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EXECUTIVE EMPLOYMENT AGREEMENT

Employment Agreement

EXECUTIVE EMPLOYMENT AGREEMENT | Document Parties: Hollywoodcom, Inc You are currently viewing:
This Employment Agreement involves

Hollywoodcom, Inc

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Title: EXECUTIVE EMPLOYMENT AGREEMENT
Governing Law: New York     Date: 7/19/2007
Industry: Advertising     Law Firm: Weil Gotshal     Sector: Services

EXECUTIVE EMPLOYMENT AGREEMENT, Parties: hollywoodcom  inc
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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.   Company is engaged in the business of operating www.hollywood.com , an entertainment focused website;
 
B.   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
 
C.   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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