EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of November 8, 2004, by and among Access Integrated
Technologies, Inc., a Delaware corporation (the "COMPANY"), the Investor
signatory hereto.
This Agreement is made pursuant to the Securities Purchase
Agreement, dated as of the date hereof, among the Company and the Investor (the
"PURCHASE AGREEMENT").
The Company and the Investor hereby agree as follows:
1. DEFINITIONS. Capitalized terms used and not otherwise defined herein
that are defined in the Purchase Agreement shall have the meanings given such
terms in the Purchase Agreement. As used in this Agreement, the following terms
shall have the respective meanings set forth in this Section 1:
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FILING DATE" means, with respect to a Registration Statement or an
amendment thereto, the date on which the Company files such Registration
Statement or amendment, as the case may be, with the Commission.
"INDEMNIFIED PARTY" shall have the meaning set forth in Section
5(c).
"INDEMNIFYING PARTY" shall have the meaning set forth in Section
5(c).
"INVESTOR" means the investor party to the Purchase Agreement, and
any other holder or holders, as the case may be, from time to time of
Registrable Securities.
"LOSSES" shall have the meaning set forth in Section 5(a).
"OTHER SECURITIES" means (i) all Common Stock outstanding as of the
date hereof; (ii) any Common Stock issued as a dividend or other distribution
with respect to, or in exchange for or in replacement of, such shares of Common
Stock; and (iii) any shares of Common Stock issuable upon the exercise of any
warrant outstanding now or issuable from time to time; PROVIDED, HOWEVER, that
Other Securities shall not include (x) any Registrable Securities or (y) those
securities described in (i), (ii) and (iii) above that (A) have been effectively
registered under Section 5 of the Securities Act and disposed of pursuant to a
Registration Statement or (B) have been transferred pursuant to Rule 144 under
the Securities Act or any successor rule.
"PRIMARY SHARES" means the authorized but unissued shares of Common
Stock held by the Company in its treasury.
"PROCEEDING" means an action, claim, suit, investigation or
proceeding, whether commenced or threatened.
"PROSPECTUS" means the prospectus included in a Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities or Other Securities covered by the Registration Statement, and all
other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
"PURCHASE AGREEMENT" has the meaning set forth in the preamble
hereof.
"REGISTRABLE SECURITIES" means the shares of Common Stock issued or
issuable to the Investor pursuant to the Purchase Agreement, together with any
securities issued or issuable upon any stock split, dividend or other
distribution, recapitalization or similar event in connection with the
foregoing; PROVIDED, HOWEVER, that Registrable Securities shall not include
those securities described above that (A) have been effectively registered under
Section 5 of the Securities Act and disposed of pursuant to a Registration
Statement or (B) have been transferred pursuant to Rule 144 under the Securities
Act or any successor rule.
"REGISTRATION STATEMENT" means a registration statement on Form X-0,
X-0 or SB-2, or any successor form thereto, under the Securities Act, including
(in each case) the Prospectus, amendments and supplements to such registration
statements or Prospectus, including pre-effective and post-effective amendments,
all exhibits thereto, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statements.
"RULE 144" means Rule 144 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"RULE 415" means Rule 415 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"RULE 424" means Rule 424 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLING HOLDER QUESTIONNAIRE" shall have the meaning set forth in
Section 2(c).
2. REGISTRATION.
(a) DEMAND REGISTRATION RIGHTS.
1. The Investor (the "DEMAND INVESTOR") may, by written notice
(the "DEMAND Notice"), request that the Company file a
Registration Statement with the Commission covering its
Registrable Securities (the "DEMAND SECURITIES"). Such
Registration Statement shall contain (unless otherwise directed
by the Demand Investor and except if otherwise required pursuant
to written comments received from the Commission upon a review of
such Registration Statement or pursuant to judicial and SEC
interpretations) the "PLAN OF DISTRIBUTION" attached hereto as
ANNEX A. The Company shall use its reasonable best efforts to
file such Registration Statement with the Commission covering
such Demand Securities (including, without limitation,
appropriate qualification under applicable blue sky or other
state securities laws and appropriate compliance with applicable
regulations under the Securities Act and any other governmental
requirements or regulations) in accordance with this Section
2(a)(1):
2. LIMITATIONS. The Company shall not be obligated to use its
reasonable best efforts to file and cause to become effective (i)
more than one (i) Registration Statement initiated pursuant to
this Section 2(a) in any twelve (12) month period, (ii) any
Registration Statement during any period in which any other
registration statement (other than on Form S-4 or Form S-8
promulgated under the Securities Act or any successor forms
thereto) pursuant to which any Primary Shares are to be or were
sold has been filed and not withdrawn or has been declared
effective within the prior ninety (90) days and (iii) any
registration that would require an audit of the Company to be
performed outside of the ordinary course of business.
