SECURITIES PURCHASE AGREEMENT among ACCESS INTEGRATED TECHNOLOGIES, INC. and THE PURCHASERS REFERRED TO HEREIN
SECURITIES
PURCHASE AGREEMENT
among
ACCESS
INTEGRATED TECHNOLOGIES, INC.
and
THE
PURCHASERS REFERRED TO HEREIN
TABLE
OF CONTENTS
Page
|
ARTICLE
I
|
DEFINITIONS
|
1
|
|
1.1
|
Definitions
|
1
|
|
ARTICLE
II
|
PURCHASE
AND SALE
|
4
|
|
2.1
|
Closing
|
4
|
|
2.2
|
Deliveries
|
4
|
|
2.3
|
Closing
Conditions
|
5
|
|
ARTICLE
III
|
REPRESENTATIONS
AND WARRANTIES
|
6
|
|
3.1
|
Representations
and Warranties of the Company
|
6
|
|
3.2
|
Representations
and Warranties of the Purchasers
|
16
|
|
ARTICLE
IV
|
OTHER
AGREEMENTS OF THE PARTIES
|
19
|
|
4.1
|
Transfer
Restrictions
|
19
|
|
4.2
|
Furnishing
of Information
|
20
|
|
4.3
|
Integration
|
20
|
|
4.4
|
Securities
Laws Disclosure; Publicity; Confidentiality
|
20
|
|
4.5
|
Form
D; Blue Sky Filings
|
21
|
|
4.6
|
Shareholder
Rights Plan
|
21
|
|
4.7
|
Non-Public
Information
|
21
|
|
4.8
|
Use
of Proceeds
|
21
|
|
4.9
|
Indemnification
of Purchasers
|
21
|
|
4.10
|
Reservation
of Common Stock
|
22
|
|
4.11
|
Listing
of Common Stock
|
23
|
|
4.12
|
Equal
Treatment of Purchasers
|
23
|
|
4.13
|
Short
Sales and Confidentiality After the Date Hereof
|
23
|
|
4.14
|
Reasonable
Best Efforts
|
24
|
|
4.15
|
Piggyback
Registrations.
|
24
|
|
4.16
|
Registration
Procedures.
|
25
|
|
4.17
|
Participation
in Registrations.
|
27
|
|
ARTICLE
V
|
MISCELLANEOUS
|
28
|
|
5.1
|
Termination
|
28
|
|
5.2
|
Fees
and Expenses
|
28
|
|
-i-
|
TABLE
OF CONTENTS
(continued)
Page
|
5.3
|
Entire
Agreement
|
28
|
|
5.4
|
Notices
|
28
|
|
5.5
|
Amendments;
Waivers
|
29
|
|
5.6
|
Headings
|
29
|
|
5.7
|
Successors
and Assigns
|
29
|
|
5.8
|
No
Third-Party Beneficiaries
|
29
|
|
5.9
|
Governing
Law
|
29
|
|
5.10
|
Survival
|
30
|
|
5.11
|
Execution
|
30
|
|
5.12
|
Severability
|
30
|
|
5.13
|
Rescission
and Withdrawal Right
|
30
|
|
5.14
|
Replacement
of Securities
|
31
|
|
5.15
|
Remedies
|
31
|
|
5.16
|
Payment
Set Aside
|
31
|
|
5.17
|
Independent
Nature of Purchasers’ Obligations and Rights
|
31
|
|
5.18
|
Liquidated
Damages
|
32
|
|
5.19
|
Construction
|
32
|
|
-ii-
|
This
Securities Purchase Agreement (this “Agreement”) is dated
as of February 9, 2009, among Access Integrated Technologies, Inc., a Delaware
corporation (the “Company”), and each
purchaser identified on the signature pages hereto (each, including its
successors and assigns, a “Purchaser” and
collectively the “Purchasers”).
“Action” shall have
the meaning ascribed to such term in Section 3.1(k).
“Affiliate” means any
Person that, directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with a Person as such terms are
used in and construed under Rule 144 under the Securities
Act. With respect to a Purchaser, any investment fund or managed
account that is managed on a discretionary basis by the same investment manager
as such Purchaser will be deemed to be an Affiliate of such
Purchaser.
“Certificate of
Designations” means the certificate of designations setting forth the
powers, preferences and rights, and the qualifications, limitations and
restrictions of the Series A Preferred Stock, in the form attached as Exhibit B
hereto.
“Closing” means the
closing of the purchase and sale of the Securities pursuant to
Section 2.1.
“Closing Date” means
the Trading Day when all of the Transaction Documents have been executed and
delivered by the applicable parties thereto, and all conditions
precedent
to (i) the Purchasers’ obligations to pay the Subscription Amount and
(ii) the Company’s obligations to deliver the Securities have been
satisfied or waived.
“Commission” means the
Securities and Exchange Commission.
