice of its choice of either modification to the bonus
calculation method on or prior to June 30, 2008, and in the
absence of any such notice the unmodified calculation method set
forth in Section 3(b)(i) above shall be used.
(iii)
EBITDA Bonuses for Successive Bonus Years . For each one
year period following the 2008 Bonus Year (each, a “ Bonus
Year ”), if the Combined EBITDA achieved for such Bonus
Year equals or exceeds the Combined EBITDA achieved for immediately
preceding Bonus Year (the “ Prior Year Combined EBITDA
”), then Employee shall be entitled to receive a cash bonus
equal to the sum of the following: (A) five percent (5%) of
the positive Combined EBITDA achieved for such Bonus Year equal to
the amount of the Prior Year Combined EBITDA; (B) ten percent
(10%) of the first five million dollars ($5,000,000) of positive
Combined EBITDA achieved for such Bonus Year in excess of the Prior
Year Combined EBITDA; and (C) five percent (5%) of any
positive Combined EBITDA achieved for such Bonus Year in excess of
(1) the Prior Year Combined EBITDA plus (2) five
million dollars ($5,000,000). If the Combined EBITDA achieved for
such Bonus Year is less than Prior Year Combined EBITDA, then
Employee shall not receive any EBITDA bonus for such Bonus Year.
For illustrative purposes only, if the Combined EBITDA achieved for
a Bonus
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Year is
seven million dollars ($7,000,000), and the Prior Year Combined
EBITDA was one million five hundred thousand dollars ($1,500,000),
then Employee would be entitled to an EBITDA bonus for such Bonus
Year of six hundred thousand dollars ($600,000), which is equal to
(1) 5% of the $1,500,000 of Combined EBITDA for such Bonus
Year that is equal to the Prior Year Combined EBITDA, or $75,000,
plus (2) 10% of the first $5,000,000 of Combined EBITDA
for such Bonus Year in excess of the Prior Year Combined EBITDA, or
$500,000, plus (3) 5% of the remaining $500,000 of
Combined EBITDA for such Bonus Year, or $25,000.
(iv)
Payment of Bonuses . The EBITDA bonus payable for any Bonus
Year, if earned, shall be (A) subject to applicable
withholding and other taxes and (B) due and payable within
ninety (90) days of the end of such Bonus Year.
Notwithstanding the foregoing, for any Bonus Year after the 2008
Bonus Year, if Company determines in its sole discretion that the
Combined EBITDA achieved during the first two fiscal quarters of
such Bonus Year indicates that Employee will be entitled to an
EBITDA bonus for such Bonus Year, Employee will be entitled to a
pro-rated advance payment of such EBITDA bonus in an amount to be
determined by Company; provided , however , if the
final calculation of the EBITDA bonus for such fiscal year
indicates that Employee is not entitled to an EBITDA bonus for such
fiscal year or the amount of such EBITDA bonus is less than the
amount advanced to Employee pursuant to this sentence, then the
amount by which the excess advance payment exceeds the actual
EBITDA bonus earned, if any, may be applied by Company to offset
against any other payments due to Employee by Company under this
Agreement, including, but not limited to Base Salary. It is the
parties’ express intention that such offset shall not be
deemed an unlawful
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deduction from wages under any applicable federal, state or local
law. Employee further agrees to reimburse the Company for any
excess advance payment of an EBITDA bonus if, for any reason, and
to the extent to which, the Company cannot offset the excess
advance payment from any other payments due to Employee by Company
under this Agreement.
(v)
Definition of Combined EBITDA . For purposes of this
Agreement, “ Combined EBITDA ” for any specified
period means the Net Income of each of Company and THTV for such
specified period plus (A) federal income taxes deducted
in determining the Net Income of each of Company and THTV for that
period, (B) any interest on indebtedness for borrowed money
deducted in determining the Net Income of each of Company and THTV
for that period, and (C) any depreciation expense and
amortization expense deducted in determining the Net Income of each
of Company and THTV for that period. The parties acknowledge and
agree that, for purposes of calculating the Combined EBITDA
hereunder: (1) with respect to any businesses or entities
acquired by Company or THTV during the Term, only the annual EBITDA
achieved by such businesses or entities during the twelve
(12) month period beginning on the date of acquisition in
excess of their annual EBITDA with respect to the twelve (12) month
period immediately preceding the date of acquisition shall be
included in the calculation of Combined EBITDA; (2) with
respect to any minority interest in a business or entity acquired
by Company or THTV during the Term, no distributions received by
Company or THTV as a result of such minority interest shall be
included in the calculation of Combined EBITDA until the aggregate
amount of such distributions exceeds the original investment made
by Company or THTV for such minority interest, after factoring in a
ten percent (10%) return on investment; (3) any negative
EBITDA incurred by any business started by Company or
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THTV
during the Term (each, a “ Start-Up Business ”)
shall be excluded; provided , that any future positive
EBITDA generated by each Start-Up Business will be excluded from
the annual calculations of Combined EBITDA until such time that the
aggregate amount of positive EBITDA generated by an individual
Start-Up Business exceeds the aggregate amount of negative EBITDA
incurred by such Start-Up Business that was previously excluded
from the annual EBITDA calculations pursuant to this sentence; and
(4) with respect to any business or entity sold or otherwise
disposed of by Company or THTV during the Term, only the EBITDA
achieved by such business or entity through the date of sale or
disposition shall be included in the calculation of Combined
EBITDA; provided , that the Company Fair Market Value (as
defined in Section 3(c)(i) below) shall be reduced by an
amount equal to the aggregate proceeds received by Company or THTV
as a result of such sale or disposition minus any and all
brokerage fees, finders fees, investment banker fees and other
transaction costs and fees and closing costs incurred or paid by
Company or THTV in connection with such sale or disposition,
including but not limited to legal and accounting fees
(collectively, the “ Subsidiary Sale Proceeds
”). Combined EBITDA shall be determined in good faith by
Company’s principal accounting officer (which person
currently is HMC’s Chief Accounting Officer), based upon
(x) generally accepted accounting principles in the United
States (“ GAAP ”), (y) the financial
statements of Company and THTV prepared in accordance with GAAP
consistent with past practice to the extent permissible and
practicable (including as prepared in connection with the
preparation and audit of HMC’s audited consolidated financial
statements (“ HMC Financial Statements ”)) and
(z) the HMC Financial Statements. Employee shall have the
right
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to
review any documents related to the calculation of Combined EBITDA
and to receive a written explanation of how the Combined EBITDA was
determined for each Bonus Year.