3. DELAY. The Company may delay the filing or effectiveness of
any Registration Statement after the date of receipt of a Demand
Notice if at the time of such receipt (i) the Company is engaged,
or has fixed plans to engage, within ninety (90) days of the time
of such receipt, in a firm commitment underwritten public
offering of Primary Shares in which the Investor may include
Registrable Securities pursuant to Section 2(b) hereof or (ii)
the Company provides to the Demand Investor a written
certificate, signed by the President of the Company, stating that
in the good faith determination of the Board of Directors, such
registration and offering would be seriously detrimental to any
material transaction involving the Company; PROVIDED, however,
that the Company may only delay the filing or effectiveness of a
Registration Statement pursuant to this Section 2(a)(3) for a
period not in excess of one hundred twenty (120) days from the
effective date of such offering, or the date of commencement of
such other transaction, as the case may be, but in no event more
than one hundred eighty (180) days from the date of a request for
registration pursuant to this Section 2(a).
4. REGISTRATION MECHANICS: ALLOCATION OF REGISTRABLE SECURITIES
IN DEMAND REGISTRATION. Following receipt of a Demand Notice
under Section 2(a) hereof, the Company shall use its reasonable
best efforts to register under the Securities Act, for public
sale in accordance with the method of disposition specified in
the Demand Notice, the Demand Securities. Notwithstanding the
foregoing, if the managing underwriter, if any, of such
registration advises the Company that the inclusion of the Demand
Securities proposed to be included in such registration would
interfere with the successful marketing (including pricing) of
the Demand Securities proposed to be included in such
registration, then the number of Demand Securities proposed to be
included in such registration shall be limited accordingly.
5. WITHDRAWAL IN DEMAND REGISTRATION. At any time before the
Registration Statement covering Demand Securities becomes
effective, the requesting Demand Investor may request the Company
to withdraw or not to file such Registration Statement. In that
event, the Investor shall have used one of its demand
registration rights under this Section 2(a) unless the Investor
shall pay to the Company the expenses incurred in connection
therewith by the Company through the date of such request.
(b) PIGGYBACK REGISTRATION RIGHTS.
1. NOTICE OF PIGGYBACK REGISTRATION AND INCLUSION OF REGISTRABLE
SECURITIES. Other than as provided in Section 2(a), if the
Company at any time proposes for any reason to register any of
its Primary Shares or Other Securities with the Commission
(either for its own account or the account of a security holder)
on a form that would be suitable for a registration involving
solely Common Stock (except with respect to registrations on Form
S-4 or Form S-8 promulgated under the Securities Act or any
successor forms thereto), the Company will (i) promptly give the
Investor written notice thereof (which shall include a list of
the jurisdictions in which the Company intends to attempt to
qualify such securities under the applicable blue sky or other
state securities laws) and (ii) include in such registration (and
any related qualification under blue sky laws or other compliance
laws or regulations), and in any underwriting involved therein,
all the Registrable Securities specified in a written request
delivered to the Company by any the Investor within twenty (20)
days after delivery of such written notice from the Company.
2. NOTICE OF UNDERWRITING IN PIGGYBACK REGISTRATION. If the
registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company
shall so advise the Investor as a part of the written notice
given pursuant to Section 2(b)(1) hereof. In such event, the
right of the Investor to have its Registrable Securities
registered shall be conditioned upon such underwriting and the
inclusion of its Registrable Securities in such underwriting to
the extent provided in this Section 2(b). The Investor proposing
to distribute its Registrable Securities through such
underwriting shall (together with the Company and the other
holders distributing their securities through such underwriting)
enter into an underwriting agreement with the underwriter's
representative for such offering. The Investor shall have no
right to participate in the selection of the underwriters for an
offering pursuant to this Section 2(b).
3. MARKETING LIMITATION IN PIGGYBACK REGISTRATION. In the event
the underwriter's representative advises, in writing, the Company
and the Investor seeking registration of its Registrable
Securities pursuant to this Section 2(b) that market factors
(including, without limitation, the aggregate number of shares of
Common Stock requested to be registered, the general condition of
the market, and the status of the persons proposing to sell
securities pursuant to the registration) require a limitation of
the number of securities to be underwritten, the underwriter's
representative (subject to the allocation priority set forth in
Section 2(b)(4) hereof) may, in the case of any registered public
offering not otherwise as a result of a Demand Notice, prohibit
any or all of the Investor's Registrable Securities from being
included in such registration and underwriting.