“Common Stock” means
the Class A Common Stock of the Company, par value $0.001 per share, and any
other class of securities into which such securities may hereafter have been
reclassified or changed into.
“Common Stock
Equivalents” means any securities of the Company or the Subsidiaries
which would entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, rights, options,
warrants or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common
Stock.
“Company Counsel”
means Xxxxxx Xxxx & Xxxxxx LLP.
“Disclosure Schedules”
means the Disclosure Schedules of the Company delivered concurrently
herewith.
“Evaluation Date”
shall have the meaning ascribed to such term in
Section 3.1(s).
“Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“GAAP” shall have the
meaning ascribed to such term in Section 3.1(h).
“Intellectual Property
Rights” shall have the meaning ascribed to such term in
Section 3.1(p).
“Liens” means a lien,
charge, security interest, encumbrance, right of first refusal, or preemptive
right.
“Majority Holders”
means the holder(s) of a majority of the Shares.
“Material Adverse
Effect” shall have the meaning assigned to such term in
Section 3.1(b).
“Material Permits”
shall have the meaning ascribed to such term in
Section 3.1(n).
“Person” means an
individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“Proceeding” means an
action, claim, suit, investigation or proceeding (including, without limitation,
an investigation or partial proceeding, such as a deposition), whether commenced
or threatened.
“Purchaser Party”
shall have the meaning ascribed to such term in Section 4.9.
2
“Required Approvals”
shall have the meaning ascribed to such term in
Section 3.1(e).
“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.
“SEC Reports” shall
have the meaning ascribed to such term in Section 3.1(h).
“Securities” means the
Shares, the Warrants and the Warrant Shares.
“Securities Act” means
the Securities Act of 1933, as amended.
“Series A Preferred
Stock” means the Series A Callable 10% Non-Voting Cumulative Preferred
Stock of the Corporation, represented by certificates in the form attached as
Exhibit C
hereto.
“Shares” means the
shares of Series A Preferred Stock issued to each Purchaser pursuant to this
Agreement.
“Short Sales” shall
include all “short
sales” as defined in Rule 200 of Regulation SHO under the Exchange
Act.
“Subscription Amount”
means, as to each Purchaser, the aggregate amount to be paid for the Securities
purchased hereunder as specified on such Purchaser’s signature page, in United
States Dollars and in immediately available funds.
“Subsidiary” means any
material subsidiary of the Company as set forth on Schedule 3.1(a).
“Trading Day” means a
day on which the Common Stock is traded on a Trading Market.
“Trading Market” means
the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the American Stock Exchange, the
New York Stock Exchange, the Nasdaq Global Market, the Nasdaq Capital
Market, the OTC Bulletin Board, or any other recognized exchange or automated
quotation system.
“Transaction
Documents” means this Agreement, the Warrants and any other documents or
agreements executed in connection with the transactions contemplated
hereunder.
“Warrant” means a
warrant to purchase shares of Common Stock, such that each Purchaser shall
receive warrants to purchase 150,000 shares of Common Stock for each share of
Series A Preferred Stock being purchased by that Purchaser, and such warrants
shall have the terms and conditions set forth in Exhibit D attached
hereto.
3
“Warrant Shares” means
the shares of Common Stock issuable upon exercise of the Warrants.
(a) On
the Closing Date, the Company shall deliver or cause to be delivered to each
Purchaser the following:
(i) this
Agreement duly executed by the Company;
(ii) one
or more stock certificates, substantially in the form of Exhibit C attached
hereto, representing the Shares being purchased by such Purchaser, and
registered in the name of such Purchaser, as set forth on each Purchaser’s
signature page;
(iii) Warrants
to purchase such number of shares of Common Stock as is set forth on each
Purchaser’s signature page;
(iv) a
secretary’s certificate, dated as of the Closing Date, certifying as to (A) the
incorporation and good standing of the Company in the State of Delaware based
upon a certificate issued by the Secretary of State of the State of Delaware as
of a date within thirty (30) days of the Closing Date, (B) the Resolutions
(as defined in Section 2.3(b)(iv) below), (C) the Fourth Amended and
Restated Certificate of Incorporation of the Company, as amended, certified as
of a date within ten (10) days of the Closing Date, including a Certificate of
Designations, substantially in the form of Exhibit B attached
hereto, and (D) the bylaws of the Company, each as in effect as of the
Closing Date;
(v) such
other documents relating to the transactions contemplated by the Transaction
Documents as such Purchaser or its counsel may reasonably request.
4
(b)
On the
Closing Date, each Purchaser (or, in the case of (iii), the parties thereto)
shall deliver or cause to be delivered to the Company the
following:
(i) this
Agreement duly executed by such Purchaser;
(ii) such
Purchaser’s Subscription Amount by wire transfer to the account as specified in
writing by the Company;
(iii) such
other documents relating to the transactions contemplated by the Transaction
Documents as the Company or its counsel may reasonably request.
