EXHIBIT 10.3
AMENDED AND RESTATED
DIGITAL CINEMA FRAMEWORK AGREEMENT
AMENDED AND RESTATED DIGITAL CINEMA FRAMEWORK AGREEMENT, dated as of
September 30, 2005 (this "Agreement"), by and among ACCESS INTEGRATED
TECHNOLOGY, INC., a Delaware corporation ("AIX"), ACCESS DIGITAL MEDIA, INC., a
Delaware corporation ("ADM"), CHRISTIE/AIX, INC., a Delaware corporation
("Christie/AIX"), and CHRISTIE DIGITAL SYSTEMS USA, INC., a California
corporation ("Christie").
W I T N E S S E T H :
WHEREAS, ADM is a wholly-owned subsidiary of AIX, and Christie/AIX is a
wholly-owned subsidiary of ADM;
WHEREAS, Christie is a leading provider of digital cinema projection
systems and related services;
WHEREAS, the parties desire to implement a program for the deployment of
digital cinema projection systems incorporating certain AIX technology, under
which:
(a) Christie/AIX would enter into distributor agreements ("Distributor
Agreements") with film distributors ("Distributors"), which Distributor
Agreements would provide, inter alia, for the payment of virtual print fees for
the booking of digital titles to cinema auditoriums equipped with Digital
Systems (as defined below);
(b) Christie/AIX would enter into license agreements (or in lieu thereof
such other form of agreement as the parties may determine to be suitable)
("Exhibitor License Agreements") with one or more film exhibitors
("Exhibitors"), which Exhibitor License Agreements would provide, inter alia,
for the license and deployment of Digital Systems to the Exhibitor, the right to
install a satellite dish on the roof of each cineplex where Digital Systems are
deployed and a requirement that the Exhibitor acquire a Central Server (as
defined below) as part of each Digital System deployed to the Exhibitor;
(c) Christie would enter into service contracts ("Digital Cinema Service
Contracts") with Exhibitors, under which Christie would provide to Exhibitors
installation, maintenance and support services for Digital Systems deployed
pursuant to the Exhibitor License Agreements;
(d) Christie and Christie/AIX would enter into a supply agreement (the
"Supply Agreement"), under which Christie would supply Digital Systems to
Christie/AIX for license and deployment of such Digital Systems in accordance
with the terms of the Exhibitor License Agreements; and
(e) Christie/AIX would seek to raise at least $15,000,000 in equity
financing to fund the purchase from Christie of the first 200 Digital Cinema
Projection Systems (as defined below) and associated Central Servers to be
deployed under Exhibitor License Agreements, and would seek to arrange
additional equity and/or debt financing to finance the purchase from Christie of
up to an additional 3800 Digital Cinema Projection Systems and associated
Central Servers for deployment under the Exhibitor License Agreements.
WHEREAS, the parties have previously executed a Digital Cinema Framework
Agreement dated as of June 21, 2005, as amended (the "Prior Agreement"),
WHEREAS, the parties desire to amend and restate the Prior Agreement to
read in its entirety as set forth herein,
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants hereinafter contained, the parties hereto agree that the Prior
Agreement is hereby amended and restated to read in its entirety as set forth
herein:
ARTICLE I
TERM
Section 1.01. TERM. Unless terminated earlier in accordance with the
provisions of this Agreement, the term of this Agreement shall commence on the
date of this Agreement and shall continue until December 31, 2018, and
thereafter shall be automatically extended for additional one year periods
unless either party gives to the other party written notice of termination, with
or without cause, at least thirty (30) days prior to the end of the original
term or any one-year extension period.
ARTICLE II
DISTRIBUTOR TERM SHEETS AND DISTRIBUTOR AGREEMENTS
Section 2.01. DISTRIBUTOR TERM SHEETS. Prior to the date of this
Agreement, Christie has executed a non-binding term sheet or letter of intent
with each of Disney, Fox and Universal. For a reasonable period of time after
the execution of this Agreement, Christie will use commercially reasonable
efforts to negotiate and sign non-binding term sheets or letters of intent or
other equivalents ("Term Sheets"), on the most favorable terms possible, with
each of Paramount, Sony Pictures Entertainment and Warner Brothers (together
with Disney, Fox and Universal, the "Major Film Distributors"), and such other
Distributors as the parties consider appropriate, regarding the payment of
virtual print fees in connection with the booking of digital titles to cinema
auditoriums equipped with Digital Systems. Christie and Christie/AIX will work
closely together on all matters relating to the negotiation and execution of
each Term Sheet, and Christie and Christie/AIX will promptly inform each other
of any material changes or developments relating to the negotiation and
execution of each Term Sheet.