(c) Other Bonuses . In
addition to the annual EBITDA bonuses set forth above, Employee
shall be eligible for either the Sale Bonus (as defined below)
under the following Section 3(c)(i) or the Term Bonus (as
defined below) under the following Section 3(c)(iv), subject
to the following terms and conditions:
(i)
Bonus Upon Sale of Company. If, at any time during the Term
and prior to the expiration or early termination of this Agreement,
(A) Employee is then currently employed under this Agreement
and (B) all or substantially all of Company’s assets
(but at least assets comprising 80% or more of the book value of
Company’s assets, after elimination of inter-company accounts
) or 80% of Company’s capital stock is sold to a third-party
unaffiliated with Company or HMC and, as a result of such
transaction, the incumbent members of the Board of Directors of the
Company immediately prior to the transaction cease to constitute at
least a majority of the Board of Directors of the Company following
such transaction (a “ Company Sale ”), then
Employee shall be eligible to receive a bonus (a “ Sale
Bonus ”) equal to (1) five percent (5%) of the
portion of the Net Purchase Price (as defined below) that exceeds
twenty-eight million dollars ($28,000,000) less any Subsidiary Sale
Proceeds (as defined in Section 3(b)(v) above) (the “
Company Fair Market Value ”) minus (2) any
Term Bonus previously paid to Employee in accordance with
Section 3(c)(iv) below, to be payable at HMC’s option
and sole discretion either in cash or a proportionate share of the
type of consideration rendered by buyer at closing. For purposes
hereof, “ Net Purchase Price ” shall mean the
purchase price paid to Company and/or HMC at closing for the
purchase of Company
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or its
assets less the sum of (x) any and all debt, payables or other
liabilities of Company or any of its subsidiaries not assumed or
acquired by purchaser at the close of such sales (in other words,
all such liabilities that remain liabilities of HMC or any
subsidiary of HMC following the closing of such sale), and
(y) any and all brokerage fees, finders fees, investment
banker fees and other transaction costs and fees and closing costs
incurred or paid by HMC or any subsidiary of HMC in connection with
such sale of Company or its assets, including but not limited to
legal and accounting fees. It is hereby understood and agreed that
neither of the following events shall be considered a
“Company Sale” for purposes hereof: (I) the sale
of all or substantially all of the assets or stock of HMC; or
(II) the acquisition of substantial ownership or control of
Company or a substantial portion of its operations by members of
executive management of the Company or HMC, or an entity they
control, either alone or along with participating private equity
firms.
(ii)
Employment Commitment . If the Company Sale occurs while
Employee is actively employed by Company, then, if requested by
Company, Employee agrees to continue his employment with Company
for a period of up to one (1) year following the date of the
Company Sale, as determined by Company in its sole discretion,
irrespective of the length of time remaining in the Term (the
“ Transition Period ”). During the Transition
Period, Employee shall continue receiving the Base Salary payable
to the Employee in accordance with Section 3(a) above as well as
any EBITDA bonus earned in accordance with Section 3(b) above, but
will not be entitled to any Term Bonus or additional Sale Bonus in
accordance with Section 3(c).
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(iii)
Timing of Sale Bonus Payment .
(A) If
the Company Sale occurs while Employee is employed and Company
requests that Employee continue his employment during the
Transition Period, then (1) fifty percent (50%) of the Sale
Bonus will be paid to Employee upon the closing of the Company Sale
and (2) fifty percent (50%) of the Sale Bonus will be held in an
interest bearing escrow account, with principal and interest to be
paid to Employee upon the expiration of the Transition Period,
subject to Employee’s prior voluntary execution of (x) a
written release of any and all claims Employee may assert against
Company or any other HMC Entity, including without limitation any
claims for lost wages or benefits, stock options, compensatory
damages, punitive damages, attorneys’ fees, equitable relief
or any other form of damages or relief (excluding claims for
amounts which may be payable pursuant to this Agreement), which
Release shall be prepared by Company (the “ Release
”) and (y) a non-competition and non-solicitation
agreement in favor of Company and, with respect to the
non-solicitation covenants, any HMC Entity on terms consistent with
Employee’s Non-Interference and Non-Raiding covenants in this
Agreement (the “ Non-Competition Agreement ”);
provided , that Employee is not terminated for Cause or
resigns without Good Reason (as defined below) prior to the
expiration of the Transition Period.
(B) If
the Company Sale occurs while Employee is actively employed but
Employee is not asked to continue his employment du
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