(a) The
obligations of the Company hereunder in connection with the Closing are subject
to the following conditions being met:
(i) the
accuracy in all material respects when made and on the Closing Date of the
representations and warranties of the Purchasers contained herein;
(ii) all
obligations, covenants and agreements of the Purchasers required to be performed
at or prior to the Closing Date shall have been performed; and
(iii) the
delivery by the Purchasers of the items set forth in Section 2.2(b) of this
Agreement.
(b) The
respective obligations of the Purchasers hereunder in connection with the
Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects on the Closing Date of the representations and
warranties of the Company contained herein;
(ii) all
obligations, covenants and agreements of the Company required to be performed at
or prior to the Closing Date shall have been performed;
(iii) the
delivery by the Company of the items set forth in Section 2.2(a) of this
Agreement;
(iv) The
board of directors of the Company shall have approved the transactions
contemplated hereby and shall have adopted resolutions consistent with Section
3.1(c) below and in a form reasonably acceptable to such Purchaser (the “Resolutions”);
(v) the
Certificate of Designations shall have been filed with the Secretary of State of
the State of Delaware;
5
(vi)
there
shall have been no Material Adverse Effect with respect to the Company since the
date hereof.
6
and, when
delivered in accordance with the terms hereof and thereof, will constitute the
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally and (ii) as limited by
laws relating to the availability of specific performance, injunctive relief or
other equitable remedies.
7
capital
stock since its most recently filed periodic report under the Exchange Act,
other than pursuant to the exercise of employee stock options under the
Company’s stock option plans, the issuance of shares of Common Stock to
employees pursuant to the Company’s employee stock purchase plan and pursuant to
the conversion or exercise of outstanding Common Stock
Equivalents. No Person has any right of first refusal, preemptive
right, right of participation, or any similar right to participate in the
transactions contemplated by the Transaction Documents. Except as set
forth on Schedule 3.1(g),
except as a result of the purchase and sale of the Securities, there are no
outstanding options, warrants, script rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities, rights or
obligations convertible into or exercisable or exchangeable for, or giving any
Person any right to subscribe for or acquire, any shares of Common Stock, or
contracts, commitments, understandings or arrangements by which the Company or
any Subsidiary is or may become bound to issue additional shares of Common Stock
or Common Stock Equivalents. Except as set forth on Schedule 3.1(g), the
issuance and sale of the Securities will not obligate the Company to issue
shares of Common Stock or other securities to any Person (other than the
Purchasers) and will not result in a right of any holder of Company securities
to adjust the exercise, conversion, exchange or reset price under such
securities. All of the outstanding shares of capital stock of the
Company are validly issued, fully paid and nonassessable, have been issued in
compliance with all federal and state securities laws, and none of such
outstanding shares was issued in violation of any preemptive rights or similar
rights to subscribe for or purchase securities. Except as otherwise
provided in this Agreement, no further approval or authorization of any
stockholder, the Board of Directors of the Company or others is required for the
issuance and sale of the Securities. There are no stockholders
agreements, voting agreements or other similar agreements with respect to the
Company’s capital stock to which the Company is a party or, to the knowledge of
the Company, between or among any of the Company’s stockholders.
8
(“GAAP”), except as may
be otherwise specified in such financial statements or the notes thereto and
except that unaudited financial statements may not contain all footnotes
required by GAAP, and fairly present in all material respects the financial
position of the Company and its consolidated subsidiaries as of and for the
dates thereof and the results of operations and cash flows for the periods then
ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments.
9
pending
or contemplated, any investigation by the Commission involving the Company or
any current or former director or officer of the Company. The
Commission has not issued any stop order or other order suspending the
effectiveness of any registration statement filed by the Company or any
Subsidiary under the Exchange Act or the Securities Act.
10
(o)
Title to
Assets. Except as set forth on Schedule 3.1(o), the
Company and the Subsidiaries have good and marketable title in fee simple to all
real property owned by them that is material to the business of the Company and
the Subsidiaries and good and marketable title in all personal property owned by
them that is material to the business of the Company and the Subsidiaries, in
each case free and clear of all Liens, except for Liens as do not materially
affect the value of such property and do not materially interfere with the use
made and proposed to be made of such property by the Company and the
Subsidiaries and Liens for the payment of federal, state or other taxes, the
payment of which is neither delinquent nor subject to penalties. Any
real property and facilities held under lease by the Company and the
Subsidiaries are held by them under valid, subsisting and enforceable leases of
which the Company and the Subsidiaries are in compliance.
11
or any
such employee has a substantial interest or is an officer, director, trustee or
partner, in each case in excess of $60,000 other than (i) for payment of
salary or consulting fees for services rendered, (ii) reimbursement for
expenses incurred on behalf of the Company and (iii) for other employee
benefits, including stock option agreements under any stock option plan of the
Company.