Section 2.02 DISTRIBUTOR AGREEMENTS. Christie has assigned to Christie/AIX
the Term Sheets executed between Christie and each of Disney, Fox and Universal,
and Christie/AIX will use commercially reasonable efforts to negotiate and
execute a Distributor Agreement with each Distributor which is a party to such
assigned Term Sheets, based on the relevant Term Sheet. When any Term Sheet is
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hereafter executed between Christie and a Distributor, then, upon the written
approval of Christie/AIX (which approval will not be unreasonably withheld or
delayed), Christie will assign such Term Sheet to Christie/AIX and Christie/AIX
will use commercially reasonable efforts to negotiate and execute a Distributor
Agreement with such Distributor based on such Term Sheet. The parties may at any
time choose to proceed directly to negotiation of a Distributor Agreement
between Christie/AIX and a Distributor without the execution of a Term Sheet
between Christie and such Distributor. Christie/AIX and Christie will work
closely together on all matters relating to the negotiation and execution of
each Distributor Agreement, and Christie/AIX and Christie will promptly inform
each other of any material changes or developments relating to the negotiation
and execution of each Term Sheet.
ARTICLE III
EXHIBITOR LICENSE AGREEMENTS
Section 3.01 EXHIBITOR LICENSE AGREEMENTS. Christie/AIX will use
commercially reasonable efforts to negotiate and execute an Exhibitor License
Agreement with appropriate Exhibitors, including the owner of the Citywalk
theaters at the Universal theme parks in Orlando, Florida and Los Angeles,
California. Christie/AIX and Christie will work closely together on all matters
relating to the negotiation and execution of each such Exhibitor License
Agreement, and Christie/AIX and Christie will promptly inform each other of any
material changes or developments relating to the negotiation and execution of
each such Exhibitor License Agreement.
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ARTICLE IV
SUPPLY OF DIGITAL SYSTEMS BY CHRISTIE
Section 4.01. DEFINITIONS. As used in this Agreement:
(a) "DIGITAL CINEMA PROJECTION SYSTEM" means a digital cinema projection
system consisting of a DLP Cinema(TM) 2k projector, capable of both 2-D and 3-D
display, a digital cinema server, and such other system components and software
as are required to meet the applicable technical specifications and any
applicable system upgrade requirements specified in the Distributor Agreements
and the Exhibitor License Agreements.
(b) "CENTRAL SERVER" means, collectively, a central library server, with
AIX's Theatre Command Center software (including MySQL database software)
installed, connecting all Digital Cinema Projection Systems within a theatre
complex, together with a storage array, computer rack, Uninterrupted Power
Source (UPS), main switch and patch panel.
(c) "DIGITAL SYSTEM" means a system consisting of one or more Digital
Cinema Projection Systems and one Central Server.
Section 4.02 SUPPLY OF DIGITAL SYSTEMS. Christie and Christie/AIX have
executed a Digital System Supply Agreement dated as of August 5, 2005.
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Concurrently with the execution of this Agreement, Christie and Christie/AIX
have executed an Amended and Restated Digital System Supply Agreement.
ARTICLE V
LICENSE OF ACCESS SOFTWARE
Section 5.01 OEM LICENSE AGREEMENT. Pursuant to this Agreement, Christie
and ADM have executed an OEM License Agreement for the grant of a license by ADM
to Christie to install AIX's Theatre Command Center Software to Central Servers
and distribute AIX's Theatre Command Center Software as installed by Christie to
such Central Servers.
ARTICLE VI
DIGITAL SYSTEM SUPPORT SERVICES
Section 6.01 SERVICE CONTRACTS WITH EXHIBITORS. In connection with the
execution of any Exhibitor License Agreement between Christie/AIX and any
Exhibitor, Christie will use commercially reasonable efforts to concurrently
execute a Digital Cinema Service Contract with such Exhibitor to be coterminous
with the initial term of the Exhibitor License Agreement between Christie/AIX
and such Exhibitor. Christie and Christie/AIX will work closely together on all
matters relating to the negotiation and execution of each Digital Cinema Service
Contract, and Christie and Christie/AIX will promptly inform each other of any
material changes or developments relating to the negotiation and execution of
each such Digital Cinema Service Contract.