4. ALLOCATION OF COMMON STOCK IN PIGGYBACK REGISTRATION. In the
event that the underwriter's representative limits the number of
Registrable Securities to be included in a registration pursuant
to Section 2(b)(3) hereof, and such registration is not a result
of a Demand Notice, any Registrable Securities held by officers
of the Company shall be excluded from such registration and
underwriting to the extent required by such limitation. If a
limitation of the number of Registrable Securities is still
required after such exclusion, the number of Registrable
Securities that may be included in such registration (which shall
not be a result of a Demand Notice) and underwriting shall be
included, in the following order: (i) first, the Primary Shares
and (ii) second, pro rata among the Investor (upon requesting to
have its Registrable Securities registered pursuant to this
Section 2) and the holders of the Other Securities who exercise
their registration rights, if any, based upon the total number of
shares of Common Stock requested to be registered by each such
holder).
5. WITHDRAWAL IN PIGGYBACK REGISTRATION. If the Investor
disapproves of the terms of any such underwriting, it may elect
to withdraw therefrom by written notice to the Company and the
underwriter's representative delivered at least seven (7) days
prior to the effective date of the Registration Statement. Any
Registrable Securities or other securities excluded or withdrawn
from such underwriting shall be withdrawn from such registration.
6. The Investor, upon requesting to have its Registrable
Securities registered pursuant to this Section 2 agrees to
furnish to the Company a completed Questionnaire in the form
attached to this Agreement as ANNEX B (a "SELLING HOLDER
QUESTIONNAIRE") at any time prior to the fifth Trading Day prior
to the Filing Date. The Company shall not be required to include
the Registrable Securities of the Investor in a Registration
Statement if it fails to furnish to the Company a fully completed
Selling Holder Questionnaire at least five (5) Trading Days prior
to the Filing Date; PROVIDED, HOWEVER, that in no case shall the
Company have any liability whatsoever as a result of, or in
connection with, any the Investor's failure to complete a Selling
Holder Questionnaire.
3. REGISTRATION PROCEDURES.
In connection with the Company's registration obligations under
Section 2, the Company shall:
(a) (i) Not less than six (6) Trading Days prior to the Filing Date
of a Registration Statement or any amendment or supplement thereto, furnish to
the Investor of Registrable Securities being registered under Section 2, copies
(via facsimile or otherwise) of the "Selling Stockholders" section of such
document, the "Plan of Distribution" and any risk factor contained in such
document that addresses specifically this transaction or the Selling
Stockholders, as proposed to be filed, which documents will be subject to the
review of the Investor; and (ii) not file a Registration Statement or any
amendments or supplements thereto that does not contain the disclosure
containing the Investor as a "Selling Stockholder" as provided to the Company by
the Investor in writing in connection therewith.
(b) (i) Prepare and file with the Commission such amendments,
including post-effective amendments, to each Registration Statement and the
Prospectus used in connection therewith as may be necessary to keep such
Registration Statement continuously effective as to the applicable Registrable
Securities for up to one hundred twenty (120) days; (ii) cause the related
Prospectus to be amended or supplemented by any required Prospectus supplement,
and as so supplemented or amended to be filed pursuant to Rule 424; (iii)
respond as promptly as reasonably possible to any comments received from the
Commission with respect to each Registration Statement or any amendment thereto
and, as promptly as reasonably possible provide the Investor, true and complete
copies of all material correspondence from and to the Commission relating to
such Registration Statement that would not result in the disclosure to the
Investor of material and non-public information concerning the Company; and (iv)
comply in all material respects with the provisions of the Securities Act and
the Exchange Act with respect to the Registration Statements and the disposition
of all Registrable Securities covered by each Registration Statement.