(u) Private
Placement. Assuming the accuracy of the Purchasers
representations and warranties set forth in Section 3.2, no registration
under the Securities Act is required for the offer and sale of the Securities by
the Company to the Purchasers as contemplated hereby. The issuance
and sale of the Securities hereunder does not contravene the rules and
regulations of the Trading Market.
12
(x)
Listing and Maintenance
Requirements. The Company’s Common Stock is registered
pursuant to Section 12(b) of the Exchange Act, and the Company has taken no
action designed to, or which to its knowledge is likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act nor has
the Company received any notification that the Commission is contemplating
terminating such registration. The Company has not, in the 12 months
preceding the date hereof, received notice from any Trading Market on which the
Common Stock is or has been listed or quoted to the effect that the Company is
not in compliance with the listing or maintenance requirements of such Trading
Market. The Company is, and has no reason to believe that it will not
in the foreseeable future continue to be, in compliance with all such listing
and maintenance requirements.
13
(bb)
Solvency. Based
on the financial condition of the Company as of the Closing Date after giving
effect to the receipt by the Company of the proceeds from the sale of the
Securities hereunder and to the Company’s knowledge, (i) the Company’s fair
saleable value of its assets exceeds the amount that will be required to be paid
on or in respect of the Company’s existing debts and other liabilities
(including known contingent liabilities) as they mature; (ii) the Company’s
assets do not constitute unreasonably small capital to carry on its business for
the current fiscal year as now conducted and as proposed to be conducted
including its capital needs taking into account the particular capital
requirements of the business conducted by the Company, and projected capital
requirements and capital availability thereof; and (iii) the current cash
flow of the Company, together with the proceeds the Company would receive, were
it to liquidate all of its assets, after taking into account all anticipated
uses of the cash, would be sufficient to pay all amounts on or in respect of its
debt when such amounts are required to be paid for the foreseeable
future. The Company does not intend to incur debts beyond its ability
to pay such debts as they mature (taking into account the timing and amounts of
cash to be payable on or in respect of its debt). The Company has no
knowledge of any facts or circumstances which lead it to reasonably believe that
it will file for reorganization or liquidation under the bankruptcy or
reorganization laws of any jurisdiction within one year from the Closing
Date. The SEC Reports set forth as of the dates thereof all
outstanding secured and unsecured Indebtedness of the Company or any Subsidiary,
or for which the Company or any Subsidiary has commitments. For the
purposes of this Agreement, “Indebtedness” shall
mean (a) any liabilities for borrowed money or amounts owed in excess of
$50,000 (other than trade accounts payable incurred in the ordinary course of
business), (b) all guaranties, endorsements and other contingent
obligations in respect of Indebtedness of others, whether or not the same are or
should be reflected in the Company’s balance sheet (or the notes thereto),
except guaranties by endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business; and
(c) the present value of any lease payments in excess of $50,000 due under
leases required to be capitalized in accordance with GAAP. Neither
the Company nor any Subsidiary is in default with respect to any
Indebtedness.
14
payment
to foreign or domestic government officials or employees or to any foreign or
domestic political parties or campaigns from corporate funds, (iii) failed
to disclose fully any contribution made by the Company (or made by any person
acting on its behalf of which the Company is aware) which is in violation of
law, or (iv) violated in any material respect any provision of the Foreign
Corrupt Practices Act of 1977, as amended.
15
(ii)
Manipulation of
Price. The Company has not, and to its knowledge no one acting
on its behalf has, (i) taken, directly or indirectly, any action designed
to cause or to result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of any of the
Securities, (ii) sold, bid for, purchased, or paid any compensation for
soliciting purchases of, any of the Securities (other than for the placement
agent’s placement of the Securities), or (iii) paid or agreed to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company.
Each of
the Purchasers acknowledges and agrees that the Company has not made any
representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in this
Section 3.1.
(a) Organization;
Authority. Such Purchaser, if an entity, is an entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with full right, corporate or partnership power
and authority to enter into and to consummate the transactions contemplated by
the Transaction Documents and otherwise to carry out its obligations hereunder
and thereunder. The execution, delivery and performance by such
Purchaser of the transactions contemplated by this Agreement have been duly
authorized by all necessary corporate or similar action on the part of such
Purchaser. Each Transaction Document to which it is a party has been
duly executed by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of such Purchaser, enforceable against it in accordance with its
terms, except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
16
(c)
Purchaser
Status. At the time such Purchaser was offered the Securities,
it was, and at the date hereof it is, and on each date on which it receives the
Warrant Shares it will be, either: (i) an “accredited investor”
as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the
Securities Act or (ii) a “qualified institutional buyer” as defined in
Rule 144A(a) under the Securities Act. Such Purchaser was not
organized for the purpose of acquiring the Securities and is not required to be
registered as a broker-dealer under Section 15 of the Exchange
Act.
