EXHIBIT 4.14
Form of Registration Rights Agreement
(debt for equity exchange)
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of March
24, 2004, by and among Access Integrated Technologies, Inc., a Delaware
corporation (the "Corporation"), and the individual or entity set forth on the
signature page hereto (the "Investor").
W I T N E S S E T H:
WHEREAS, the Corporation and the Investor have entered into that certain
Exchange Agreement, dated as of the date hereof, pursuant to which the
Corporation will, inter alia, issue shares ("Shares") of its Class A Common
Stock, par value $.001 (the "Common Stock") to the Investor in exchange for the
Note (as defined in such Exchange Agreement) held by the Investor; and
WHEREAS, the Corporation has agreed to provide the Investor with certain
registration rights in respect of the Shares.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the meanings ascribed to them in this Section 1:
"Agreement" has the meaning set forth in the preamble hereof.
"Common Stock" has the meaning set forth in the preamble hereof.
"Corporation" has the meaning set forth in the preamble hereof.
"Demand Shares" means shares of the Corporation's Common Stock held by or
issuable to Mid Market Equity Partners II, L.P. as of the date hereof.
"Investor" has the meaning set forth in the preamble hereof.
"Primary Shares" means at any time the authorized but unissued shares of
the Corporation's Common Stock.
"Register," "Registered" and "Registration" refer to a registration
effected by preparing and filing a Registration Statement and the declaration or
ordering of the effectiveness of such Registration Statement.
"Registrable Shares" means all Shares (including, without limitation, any
proportional adjustment of the Shares prior to any Registration should the
Corporation combine its Common Stock by means of any future stock splits, stock
combinations, or similar transactions affecting the Common Stock); provided,
however, that Registrable Shares shall not include those Shares 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 SB-1, SB-2
or S-3, or any successor form thereto, in compliance with the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" has the meaning set forth in the preamble hereof.
2. Piggyback Registration Rights.
(a) Notice of Piggyback Registration and Inclusion of Registrable Shares.
Subject to the terms of this Agreement, if the Corporation at any time proposes
for any reason to Register any shares of its Common Stock (either for its own
account or the account of a security holder) on a form that would be suitable
for a Registration involving solely Registrable Shares (except with respect to
registrations on Form S-4 or Form S-8 promulgated under the Securities Act or
any successor forms thereto), the Corporation will (i) promptly give the
Investor written notice thereof (which shall include a list of the jurisdictions
in which the Corporation 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
of the Registrable Shares specified in a written request delivered to the
Corporation by any of the Investor within twenty (20) days after delivery of
such written notice from the Corporation.
(b) Notice of Underwriting in Piggyback Registration. If the Registration
of which the Corporation gives notice is for a Registered public offering
involving an underwriting, the Corporation shall so advise the Investor as a
part of the written notice given pursuant to Section 2(a) hereof. In such event,
the right of any such Investor to Registration shall be conditioned upon such
underwriting and the inclusion of such Investor's Registrable Shares in such
underwriting to the extent provided in this Section 2. The Investor proposing to
distribute their Registrable Shares through such underwriting shall (together
with the Corporation 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.
(c) Marketing Limitation in Piggyback Registration. In the event the
underwriter's representative advises, in writing, the Corporation and the
Investor seeking Registration of their Registrable Shares pursuant to this
2
Section 2 that market factors (including, without limitation, the aggregate
number of shares of the Corporation's 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 Shares to be underwritten, the underwriter's representative may, in the case
of any Registered public offering, exclude some or all Registrable Shares from
such Registration and underwriting in the manner set forth in Section 2(d)
hereof.
(d) Allocation of Shares in Piggyback Registration.
(i) In the event that the underwriter's representative limits the number of
shares to be included in a Registration pursuant to Section 2(c) hereof, and
such Registration is not a result of a demand made by the holders of Demand
Shares, the shares of the Corporation's capital stock (other than Registrable
Shares) held by officers of the Corporation and its subsidiaries shall be
excluded from such Registration and underwriting to the extent required by such
limitation. If a limitation of the number of shares is still required after such
exclusion, the number of Shares that may be included in such Registration and
underwriting shall be included in the following order: (A) first, the Primary
Shares; and (B) second, the Demand Shares; and (C) third, all other Registrable
Shares (or, if necessary, such Registrable Shares pro rata among the holders
thereof (including the Investor) based upon the number of Registrable Shares
requested to be registered by each such holder).