(c) Notify the Investor as promptly as reasonably possible (and, in
the case of (i)(A) below, not less than three (3) Trading Days prior to such
filing) and (if requested by any such Person) confirm such notice in writing no
later than one (1) Trading Day following the day: (i)(A) when a Prospectus or
any Prospectus supplement or post-effective amendment to a Registration
Statement is proposed to be filed; (B) when the Commission notifies the Company
whether there will be a "review" of such Registration Statement and whenever the
Commission comments in writing on such Registration Statement (the Company shall
provide true and complete copies thereof and all written responses thereto to
the Investor that pertain to the Investor as a Selling Stockholder or to the
Plan of Distribution, but not information which the Company believes would
constitute material and non-public information); and (C) with respect to each
Registration Statement or any post-effective amendment, when the same has become
effective; (ii) of any request by the Commission or any other federal or state
governmental authority for amendments or supplements to a Registration Statement
or Prospectus or for additional information; (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of a Registration
Statement covering any or all of the Registrable Securities or the initiation of
any Proceedings for that purpose; (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction, or the initiation or threatening of any Proceeding for such
purpose; and (v) of the occurrence of any event or passage of time that makes
the financial statements included in a Registration Statement ineligible for
inclusion therein or any statement made in such Registration Statement or
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires any revisions to such
Registration Statement, Prospectus or other documents so that, in the case of
such Registration Statement or the Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(d) Use its reasonable best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of (i) any order suspending the effectiveness of a
Registration Statement, or (ii) any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction, at the earliest practicable moment.
(e) Furnish to the Investor, at least one conformed copy of each
Registration Statement and each amendment thereto and all exhibits to the extent
requested by it (including those previously furnished) promptly after the filing
of such documents with the Commission.
(f) Promptly deliver to the Investor as many copies of each
Prospectus or Prospectuses (including each form of prospectus) and each
amendment or supplement thereto as the Investor may reasonably request. The
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by the selling Investor in connection with the offering and
sale of the Registrable Securities covered by such Prospectus and any amendment
or supplement thereto.
(g) Prior to any public offering of Registrable Securities, register
or qualify, or cooperate with the selling Investor in connection with the
registration or qualification (or exemption from such registration or
qualification) of, such Registrable Securities for offer and sale under the
securities or "blue sky" laws of all jurisdictions within the United States,
keep each such registration or qualification (or exemption therefrom) effective
for up to 120 days and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the Registration Statements.
(h) Cooperate with the Investor to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be delivered
to a transferee pursuant to the Registration Statements, which certificates
shall be free, to the extent permitted by the Purchase Agreement, of all
restrictive legends, and to enable such Registrable Securities to be in such
denominations and registered in such names as the Investor may request.
4. REGISTRATION EXPENSES.
(a) All expenses incurred by the Company in complying with Sections
2(a) and 3 hereof, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees of the American Stock Exchange, fees of transfer agents and registrars,
costs of insurance and fees and disbursements of one counsel for the sellers of
Registrable Securities are called "Registration Expenses". The Demand Investor
will pay all Registration Expenses in connection with the Registration
Statements under Section 2(a) and 3 hereof. All Registration Expenses in
connection with each Registration Statement under Sections 2(a) hereof shall be
borne by the Investor.
(b) All fees and expenses incident to the performance of or
compliance with Section 2(b) and 3 by the Company shall be borne by the Company
whether or not any Registrable Securities are sold pursuant to a Registration
Statement. The fees and expenses referred to in the foregoing sentence shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (A) with respect to filings required to be
made with the American Stock Exchange or any other trading market on which the
Common Stock is then listed for trading, and (B) in compliance with applicable
state securities or "blue sky" laws), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities and of
printing prospectuses if the printing of prospectuses is reasonably requested by
the Investor), (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company, (v) Securities Act liability
insurance, if the Company so desires such insurance, and (vi) fees and expenses
of all other Persons retained by the Company in connection with the consummation
of the transactions contemplated by Sections 2(b) and 3.
5. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall,
notwithstanding any termination of this Agreement, indemnify and hold harmless
the investor, its officers, directors, agents, investment advisors, partners,
members and employees, each Person who controls the Investor (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, agents and employees of each such controlling Person, to
the fullest extent permitted by applicable law, from and against any and all
losses, claims, damages, liabilities, costs (including, without limitation,
reasonable costs of preparation and reasonable attorneys' fees) and expenses
(collectively, "Losses"), as incurred, arising out of or relating to any untrue
or alleged untrue statement of a material fact contained in any Registration
Statement, any Prospectus or any form of prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or
relating to any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein (in the case of any
Prospectus or form of prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, except to the extent,
but only to the extent, that (I) such untrue statements or omissions are based
solely upon information regarding the Investor furnished in writing to the
Company by the Investor expressly for use therein, or to the extent that such
information relates to the Investor or the Investor's proposed method of
distribution of Registrable Securities and was reviewed and expressly approved
in writing by the Investor expressly for use in the Registration Statement, such
Prospectus or such form of prospectus or in any amendment or supplement thereto
(it being understood that the Investor has approved ANNEX hereto for this
purpose) or (2) in the case of an occurrence of an event of the type specified
in Section 3(c)(ii)-(v), the use by the Investor of an outdated or defective
Prospectus after the Company has notified the Investor in writing that the
Prospectus is outdated or defective and prior to the receipt by the Investor of
an Advice or an amended or supplemented Prospectus, but only if and to the
extent that following the receipt of such Advice or the amended or supplemented
Prospectus the misstatement or omission giving rise to such Loss would have been
corrected. The Company shall notify the Investor promptly of the institution,
threat or assertion of any Proceeding against the Company of which the Company
is aware in connection with the transactions contemplated by this Agreement.