17
(g)
Access to
Information. Such Purchaser acknowledges that it has reviewed
the SEC Reports and the Transaction Documents and has been afforded (i) the
opportunity to ask such questions as it has deemed necessary of, and to receive
answers from, representatives of the Company concerning the terms and conditions
of the offering of the Securities and the merits and risks of investing in the
Securities; (ii) access to information about the Company and the
Subsidiaries and their respective financial condition, results of operations,
business, properties, management and prospectus sufficient to enable it to
evaluate its investment; and (iii) the opportunity to obtain such
additional information that the Company possesses or can acquire without
unreasonable effort or expense that is necessary to make an informed investment
decision with respect to the Securities. Neither such inquiries nor
any other investigation conducted by or on behalf of such Purchaser or its
representatives or counsel shall modify, amend or affect such Purchaser’s right
to rely on the truth, accuracy and completeness of the SEC Reports and the
Transaction Documents, and the Company’s representations and warranties
contained in the Transaction Documents.
18
The
Company acknowledges and agrees that each Purchaser does not make or has not
made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this
Section 3.2.
The
Purchasers agree to the imprinting, so long as is required by this
Section 4.1, of a legend on any of the Securities (and any certificates or
instruments representing the Securities) in the following form:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY.
The
Company acknowledges and agrees that a Purchaser may from time to time pledge
pursuant to a bona fide margin agreement with a registered broker-dealer or
grant a security interest in some or all of the Securities to a financial
institution that is an “accredited investor” as defined in Rule 501(a) under the
Securities Act and who agrees to be bound by the provisions of this Agreement
and, if required under the terms of such arrangement, such Purchaser may
transfer pledged or secured Securities to the pledgees or secured
parties. Such a pledge or transfer would not be subject to approval
of the Company and no legal opinion of legal counsel of the pledgee, secured
party or pledgor shall be required in connection therewith. Further,
no notice shall be required of such pledge. At the appropriate
Purchaser’s expense, the Company
19
will
execute and deliver such reasonable documentation as a pledgee or secured party
of Securities may reasonably request in connection with a pledge or transfer of
the Securities, including, with respect to the Warrant Shares, if registered
pursuant to Section 4.15 below, the preparation and filing of any required
prospectus supplement under Rule 424(b)(3) under the Securities Act or other
applicable provision of the Securities Act to appropriately amend the list of
selling stockholders thereunder.
20
its
Subsidiaries, or any of its or their respective officers, directors, employees
and agents, in addition to any other remedy provided herein or in the
Transaction Documents, a Purchaser shall have the right to make public
disclosure in the form of a press release, public advertisement or otherwise, of
such material nonpublic information without the prior approval by the Company,
its Subsidiaries, or any of its or their respective officers, directors,
employees or agents, provided that such Purchaser gives the Company at least two
(2) Trading Days’ notice of its intention to make such public disclosure
and provides such intended disclosure to the Company. No Purchaser
shall have any liability to the Company, its Subsidiaries, or any of its or
their respective officers, directors, employees, shareholders or agents for any
such disclosure.
21
judgments,
amounts paid in settlements, court costs and reasonable attorneys’ fees and
costs of investigation that any such Purchaser Party may suffer or incur as a
result of or relating to (a) any breach of any of the representations,
warranties, covenants or agreements made by the Company in this Agreement or in
the other Transaction Documents or (b) any action instituted against a
Purchaser, or any of them or their respective Affiliates, by any stockholder of
the Company who is not an Affiliate of such Purchaser, with respect to any of
the transactions contemplated by the Transaction Documents (unless such action
is based upon a breach of such Purchaser’s representations, warranties or
covenants under the Transaction Documents or any agreements or understandings
such Purchaser may have with any such stockholder or any violations by the
Purchaser of state or federal securities laws or any conduct by such Purchaser
which constitutes fraud, gross negligence, willful misconduct or
malfeasance). If any action shall be brought against any Purchaser
Party in respect of which indemnity may be sought pursuant to this Agreement,
such Purchaser Party shall promptly notify the Company in writing, and the
Company shall have the right to assume the defense thereof with counsel of its
own choosing. Any Purchaser Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such Purchaser
Party except to the extent that (i) the employment thereof has been
specifically authorized by the Company in writing, (ii) the Company has
failed after a reasonable period of time to assume such defense and to employ
counsel or (iii) in such action there is, in the reasonable opinion of such
separate counsel, a material conflict on any material issue between the position
of the Company and the position of such Purchaser Party. The Company
will not be liable to any Purchaser Party under this Agreement (i) for any
settlement by a Purchaser Party effected without the Company’s prior written
consent, which shall not be unreasonably withheld, conditioned or delayed; or
(ii) to the extent, but only to the extent that a loss, claim, damage or
liability is attributable to any Purchaser Party’s breach of any of the
representations, warranties, covenants or agreements made by the Purchasers in
this Agreement or in the other Transaction Documents.