Section 6.02 SCOPE OF SERVICES. Christie will use commercially reasonable
efforts to include in any Digital Cinema Service Contract provisions:
(a) for payment to Christie of an up front fee in an amount not to
exceed $11,000 for each Digital Cinema Projection System installed, and annual
per screen service fees, adjusted in accordance with any increase in the CPI
index;
(b) for at least 19/7 technical support by telephone, for twice
yearly preventative maintenance services, for prompt emergency repair services,
and for monitoring services; and
(c) for assignability to an alternate service provider in the event
Christie is required to assign any Digital Cinema Service Contract to an
alternate service provider as may be required under such terms as may be agreed
to by Christie in connection with any debt financing made available to
Christie/AIX.
Section 6.03 DELIVERY SERVICES. Christie will cooperate with AIX and
Christie/AIX in connection with the efforts of AIX and Christie/AIX to become
the exclusive provider of digital delivery services (whether through satellite,
fiber, hard-drive or other means) to any Distributors or Exhibitors requiring
such services.
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ARTICLE VII
SERVICES PROVIDED BY AIX TO CHRISTIE/AIX
Section 7.01. BACK OFFICE SERVICES. AIX will provide Christie/AIX with
back office services, including with respect to accounting and personnel. AIX
will charge Christie/AIX customary fees for providing such services, not to
exceed a budgeted amount as agreed to between AIX and Christie from time to time
and in any event such budgeted amount shall be agreed upon no less frequently
than annually.
ARTICLE VIII
FINANCING
Section 8.01. INITIAL EQUITY FINANCING. Christie/AIX will use commercially
reasonable efforts to obtain, on terms and conditions acceptable to Christie/AIX
in its sole discretion, at least $15,000,000 in equity financing to fund the
purchase from Christie and deployment of the first 200 Digital Cinema Projection
Systems and associated Central Servers to be deployed under Exhibitor License
Agreements. Christie/AIX has obtained equity financing in a first tranche of
$7,500,000 (the "First Tranche") and will seek to obtain equity financing in a
second tranche of $7,500,000 (the "Second Tranche") for a total of $15,000,000.
Section 8.02 DEBT AND/OR ADDITIONAL EQUITY FINANCING. Christie/AIX will
use commercially reasonable efforts to arrange or obtain, on terms and
conditions acceptable to Christie/AIX in its sole discretion, debt financing
and/or additional equity financing to fund the purchase from Christie and
deployment of up to an additional 3800 Digital Cinema Projection Systems and
associated Central Servers to be deployed under Exhibitor License Agreements.
Section 8.03 COOPERATION. Christie will use commercially reasonable
efforts to assist AIX and/or Christie/AIX in securing the equity and debt
financing contemplated by this Article VIII. The parties hereto will reasonably
cooperate to seek to accommodate reasonable requests of funding sources with
respect to any such equity or debt financing, including amendment of this
Agreement or agreements entered into pursuant to this Agreement in respects
which do not materially affect the economic benefits accruing to the parties
under this Agreement or agreements entered into pursuant to this Agreement.
Section 8.04 POSSIBLE EQUITY PARTICIPATION BY CHRISTIE IN CHRISTIE/AIX.
Christie has elected not to participate in the funding of the First Tranche. In
connection with the funding of the Second Tranche, Christie shall have the right
to acquire shares of Christie/AIX in exchange for an equity investment of up to
$2,000,000 on the same terms and conditions as are applicable to other equity
participants in the Second Tranche. Equity participation in the Second Tranche
and in any future tranches of equity investment by AccessIT or its Affiliates,
and any equity participation by Christie in the Second Tranche, will be at the
same price per share as equity participation in the First Tranche, i.e. for a
purchase price of $75000 per share. Christie/AIX shall give Christie reasonable
prior notice of the closing date of, and the material terms and conditions of,
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the Second Tranche, and shall specify a reasonable period of time within which
Christie shall be required to respond in order to be able to exercise its right
to participate in the Second Tranche.