(b) INDEMNIFICATION BY INVESTOR. The Investor shall, severally and
not jointly, indemnify and hold harmless the Company, its directors, officers,
agents and employees, each Person who controls the Company (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the
directors, officers, agents or employees of such controlling Persons, to the
fullest extent permitted by applicable law, from and against all Losses, as
incurred, arising solely out of or based solely upon: (x) the Investor's failure
to comply with the prospectus delivery requirements of the Securities Act or (y)
any untrue statement of a material fact contained in any Registration Statement,
any Prospectus, or any form of prospectus, or in any amendment or supplement
thereto, or arising solely out of or based solely upon any omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading to the extent, but only to the extent that, (1) such
untrue statements or omissions are based solely upon information regarding the
Investor furnished in writing to the Company by the Investor expressly for use
therein, or to the extent that such information relates to the Investor or its
proposed method of distribution of Registrable Securities and was reviewed and
expressly approved in writing by the Investor expressly for use in the
Registration Statement (it being understood that the Investor has approved ANNEX
A hereto for this purpose), such Prospectus or such form of prospectus or in any
amendment or supplement thereto or (2) in the case of an occurrence of an event
of the type specified in Section 3(c)(ii)-(v), the use by the Investor of an
outdated or defective Prospectus after the Company has notified the Investor in
writing that the Prospectus is outdated or defective and prior to the receipt by
the Investor of an Advice or an amended or supplemented Prospectus, but only if
and to the extent that following the receipt of such Advice or the amended or
supplemented Prospectus the misstatement or omission giving rise to such Loss
would have been corrected. In no event shall the liability of the selling
Investor hereunder be greater in amount than the dollar amount of the net
proceeds received by the Investor upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any Proceeding shall
be brought or asserted against any Person entitled to indemnity hereunder (an
"Indemnified Party"), such Indemnified Party shall promptly notify the Person
from whom indemnity is sought (the "Indemnifying Party") in writing, and the
Indemnifying Party shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to the Indemnified Party and the payment of all
fees and expenses incurred in connection with defense thereof; provided, that
the failure of any Indemnified Party to give such notice shall not relieve the
Indemnifying Party of its obligations or liabilities pursuant to th1s Agreement,
except (and only) to the extent that it shall be finally determined by a court
of competent jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have proximately and materially
adversely prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate counsel
in any such Proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
unless: (1) the Indemnifying Party has agreed in writing to pay such fees and
expenses; (2) the Indemnifying Party shall have failed promptly to assume the
defense of such Proceeding and to employ counsel reasonably satisfactory to such
Indemnified Party in any such Proceeding; or (3) the named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified Party
and the Indemnifying Party, and such Indemnified Party reasonably concludes
based upon the advice of counsel that a conflict of interest is likely to exist
if the same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and such counsel (one law firm) shall be at
the expense of the Indemnifying Party). The Indemnifying Party shall not be
liable for any settlement of any such Proceeding effected without its written
consent, which consent shall not be unreasonably withheld. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party, effect any
settlement of any pending Proceeding in respect of which any Indemnified Party
is a party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of
such Proceeding.
All fees and expenses of the Indemnified Party subject to
indemnification herein (including reasonable fees and expenses to the extent
incurred in connection with investigating or preparing to defend such Proceeding
in a manner not inconsistent with this Section) shall be paid to the Indemnified
Party, as incurred, within ten (10) Trading Days of written notice thereof to
the Indemnifying Party (regardless of whether it is ultimately determined that
an Indemnified Party is not entitled to indemnification hereunder; provided,
that the Indemnifying Party may require such Indemnified Party to undertake to
reimburse all such fees and expenses to the extent it is finally judicially
determined that such Indemnified Party is not entitled to indemnification
hereunder).