(a) As
of the date hereof, the Company has reserved and the Company shall continue to
reserve and keep available at all times, free of preemptive rights, a sufficient
number of shares of Common Stock for the purpose of enabling the Company to
issue Warrant Shares pursuant to the Transaction Documents.
(b) If,
on any date, the number of authorized but unissued (and otherwise unreserved)
shares of Common Stock is less than maximum number of issuable Warrant Shares,
then the Board of Directors of the Company shall use commercially reasonable
efforts to promptly amend the Company’s certificate of incorporation to increase
the number of authorized but unissued shares of Common Stock to at least the
maximum number of issuable Warrant Shares.
(c) The
Company shall, if applicable: (i) in the time and manner required by
the Trading Market, prepare and file with such Trading Market an additional
shares listing application covering a number of shares of Common Stock at least
equal to the maximum number of issuable Warrant Shares, (ii) take all steps
necessary to cause such shares of Common Stock to be approved for listing on the
Trading Market promptly
22
thereafter,
(iii) provide to the Purchasers evidence of such listing, and (iv) maintain the
listing of such Common Stock on any date at least equal to the maximum number of
issuable Warrant Shares on such Trading Market or another Trading
Market.
23
4.14 Reasonable Best
Efforts. Each party shall use its reasonable best efforts to
timely satisfy each of the conditions to be satisfied by it as provided in
Section 2.3 of this Agreement.
24
in the
reasonable opinion of such underwriters can be sold without adversely affecting
the marketability of the offering (including an adverse effect on the per share
offering price), which securities will be so included in the following order of
priority: (i) first, the securities the Company proposes to sell, (ii) second,
Securities of the Purchasers who have requested registration of Securities
pursuant to Sections 4.15, pro rata on the basis of the aggregate number of such
Securities owned by each such person and (iii) third, any other securities of
the Company that have been requested to be so included, subject to the terms of
this Agreement.
(a) prepare
and file with the Commission a registration statement with respect to such
Warrant Shares, make all required filings with the National Association of
Securities Dealers and the Financial Industry Regulatory Authority and
thereafter use its reasonable best efforts to cause such registration statement
to become effective as soon as reasonably practicable and to remain effective as
provided herein;
(b) prepare
and file with the Commission such amendments and supplements to such
registration statement as may be necessary to keep such registration statement
effective for a period of either (A) not less than (i) six months, (ii) if such
registration statement relates to an underwritten offering, such longer period
as, based upon the opinion of counsel for the underwriters, a prospectus is
required by law to be delivered in connection with sales of Securities by an
underwriter or dealer or (iii) continuously in the case of shelf registration
statements and any shelf registration statement shall be re-filed upon its
expiration (or in each case such shorter period ending on the date that the
securities covered by such shelf registration statement cease to constitute
Warrant Shares) or (B) such shorter period as will terminate when all of the
securities covered by such registration statement have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement (but in any event not before
the expiration of any longer period required under the Securities Act) or
pursuant to Rule 144, and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement until such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement, and cause the related
prospectus to be supplemented by any prospectus supplement as may be necessary
to comply with the provisions of the Securities Act with respect to the
disposition of the securities covered by such registration statement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) under the Securities Act;
(c) furnish
to each seller of Warrant Shares covered by such registration statement such
number of copies, without charge, of such registration statement, each amendment
and supplement thereto, including each preliminary prospectus, final prospectus,
any other prospectus (including any prospectus filed under Rule 424, Rule 430A
or Rule 430B under
25
the
Securities Act and any “issuer free writing prospectus” as such term is defined
under Rule 433 promulgated under the Securities Act), all exhibits and other
documents filed therewith and such other documents as such seller or such
managing underwriter may reasonably request including in order to facilitate the
disposition of the Warrant Shares owned by such seller, and upon request a copy
of any and all transmittal letters or other correspondence to or received from,
the Commission or any other governmental entity relating to such
offer;
(d) register
or qualify (or exempt from registration or qualification) such Warrant Shares,
and keep such registration or qualification (or exemption therefrom) effective,
under such other securities or blue sky laws of such jurisdictions as Purchasers
of Securities covered by such registration statement reasonably request and do
any and all other acts and things that may be reasonably necessary or reasonably
advisable to enable such Purchasers to consummate the disposition in such
jurisdictions of the Securities owned by such Purchasers (provided that the
Company will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
subsection, (ii) subject itself to taxation in any such jurisdiction or (iii)
consent to general service of process in any such jurisdiction);
(e) notify
each seller of such Warrant Shares covered by such registration statement at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the discovery of the happening of
any event that makes any statement made in the registration statement or related
prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in such registration statement, prospectus or documents and, as soon as
reasonably practicable, prepare and furnish to such seller a reasonable number
of copies of a supplement or amendment to such prospectus so that, in the case
of the registration statement, it will not contain any untrue statement of