ARTICLE IX
JOINT MARKETING
Section 9.02. MARKETING AND PROMOTION. Each of Christie/AIX and Christie
agree to cross-market each other's products and services and to undertake such
additional promotional activities as may be agreed to between the parties from
time to time; PROVIDED, HOWEVER, that neither Christie/AIX nor Christie shall be
obligated to market or promote a product or service of the other party if such
product or service competes with any of its own products or services.
ARTICLE X
CASH FLOW SHARING
Section 10.01. CASH FLOW SHARE. If Christie/AIX installs more than 200
Digital Cinema Projection Systems (with associated Central Servers), any
positive cash flow generated by Christie/AIX after deducting any and all of its
costs and expenses, including, without limitation, interest expenses, taxes,
debt service and any and all amounts payable by Christie/AIX to AIX and/or
Christie for products and services (including administrative charges) provided
hereunder or under the agreements contemplated hereby (the "Cash Flow"), shall
be applied as follows:
(a) first, until all interest, principal and other amounts in respect of
any debt financing have been paid in full, such amounts up to 100% of Cash Flow
as are required to satisfy current debt service, debt repayment and cash
retention requirements relating to such debt financing;
(b) then, to the extent of Cash Flow remaining after application of
paragraph (a) and until all applications under this paragraph (b) have been made
in full:
(i) first, such amounts up to 100% of Cash Flow as are required to
pay or reserve for payment to the equityholders of Christie/AIX (the
"Equityholders") a cumulative dividend (whether or not distributed) equal to 25%
per annum with respect to the outstanding balance of the equity funding made
available by the Equityholders to Christie/AIX; and
(ii) second, such amounts up to 100% of Cash Flow as are required to
pay or reserve for payment to the Equityholders dividends (whether or not
distributed) in a total aggregate amount equal to the equity funding amount made
available by the Equityholders to Christie/AIX; and
(c) then, after all interest, principal and other amounts in respect of any
debt financing and all amounts required to be paid or reserved under paragraph
(b) have been paid or reserved in full and until the end of the calendar year in
which the last payment of virtual print fees is made under any of the
Distributor Agreements, fifty percent (50%) of the Cash Flow shall be allocated
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to and paided to Christie and fifty percent (50%) of the Cash Flow shall be
allocated to Christie/AIX, which allocation and disposition shall be made as
often as reasonably practical, but not less than annually.
Section 10.02. DISPUTED PAYMENTS; ARBITRATION. If a dispute arises in good
faith with respect to any amount due under this Agreement or any other agreement
executed between any of the parties hereto as contemplated hereby, the payor
shall pay any undisputed amount, if any, when and as due, and shall promptly pay
such further amount as may be required upon resolution of the dispute. If any
such dispute cannot be resolved by amicable discussion between the parties, such
dispute shall be arbitrated in accordance with the rules, procedures and
practices of the American Arbitration Association before a single arbitrator
located in New York City and agreed to by the parties.
Section 10.03. CURRENCY. All invoices hereunder shall be rendered, and all
payments hereunder shall be made, in U.S. Dollars.
Section 10.04 NO EQUITY INTEREST OR PARTNERSHIP. Nothing contained in this
Article X does give or shall be construed as giving to Christie any equity
interest in Christie/AIX, or creates or shall be construed as creating any
partnership or joint venture between Christie and Christie/AIX.
ARTICLE XI
ADM CINEMA CORPORATION ROLL-IN
Section 11.01 ADM CINEMA CORPORATION ROLL-IN. ADM Cinema Corporation, a
Delaware corporation and wholly owned subsidiary of AIX ("ADM Cinema")
previously purchased from Christie, and is the owner of, five (5) digital cinema
projectors and related equipment (the "ADM Cinema Units") currently located at
the Pavillion Movie Theater, 000 Xxxxxxxx Xxxx Xxxx, Xxxxxxxx, XX 00000. ADM
Cinema will promptly pay to Christie the unpaid purchase price of the ADM Cinema
Units. Christie and Christie/AIX agree that, in connection with the deployment
of Digital Systems by Christie/AIX, Christie and Christie/AIX will, upon the
execution of an Exhibitor License Agreement between Christie/AIX and ADM Cinema
and a Digital Cinema Service Agreement between Christie and ADM Cinema with
respect to the ADM Cinema Units, proceed as follows:
(a) Christie will invoice to ADM Cinema an $8,000 per projector
installation charge payable by ADM Cinema to Christie to be provided for in the
Digital Cinema Service Agreement to be entered into between ADM Cinema and
Christie, and will credit against such amount the installation charges
previously paid by ADM Cinema to Christie for installation of the ADM Cinema
Units;
(b) Christie will refund to ADM Cinema the full purchase price of the ADM
Cinema Units as paid by ADM Cinema to Christie, less the outstanding invoice
amount after credit under the invoice issued by Christie under paragraph (a)
above, which invoice shall thereupon be satisfied;
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(c) Christie will invoice Christie/AIX in the amount of $72,722 per unit
for each of the ADM Cinema Units; and
(d) Christie/AIX will pay the amount of such invoice to Christie.