(d) CONTRIBUTION. If a claim for indemnification under Section 5(a)
or 5(b) is unavailable to an Indemnified Party (by reason of public policy or
otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and such
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 5(c), any reasonable attorneys' or other
reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such fees or
expenses if the indemnification provided for in this Section was available to
such party in accordance with its terms.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), the Investor shall not be
required to contribute, in the aggregate, any amount in excess of the amount by
which the proceeds actually received by the Investor from the sale of the
Registrable Securities subject to the Proceeding exceeds the amount of any
damages that the Investor has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission or other
event under Section 5(b), as the case may be, to which such contribution
applies.
The indemnity and contribution agreements contained in this Section
are in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
6. MISCELLANEOUS
(a) REMEDIES. In the event of a breach by the Company or by the
Investor of any of their obligations under this Agreement, the Investor or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company and the Investor agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agree that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) NO PIGGYBACK ON REGISTRATIONS. Except as and to the extent
specified in Section 2 hereof and SCHEDULE 6(B) hereto, neither the Company nor
any of the holders of Other Securities may include securities of the Company in
a Registration Statement. Except as and to the extent specified in SCHEDULE
3.1(V) of the Purchase Agreement, the Company has not previously entered into
any agreement granting any registration rights with respect to any of its
securities to any Person which have not been fully satisfied.
(c) COMPLIANCE. The Investor covenants and agrees that it will
comply with the prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities pursuant to
the Registration Statement.
(d) DISCONTINUED DISPOSITION. The Investor agrees by its acquisition
of such Registrable Securities that, upon receipt of a notice from the Company
of the occurrence of any event of the kind described in Section 3(c), the
Investor will forthwith discontinue disposition of such Registrable Securities
under the Registration Statement until the Investor's receipt of the copies of
the supplemented Prospectus and/or amended Registration Statement or until it is
advised in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus or Registration Statement. The
Company may provide appropriate stop orders to enforce the provisions of this
paragraph.
(e) AMENDMENTS AND WAIVERS. No provision of this Agreement may be
waived or amended except in a written instrument signed by the Company and the
Investor. No waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing waiver in the
future or a waiver of any subsequent default or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of either party
to exercise any right hereunder in any manner impair the exercise of any such
right.
(f) NOTICES. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Section prior to 6:30 p.m. (New
York time) on a Trading Day, (ii) the Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Agreement later than 6:30 p.m. (New
York time) on any date and earlier than 11:59 p.m. (New York time) on such date,
(iii) the Trading Day following the date of mailing, if sent by nationally
recognized overnight courier service, or (iv) upon actual receipt by the party
to whom such notice is required to be given. The address for such notices and
communications shall be as follows:
If to the Company: Access Integrated Technologies, Inc.
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Chief Executive Officer
With a copy to:
Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxxx Xxxxxxxxx, Esq.
If to the Investor: To the address set forth under the Investor's
name on the signature page hereto.
If to any other Person who is then the registered holder of the
Registrable Securities:
To the address of such holder as it appears in the stock
transfer books of the Company
or such other address as may be designated in writing hereafter, in the same
manner, by such Person.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties. The Company may not assign its rights or obligations hereunder
without the prior written consent of the Investor or the holder of the then
outstanding Registrable Securities. The Investor may assign its rights hereunder
in the manner and to the Persons as permitted under the Purchase Agreement.
(h) EXECUTION AND COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which when so executed shall be deemed to be
an original and, all of which taken together shall constitute one and the same
Agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature were the original
thereof.
(i) GOVERNING LAW. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
New York, without regard to the principles of conflicts of law thereof. Each
party hereto agrees that all Proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, employees
or agents) shall be commenced exclusively in the state and federal courts
sitting in the City of New York, Borough of Manhattan (the "New York Courts").
Each party hereto hereby irrevocably submits to the exclusive jurisdiction of
the New York Courts for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any
Proceeding, any claim that it is not personally subject to the jurisdiction of
any New York Court, or that such Proceeding has been commenced in an improper or
inconvenient forum. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such Proceeding by
mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for notices
to it under this Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner
permitted by law. Each party hereto hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
Proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. If either party shall commence a Proceeding to enforce any
provisions of this Agreement, then the prevailing party in such Proceeding shall
be reimbursed by the other party for its attorney's fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
Proceeding.
(j) CUMULATIVE REMEDIES. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.
(k) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(l) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
ACCESS INTEGRATED TECHNOLOGIES, INC.