(ii) In the event that the underwriter's representative limits the number
of shares to be included in a Registration pursuant to Section 2(c) hereof, and
such Registration is the result of a demand made by the holder of Demand Shares,
then the number of shares proposed to be included in such Registration shall be
included in the following order: (A) first, the Demand Shares; (B) second, the
Primary Shares; and (C) third, all other Registrable Shares (or, if necessary,
such Registrable Shares pro rata among the holders thereof based upon the number
of Registrable Shares requested to be registered by each such holder).
(e) Withdrawal in Piggyback Registration. If any holder of Registrable
Shares disapproves of the terms of any such underwriting, such person may elect
to withdraw therefrom by written notice to the Corporation and the underwriter's
representative delivered at least seven (7) days prior to the effective date of
the Registration Statement. Any Registrable Shares or other securities excluded
or withdrawn from such underwriting shall be withdrawn from such Registration.
3. Other Registration.
(a) Registration on Form S-3. Subject to Sections 4, 5 and 6 hereof, and
unless Rule 144 is available for effecting a proposed transfer of all of the
Registrable Shares of a holder, in the event that (a) the Corporation receives
from any holder a written request that the Corporation file a registration
statement on Form S-3 (or any successor form to Form S-3), or any similar
short-form registration statement, for a public offering of Registrable Shares,
the reasonably anticipated aggregate price to the public of which, net of
underwriting discounts and commissions, would exceed $1,000,000 and (b) the
3
Corporation is a registrant entitled to use Form S-3 to register the Registrable
Shares for such an offering, the Corporation will promptly give written notice
of the proposed registration to all other holders of Registrable Shares. As soon
as practicable thereafter, the Corporation will use its reasonable best efforts
to cause all Registrable Shares to be registered as may be so requested for the
offering on such form and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable Shares as are specified
in such request, together with all or such portion of the Registrable Shares of
any holder or holders joining in such request as are specified in a written
request received by the Corporation within twenty (20) days after receipt of
such written notice from the Corporation.
(b) Other Registration. Subject to Sections 4, 5 and 6 hereof, and unless
Rule 144 is available for effecting a proposed transfer of all of the Common
Shares of Investor, the Corporation shall undertake reasonable commercial
efforts to register the Common Stock of Investor for resale under the Securities
Act and to list the Common Stock on the primary securities exchange on which
Common Stock is traded at the time of such listing within twelve (12) months of
the date of this Agreement. The Corporation shall undertake to maintain the
registration of the Common Stock until such time as Investor may transfer the
Common Stock without restriction under Rule 144.
4. Expenses of Registration. All expenses incurred by the Corporation in
complying with Sections 2 and 3 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Corporation, fees and
expenses (including counsel fees) incurred in connection with complying with
state securities or "blue sky" laws, fees of the National Association of
Securities Dealers, Inc., fees of transfer agents and registrars, costs of
insurance and fees and disbursements of one counsel for the sellers of
Registrable Shares, but excluding any Selling Expenses, are called "Registration
Expenses". All underwriting discounts and selling commissions and seller counsel
fees applicable to the sale of Registrable Shares are called "Selling Expenses".
The Corporation will pay all Registration Expenses in connection with each
registration statement under Sections 2 and 3 hereof. All Selling Expenses in
connection with each registration statement under Sections 2 and 3 hereof shall
be borne by the participating sellers in proportion to the number of Registrable
Shares sold by each or as they may otherwise agree.
5. Termination of Registration Rights. The rights to cause the Corporation
to register securities and to receive notices granted under Sections 2 and 3
hereof shall terminate (a) with respect to each Investor, upon such Investor
holding less than one (1%) percent of the outstanding Common Stock of the
Corporation and (b) with respect to each Investor, if such Investor is eligible
to sell all of such Investor's Registrable Shares under Rule 144 of the
Securities Act within any three-month period without volume limitations, or
under Rule 144(k) thereunder.