Christie and Christie/AIX further agree that the ADM Cinema Units will be deemed
included as 5 of the last 50 of the initial 200 Digital Cinema Projection
Systems to be purchased by Christie/AIX from Christie.
ARTICLE XII
USE OF CHRISTIE NAME
Section 12.01 USE OF CHRISTIE NAME. AIX and Christie/AIX acknowledge that
"Christie" is a registered trademark of Christie. Christie/AIX shall have the
right to use the name "Christie" in its corporate name until such time as
Christie may require discontinuation of such use by written notice thereof given
by Christie to Christie/AIX. Upon any such notice, Christie/AIX shall, as
promptly as reasonably possible, change its corporate name to remove "Christie"
therefrom and discontinue use of the Christie name in connection with its
business. For so long as the name "Christie" is included in the corporate name
of Christie/AIX, Christie/AIX shall refrain from any action which may be
injurious to the good reputation of Christie.
ARTICLE XIII
TERMINATION
Section 13.01. TERMINATION FOR CHRISTIE BREACH. AIX or Christie/AIX may
terminate this Agreement by written notice to Christie in the event Christie
materially breaches or defaults in its performance under this Agreement or under
the Amended and Restated Supply Agreement between Christie and Christie/AIX
executed concurrently herewith, and fails to cure such breach within thirty (30)
days after notice of such breach by the notifying party.
Section 13.02 TERMINATION FOR AIX OR CHRISTIE/AIX BREACH. Christie may
terminate this Agreement by written notice to AIX in the event AIX or
Christie/AIX materially breaches or defaults in its performance under this
Agreement or in the event Christie/AIX materially breaches or defaults in its
performance under the Amended and Restated Supply Agreement between Christie and
Christie/AIX executed concurrently herewith, and fails to cure such breach
within thirty (30) days after notice of such breach by the notifying party.
Section 13.03 UNAVAILABILITY OF FINANCING. Any party may terminate this
Agreement by written notice to the other parties to this Agreement in the event
that the continued unavailability of equity or debt financing prevents or
interrupts the deployment of Digital Systems for a continuous period of more
than two (2) months
Section 13.04 OCCURRENCE OF CERTAIN EVENTS. Any party may terminate this
Agreement by written notice to the other parties to this Agreement in the event
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of the filing of any petition under any bankruptcy law by or against any other
party, the admission in writing by any other party of its inability to pay its
debts when and as due, the making of any assignment for the benefit of creditors
by any other party, the appointment of a receiver for any or all of the assets
of any other party, the cessation of any other party's business, or the
dissolution of any other party.
ARTICLE XIV
EFFECT OF TERMINATION
Section 14.01. GENERAL. In the event of the expiration or any termination
of this Agreement, all rights and obligations of the respective parties shall
terminate as of the effective date of such expiration or termination, except
that (i) such expiration or termination shall not constitute a waiver of any
rights that any party may have by reason of a breach of this Agreement, (ii)
such expiration or termination shall not constitute a waiver of any right to
receive payments that are due and owing pursuant to this Agreement, including,
without limitation, any payments required to be made by any Distributor or
Exhibitor utilizing the Digital Systems paid for by Christie/AIX, which payments
shall continue to be made to Christie/AIX, and (iii) the provisions of Articles
VIII and XVI shall continue in full force and effect in accordance with their
respective terms.
ARTICLE XV
WARRANTY DISCLAIMER
Section 15.01. DISCLAIMER OF GENERAL WARRANTY BY AIX AND CHRISTIE/AIX.