By: /s/ A. Xxxx Xxxx
-------------------------------------
Name: A. Xxxx Xxxx
Title: Chief Executive Officer
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
BFS US SPECIAL OPPORTUNITIES TRUST PLC
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxxxx, President
XXXX Capital Group, Investment Adviser
Address for Notice:
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000, XX-00
Xxxxxx, XX 00000
Facsimile No.: 000-000-0000
Attn: Xxxx Xxxxxx or Xxxxxxxx Xxxxxx
RENAISSANCE US GROWTH INVESTMENT TRUST PLC
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxxxx, President
XXXX Capital Group, Investment Manager
Address for Notice:
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000, XX-00
Xxxxxx, XX 00000
Facsimile No.: 000-000-0000
Attn: Xxxx Xxxxxx or Xxxxxxxx Xxxxxx
ANNEX A
Plan of Distribution
The Selling Stockholders and any of their pledgees, donees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of Common Stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. The Selling Stockholders may use any one or more of the
following methods when selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o short sales (other than short sales established prior to the
effectiveness of the Registration Statement to which this Prospectus
is a part)
o broker-dealers may agree with the Selling Stockholders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
The Selling Stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this Prospectus.
Broker-dealers engaged by the Selling Stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the Selling Stockholders (or, if any broker-dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The Selling Stockholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The Selling Stockholders may from time to time pledge or grant a security
interest in some or all of the Shares owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell shares of Common Stock from time to time under this prospectus,
or under an amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act of 1933 amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest
as selling stockholders under this prospectus.
Upon the Company being notified in writing by a Selling Stockholder that
any material arrangement has been entered into with a broker-dealer for the sale
of Common Stock through a block trade, special offering, exchange distribution
or secondary distribution or a purchase by a broker or dealer, a supplement to
this Prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such Selling Stockholder and of
the participating broker-dealer(s), (ii) the number of shares involved, (iii)
the price at which such the shares of Common Stock were sold, (iv) the
commissions paid or discounts or concessions allowed to such broker-dealer(s),
where applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by reference in
this Prospectus, and (vi) other facts material to the transaction. In addition,
upon the Company being notified in writing by a Selling Stockholder that a donee
or pledge intends to sell more than 500 shares of Common Stock, a supplement to
this Prospectus will be filed if then required in accordance with applicable
securities law.
The Selling Stockholders also may transfer the shares of Common Stock in
other circumstances, in which case the transferees, pledgees or other successors
in interest will be the selling beneficial owners for purposes of this
Prospectus.
The Selling Stockholders and any broker-dealers or agents that are involved
in selling the shares may be deemed to be "underwriters" within the meaning of
the Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Each Selling Stockholder has represented and
warranted to the Company that it does not have any agreement or understanding,
directly or indirectly, with any person to distribute the Common Stock.
The Company has agreed to indemnify the Selling Stockholders against
certain losses, claims, damages and liabilities, including liabilities under the
Securities Act.
ANNEX B
SELLING SHAREHOLDER QUESTIONNAIRE
ACCESS INTEGRATED TECHNOLOGIES, INC.
SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial owner of Class A common stock (the "COMMON STOCK"),
of Access Integrated Technologies, Inc. (the "Company") understands that the
Company intends to file with the Securities and Exchange Commission (the
"COMMISSION") a Registration Statement for the registration and resale of the
Registrable Securities, in accordance with the terms of the Registration Rights
Agreement, dated as of October ___, 2004 (the "REGISTRATION RIGHTS AGREEMENT"),
among the Company and the undersigned. The undersigned further agrees to furnish
to the Company a fully completed Questionnaire at least five (5) Trading Days
prior to the Filing Date. All capitalized terms used and not otherwise defined
herein shall have the meanings ascribed thereto in the Registration Rights
Agreement.
The undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate:
QUESTIONNAIRE
1. NAME.
(a) Full Legal Name of Selling Securityholder
______________________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as (a) above)
through which Registrable Securities Listed in Item 3 below are held:
______________________________________________________________________
(c) Full Legal Name of Natural Control Person (which means a natural
person who directly you indirectly alone or with others has power to
vote or dispose of the securities covered by the questionnaire):
______________________________________________________________________
2. ADDRESS FOR NOTICES TO SELLING SECURITYHOLDER:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Telephone:______________________________________________________________________
Fax:____________________________________________________________________________
Contact Person:_________________________________________________________________
3. BENEFICIAL OWNERSHIP OF REGISTRABLE SECURITIES:
(a) Type and Principal Amount of Registrable Securities beneficially
owned:
4. BROKER-DEALER STATUS:
(a) Are you a broker-dealer?