6. Registration Procedures and Obligations. Whenever required under this
Agreement to effect the Registration of any Registrable Shares, the Corporation
shall, as expeditiously as reasonably possible:
4
(a) Prepare and file with the Securities and Exchange Commission a
Registration Statement with respect to such Registrable Shares and use its
reasonable best efforts to cause such Registration Statement to become
effective, and, upon the request of Investor of a majority of the Registrable
Shares registered thereunder, keep such Registration Statement effective for up
to one hundred twenty (120) days.
(b) Prepare and file with the Securities and Exchange Commission such
amendments and supplements to such Registration Statement and the prospectus
used in connection with such Registration Statement as may be necessary to
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement.
(c) Furnish to Investor such numbers of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Shares owned by them.
(d) Use its reasonable best efforts to register and qualify the securities
covered by such Registration Statement under such other securities or blue sky
laws of such jurisdictions as shall be reasonably requested by selling Investor;
provided, however, that the Corporation shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions; and
provided, further, that in the event any jurisdiction in which the securities
shall be qualified imposes a non-waivable requirement that expenses incurred in
connection with the qualification of the securities be borne by selling
Investor, such expenses shall be payable pro rata by selling Investor.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Investor
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Investor of Registrable Shares covered by such Registration
Statement at any time when a prospectus relating thereto is required to be
delivered under the Securities Act of the happening of any event as a result of
which the prospectus included in such Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing.
(g) Provide a transfer agent and registrar for all Registrable Shares
registered pursuant to such Registration Statement and a CUSIP number for all
such Registrable Shares, in each case not later than the effective date of such
Registration.
(h) Furnish, at the request of any Investor requesting Registration of
Registrable Shares pursuant to this Agreement, on the date that such Registrable
Shares are delivered for sale in connection with a Registration pursuant to this
5
Agreement, (i) an opinion, dated such date, of the counsel representing the
Corporation for the purposes of such Registration, in form and substance as is
customarily given to underwriters in an underwritten public offering, and (ii) a
letter dated such date, from the independent certified public accountants of the
Corporation, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters.
7. Miscellaneous Provisions.
7.1 Transferee Restrictions. Each Investor's rights hereunder may be
assigned only to a transferee acquiring in excess of 20,000 shares of Common
Stock. An assignee of any of the shares of Common Stock shall be bound by all of
the provisions of this Agreement applicable to the Investor from whom such
permitted assignee acquired such shares, whether or not such Investor continues
to be a Investor of the Corporation.
7.2 Notice. Any and all notices, designations, consents, offers,
acceptances, or any other communication provided for herein shall be given in
writing by registered or certified mail which shall be addressed:
(a) if to the Corporation, to:
Access Integrated Technologies, Inc.
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000
Telecopier: (000) 000-0000
Attention: A. Xxxx Xxxx, President (or to such other address as
may be designated by the Corporation in writing)
(b) with a copy (which shall not constitute notice) to:
Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx, Esq.
(c) If to the Investor, to the address set forth on the signature page
hereto.
Except as otherwise provided in this Agreement, each such notice shall be
deemed given at the time it shall be mailed in any post office or branch post
office regularly maintained by the United States Government.
7.3 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings, oral and written, between
the parties hereto with respect to the subject matter hereof.
6
7.4 Successors and Assigns. This Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and the respective successors and
permitted assigns of each of them, so long as they hold Shares.
7.5 Amendments; Waiver. This Agreement may be amended only upon the prior
written consent of the Corporation and the Investor.
7.6 Applicable Law. This Agreement and the legal relations among the
parties hereto shall be governed by, and construed in accordance with, the laws
of the State of New York applicable to contracts made and to be wholly performed
therein.
7.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
7.8 Severability. If any provision or part thereof contained in this
Agreement is declared invalid by any court of competent jurisdiction or a
government agency having jurisdiction, such declaration shall not affect the
remainder of the provision or the other provisions and each shall remain in full
force and effect.
7.9 Headings. The headings in this Agreement are for reference purposes
only and shall not in any way affect or limit the meaning or interpretation of
this Agreement.
[SIGNATURE PAGE TO FOLLOW]
7
IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement on the date first above written.
ACCESS INTEGRATED TECHNOLOGIES, INC.
By: _______________________________
Name: A. Xxxx Xxxx
Title: President
__________________________________
Name: _________________
Investor's address for notice under Section 7.2:
_____________________________________
_____________________________________
_____________________________________