EACH OF AIX AND CHRISTIE/AIX MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, CONCERNING THE PERFORMANCE OF THEIR RESPECTIVE OBLIGATIONS UNDER THIS
AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY OR OTHERWISE. IN NO EVENT SHALL AIX OR CHRISTIE/AIX BE LIABLE
FOR ANY SPECIAL, INCIDENTIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT
LIMITATION, LOSS OF PROFITS, REVENUES OR DATA WHETHER BASED ON BREACH OF
CONTRACT, TORT OR OTHERWISE, WHETHER OR NOT ANY OTHER PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY OF CHRISTIE/AIX FOR DAMAGES OR
ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY,
IS LIMITED TO, AND WILL NOT EXCEED, ANY DIRECT DAMAGES.
Section 15.02. DISCLAIMER OF GENERAL WARRANTY BY CHRISTIE. CHRISTIE MAKES
NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE PERFORMANCE OF
ITS OBLIGATIONS HEREUNDER, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE. IN NO EVENT SHALL CHRISTIE BE
LIABLE FOR ANY SPECIAL, INCIDENTIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT
LIMITATION, LOSS OF PROFITS, REVENUES OR DATA WHETHER BASED ON BREACH OF
CONTRACT, TORT OR OTHERWISE, WHETHER OR NOT ANY OTHER PARTY HAS BEEN ADVISED OF
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THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY OF CHRISTIE FOR DAMAGES OR
ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY,
IS LIMITED TO, AND WILL NOT EXCEED, ANY DIRECT DAMAGES.
ARTICLE XVI
CONFIDENTIALITY
Section 16.01. CONFIDENTIALITY. Except as may otherwise be required by
applicable law, rule and regulation, including without limitation the federal
securities laws and the rules and regulations promulgated thereunder, each party
agrees that for the longest period permitted by applicable law, it shall hold in
strictest confidence and, without the prior written approval of the other
parties hereto, not use for its own benefit or disclose to any person, firm or
corporation (other than as required by applicable law) any confidential
proprietary information concerning the business and affairs of the other parties
hereto; PROVIDED, HOWEVER, that the foregoing limitations and restrictions shall
not apply to information that (a) is or becomes generally available to the
public other than as a result of a disclosure by the directors, officers,
shareholders, partners, affiliates, employees, agents or advisors of any party,
or (b) is or becomes available to one of the parties on a non-confidential basis
from a source other than one of the other parties hereto or any of its advisors,
agents or affiliates, provided that such source is not known by such other
party, as the case may be, to be bound by a confidentiality agreement with or
other obligation of secrecy to the other parties hereto. Each of the parties
recognize that the absence of a time limitation in this Section 16.01 is
reasonable and properly required for the protection of the other parties hereto
and in the event that the absence of such limitation is deemed to be
unreasonable by a court of competent jurisdiction, each party agrees submit to
the imposition of such limitation(s) as said court shall deem reasonable.
Section 16.02. EQUITABLE REMEDIES Each party specifically recognizes that
any breach of Section 16.01 will cause irreparable injury to the other parties
hereto and that actual damages may be difficult to ascertain, and in any event,
may be inadequate. Accordingly (and without limiting the availability of legal
or equitable, including injunctive, remedies under any other provisions of this
Agreement), each party agrees that in the event of any such breach, the other
parties hereto shall be entitled to injunctive relief in addition to such other
legal and equitable remedies that may be available. In addition, each party
agrees that the provisions of Section 16.01 shall be considered separate and
apart from the remaining provisions of this Agreement and shall be enforced as
such.
ARTICLE XVII
MISCELLANEOUS
Section 17.01. FURTHER ASSURANCES. Each party will, at any time and from
time to time after the date hereof, upon the request of any other party, do,
execute, acknowledge and deliver, or shall cause to be done, executed,
acknowledged and delivered, all such other instruments as may be reasonably
required in connection with the performance of this Agreement and each shall
take all such further actions as may be reasonably required to carry out or
further effect the transactions contemplated by this Agreement. Upon request,
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each party will cooperate, and will its best efforts to have its officers,
directors and other employees cooperate, at the requesting party's expense,
during and after the term of this Agreement in furnishing information, evidence,
testimony and other assistance in connection with any actions, proceedings,
arrangements or disputes involving any of the other parties hereto.