Yes |_| No |_|
Note:If yes, the Commission's staff has indicated that you should be
identified as an underwriter in the Registration Statement.
(b) Are you an affiliate of a broker-dealer?
Yes |_| No |_|
(c) If you are an affiliate of a broker-dealer, do you certify that you
bought the Registrable Securities. in the ordinary course of business,
and at the time of the purchase of the Registrable Securities to be
resold, you had no agreements or understandings, directly or
indirectly, with any person to distribute the Registrable Securities?
Yes |_| No |_|
Note:If no, the Commission's staff has indicated that you should be
identified as an underwriter in the Registration Statement.
5. BENEFICIAL OWNERSHIP OF OTHER SECURITIES OF THE COMPANY OWNED BY THE
SELLING SECURITYHOLDER.
EXCEPT AS SET FORTH BELOW IN THIS ITEM 5, THE UNDERSIGNED IS NOT THE
BENEFICIAL OR REGISTERED OWNER OF ANY SECURITIES OF THE COMPANY OTHER THAN
THE REGISTRABLE SECURITIES LISTED ABOVE IN ITEM 3.
(a) Type and amount of other securities beneficially owned by the Selling
Securityholder:
________________________________________________________________________________
________________________________________________________________________________
6. RELATIONSHIPS WITH THE COMPANY:
EXCEPT AS SET FORTH BELOW, NEITHER THE UNDERSIGNED NOR ANY OF ITS
AFFILIATES, OFFICERS, DIRECTORS OR PRINCIPAL EQUITY HOLDERS (OWNERS OF 5%
OF MORE OF THE EQUITY SECURITIES OF THE UNDERSIGNED) HAS HELD ANY POSITION
OR OFFICE OR HAS HAD ANY OTHER MATERIAL RELATIONSHIP WITH THE COMPANY (OR
ITS PREDECESSORS OR AFFILIATES) DURING THE PAST THREE YEARS.
State any exceptions here:
___________________________________________________________________________
___________________________________________________________________________
The undersigned agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein that may occur subsequent to the date
hereof and prior to the effective date for the Registration Statement.
By signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 6 and the inclusion of such
information in the Registration Statement and the related prospectus. The
undersigned understands that such information will be relied upon by the Company
in connection with the preparation or amendment of the Registration Statement
and the related prospectus.
IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated:__________________________________ Beneficial Owner___________________
By:________________________________
Name:
Title:
PLEASE FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND
QUESTIONNAIRE, AND RETURN THE ORIGINAL BY OVERNIGHT MAIL, TO:
Access Integrated Technologies, Inc.
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
SCHEDULE 6(B)
HOLDERS OF REGISTRATION RIGHTS
Pursuant to the following agreements, the Company and/or its security holders
may include securities of the Company in a Registration Statement in addition to
the Registrable Securities:
1. Registration Rights Agreement, dated as of March 29, 2004,
between the Company and The Boeing Company
2. Registration Rights Agreement, dated as of March 24, 2004,
between the Company and certain investors partaking in the
Company's exchange offering
3. Registration Rights Agreement, dated as of January 9, 2004,
between the Company and Xxxx Xxxxxx
4. Registration Rights Agreement, dated as of November, 2003, among
the Company, Xxxxx Xxxxx and Xxxxxx Xxxxxxxxx
5. Third Amended and Restated Stockholders' Agreement, dated as of
July 28, 2003, among the Company, the Preferred Stockholders and
the Common Stockholders
NOTE: Stockholders of the Company that acquired their stock prior to the
Company's initial public offering ("IPO") executed Lock-up Agreements which, on
the effective date of the IPO, represented 98 percent of the outstanding stock
of the Company. In addition, pursuant to Section 3.4 of that certain Third
Amended And Restated Stockholders' Agreement, dated as of July 28, 2002, by and
among the Company and the stockholders listed therein, all stockholders of the
Company have agreed to be locked up following the Company's IPO. Accordingly,
the Company believes that 100 percent of the registrable securities that are the
subject of the agreements listed above, except for 53,534 shares of common stock
held by The Boeing Company (which shares are subject to adjustments for stock
splits and similar transactions), are restricted from selling their stock
pursuant to the terms of the Lock-up Agreement until at least November 10, 2005,
subject to the IPO underwriter's release of any locked-up shares.