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, not misleading, and that in the
case of any prospectus, it will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statement
therein, in light of the circumstances in which they were made, not
misleading;
(f) notify
each seller of any Warrant Shares covered by such registration statement (i)
when such registration statement or the prospectus or any prospectus supplement
or post-effective amendment has been filed and, with respect to such
registration statement or any post-effective amendment, when the same has become
effective, (ii) of any request by the Commission for amendments or supplements
to such registration statement or to amend or to supplement such prospectus or
for additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of such registration statement or the
initiation of any proceedings for any of such purposes, (iv) if at any time the
representations and warranties of the Company contained in any corresponding
underwriting agreement cease to be true and correct, and (v) 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 Securities for sale
in any jurisdiction, or the initiation or threatening of any proceeding for such
purpose;
(g) cause
all such Warrant Shares to be listed on the Trading Market on which the Common
Stock is then listed;
26
(h)
provide a
transfer agent and registrar for all such Warrant Shares not later than the
effective date of such registration statement;
(i) in
the case of certificated Warrant Shares, cooperate with the Purchasers of such
Warrant Shares and the managing underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates (not bearing any legends) representing
Warrant Shares to be sold after receiving written representations from each
Purchaser of such Warrant Shares that that the Warrant Shares represented by the
certificates so delivered by such Purchaser will be transferred in accordance
with the registration statement, and enable such Warrant Shares to be in such
denominations and registered in such names as the Purchasers or managing
underwriters, if any, may request at least two business days prior to any sale
of Warrant Shares;
(j) otherwise
use its reasonable best efforts to comply with all applicable rules and
regulations of the Commission and any applicable national securities
exchange;
(k) timely
provide to its security holders earning statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(l) in
the event of the issuance of any stop order suspending the effectiveness of a
registration statement, or of any order suspending or preventing the use of any
related prospectus or ceasing trading of any securities included in such
registration statement for sale in any jurisdiction, use every reasonable effort
to promptly obtain the withdrawal of such order;
(m) obtain
any required regulatory approval necessary for the Purchasers to sell Warrant
Shares in an offering; and
(n) as
a condition to registering Warrant Shares, the Company may require each
Purchaser holding Securities as to which any registration is being effected to
furnish the Company with such information regarding such person and pertinent to
the disclosure requirements relating to the registration and the distribution of
such securities as the Company may from time to time reasonably request in
writing.
(a) None
of the Purchasers may participate in any registration hereunder that is
underwritten unless such person (i) agrees to sell its Warrant Shares on the
basis provided in the underwriting arrangements in customary form entered into
pursuant to this Agreement (including pursuant to the terms of any
over-allotment or “green shoe” option requested by the managing underwriter(s),
provided that no such person will be required to sell more than the number of
Warrant Shares that such person has requested the Company to include in any
registration), (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements, provided that such
person shall not be required to make any representations or warranties other
than those related to title and ownership of shares and as to the accuracy and
completeness of statements made in a registration statement, prospectus,
offering circular, or other document in reliance upon and in conformity with
written information furnished to the Company or the managing underwriter(s) by
such person, and (iii) cooperates with the Company’s reasonable requests in
connection with such registration or qualification (it
27
being
understood that the Company’s failure to perform its obligations hereunder,
which failure is caused by such person’s failure to cooperate with such
reasonable requests, will not constitute a breach by the Company of this
Agreement). Notwithstanding the foregoing, the liability of any Purchaser
participating in such an underwritten registration shall be limited to an amount
equal to the amount of gross proceeds attributable to the sale of such person’s
Warrant Shares;
(b) Each
person that is participating in any registration hereunder agrees that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 4.16(e) and 4.16(f), such person will forthwith discontinue
the disposition of its Warrant Shares pursuant to the registration statement
until such person receives copies of a supplemented or amended prospectus. In
the event the Company gives any such notice, the applicable time period
mentioned in Section 4.16(b) during which a registration statement is to remain
effective will be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to this Section 4.17(b)
to and including the date when each seller of Warrant Shares covered by such
registration statement will have received the copies of the supplemented or
amended prospectus.
5.4 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 (a) the date of transmission, if such notice
or communication is delivered via facsimile or email at the facsimile number or
email address set forth on the signature pages attached hereto prior to 5:30
p.m. (New York City time) on a Trading Day, (b) the next
Trading Day after the date of transmission, if such notice or communication is
delivered via facsimile or email at the facsimile number or email address set
forth on the signature pages attached hereto on a day that is not a Trading Day
or later than 5:30 p.m. (New York City time) on any Trading
28
Day,
(c) the 2nd Trading Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (d) 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 set forth on the signature pages
attached hereto.