Section 17.02. NOTICES. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed given or delivered
(a) when delivered personally or by private courier, (b) when actually delivered
by registered or certified United States mail, return receipt requested and
postage prepaid or (c) when sent by telecopy (provided, that, it is
simultaneously electronically confirmed), addressed as follows:
If to Xxxxxxxx Xxxxxxxx Digital Systems USA, Inc.
00000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: President
If to Christie/AIX or AIX:
c/o Access Integrated Technologies, Inc.
00 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Esq.
with a copy to:
Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxxxx, Esq.
or to such other address as such party may indicate by a notice delivered to the
other party hereto pursuant to the terms hereof.
Section 17.03. NO MODIFICATION EXCEPT IN WRITING. This Agreement shall not
be changed, modified, or amended except by a writing signed by the party to be
charged and this Agreement may not be discharged except by performance in
accordance with its terms or by a writing signed by the party to be charged.
Section 17.04. ENTIRE AGREEMENT. This Agreement and all other documents to
be delivered in connection herewith set forth the entire agreement and
understanding between the parties as to the subject matter hereof and merges and
supersedes all prior discussions, agreements and understandings of every kind
and nature between them.
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Section 17.04. SEVERABILITY. If any provision of this Agreement or the
application of any provision hereof to any person or circumstances is held
invalid, the remainder of this Agreement and the application of such provision
to other persons or circumstances shall not be affected unless the provision
held invalid shall substantially impair the benefits of the remaining portions
of this Agreement.
Section 17.05. ASSIGNMENT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned by Christie without the
prior written consent of Christie/AIX. AIX and/or Christie/AIX may assign this
Agreement, in whole or in part, to any Affiliate of AIX or Christie/AIX or in
connection with a financing, special purpose entity, merger or consolidation of
AIX or Christie/AIX or a sale of all or substantially all of AIX or
Christie/AIX's business. Except as provided in the preceding sentence, this
Agreement may not be assigned by Christie/AIX without the prior written consent
of Christie. "Affiliate" as used in this Agreement shall mean any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such person.
Section 17.06. PUBLICITY; ANNOUNCEMENTS. Subject to applicable law,
Christie/AIX and Christie shall each be entitled to issue one or more press
releases relating to the subject matter of this Agreement and/or the
transactions contemplated herein; PROVIDED, HOWEVER, that prior to the issuance
of any such press release, the party not issuing such press release shall be
entitled to review and provide reasonable comments with respect to such press
release, but shall not otherwise be entitled to prevent the issuance thereof.
Section 17.07. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to the conflict of laws principles thereof. For purposes of this
Agreement, each party hereby irrevocably submits to the nonexclusive
jurisdiction of the courts of the State of New York, sitting in New York County,
and the courts of the United States for the Southern District of New York. Each
party irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding brought in any such court, any claim that any such suit,
action or proceeding brought in such a court has been brought in an inconvenient
forum and the right to object, with respect to any such suit, action or
proceeding brought in any such court, that such court does not have jurisdiction
over such party. In any such suit, action or proceeding, each party waives, to
the fullest extent it may effectively do so, personal service of any summons,
complaint or other process and agrees that the service thereof may be made by
certified or registered mail, addressed to such party at its address set forth
in Section 17.02. Each party agrees that a final non-appealable judgment in any
such suit, action or proceeding brought in such a court shall be conclusive and
binding.
Section 17.08. CAPTIONS. The captions appearing in this Agreement are
inserted only as a matter of convenience and for reference and in no way define,
limit or describe the scope and intent of this Agreement or any of the
provisions hereof.
Section 17.09. INTERPRETATION. All pronouns and any variations thereof
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shall be deemed to refer to the masculine, feminine, neuter, singular, or plural
as the identity of the person or persons referred to may require.
Section 17.10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
CHRISTIE/AIX, INC.
By /s/ A. Xxxx Xxxx
------------------------------
Name: A. Xxxx Xxxx
Title: CEO
ACCESS INTEGRATED TECHNOLOGIES, INC.
By /s/ A. Xxxx Xxxx
------------------------------
Name: A. Xxxx Xxxx
Title: President/CEO
ACCESS DIGITAL MEDIA, INC.
By /s/ A. Xxxx Xxxx
------------------------------
Name: A. Xxxx Xxxx
Title: CEO
CHRISTIE DIGITAL SYSTEMS USA, INC
By /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: President/COO
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