5.9 Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of the Transaction Documents 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 agrees that all legal proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by
this Agreement and any other Transaction Documents (whether brought against a
party hereto or its respective affiliates, directors, officers, shareholders,
employees or agents) shall be commenced exclusively in the state and federal
courts sitting in the City of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, borough of Manhattan for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect to
the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and
29
agrees
not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such suit, action
or proceeding is improper or inconvenient venue for such
proceeding. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
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
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A
JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
HEREWITH OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR
ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY. If either party shall
commence an action or proceeding to enforce any provisions of the Transaction
Documents, then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its attorneys’ fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
action or proceeding.
30
5.14
Replacement of
Securities. If any certificate or instrument evidencing any
Securities is mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation
thereof, or in lieu of and substitution therefor, a new certificate or
instrument, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and customary and reasonable
indemnity, if requested. The applicants for a new certificate or
instrument under such circumstances shall also pay any reasonable third-party
costs associated with the issuance of such replacement Securities.
31
5.18
Liquidated
Damages. The Company’s obligations to pay any partial
liquidated damages or other amounts owing under the Transaction Documents is a
continuing obligation of the Company and shall not terminate until all unpaid
partial liquidated damages and other amounts have been paid notwithstanding the
fact that the instrument or security pursuant to which such partial liquidated
damages or other amounts are due and payable shall have been
canceled.
(Signature
Pages Follow)
32
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
ACCESS
INTEGRATED TECHNOLOGIES, INC.
|
Address
for Notice:
Attn:
General Counsel
00
Xxxxxxx Xxx., Xxxxx 000
Xxxxxxxxxx,
X.X. 00000
|
|
By:
|
/s/ A. Xxxx Xxxx | |
|
Name:
A. Xxxx Xxxx
Title: CEO
|
With a
copy to (which shall not constitute notice):
Xxxxxx
Xxxx & Xxxxxx LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxxx Xxxxxxxxx
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
33
[PURCHASER
SIGNATURE PAGES TO ACCESS INTEGRATED TECHNOLOGIES, INC.
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
|
Name
of Purchaser:
|
Xxxxxxx Xxxxxx | |||||
|
Signature
of Authorized Signatory of Purchaser:
|
/s/ Xxxxxxx Xxxxxx | |||||
|
Name
of Authorized Signatory:
|
||||||
|
Title
of Authorized Signatory:
|
||||||
|
Email
Address of Purchaser:
|
||||||
|
Address
for Notice of Purchaser:
|
||||||
Address
for Delivery of Securities for Purchaser (if not same as above):
Subscription
Amount: $2,000,000
34
EXHIBIT
A
Intentionally
Omitted
A-1
EXHIBIT
B
FORM
OF CERTIFICATE OF DESIGNATIONS
B-1
EXHIBIT
C
FORM
OF SERIES A PREFERRED STOCK CERTIFICATE
C-1
EXHIBIT
D
FORM
OF WARRANT
D-1
ACCESS
INTEGRATED TECHNOLOGIES, INC.
DISCLOSURE
SCHEDULES
Attached
hereto are the Schedules to the Securities Purchase Agreement (the “Agreement”),
by and between Access Integrated Technologies, Inc. (the “Company”) and each
purchaser identified on the signature pages thereto. Capitalized
terms used but not otherwise defined herein have the respective meanings
ascribed to them in the Agreement.
Each
Section referenced in the Schedules is a reference to the corresponding Section
in the Agreement, except as otherwise provided herein; provided, however, that the
inclusion of any matter in any Schedule shall also be deemed to be an inclusion
in any other Schedule, including each representation and warranty to which it
may relate. The inclusion of a matter in the Schedules shall
expressly not be deemed to constitute an admission by the Company, or otherwise
imply, that such matter is material or creates a measure for materiality for the
purposes of the Agreement.
The
Schedules may include additional information not specifically required to be
disclosed pursuant to the Agreement; such information is being provided for
informational purposes only and shall not be deemed to or interpreted to broaden
or otherwise amplify the Company’s representations and warranties, covenants or
agreements contained in the Agreement.
Nothing
in the Schedules shall influence the construction or interpretation of any of
the representations and warranties contained in Agreement. The
headings contained in the Schedules are for convenience of reference only and
shall not be deemed to modify or influence the interpretation of the information
contained in the Schedules or the Agreement.
Schedule
3.1(a)
Subsidiaries
|
PART I
|
||
|
Jurisdiction of
Incorporation
|
Percentage of Ownership
|
|
|
Access
Digital Media, Inc. (“AccessDM”)
|
Delaware
|
100%
|
|
Core
Technology Services, Inc.
|
100%
|
|
|
Hollywood
Software, Inc., d/b/a AccessIt Software
|
California
|
100%
|
|
FiberSat
Global Services Inc., d/b/a AccessIT Satellite and Support
Services
|
Delaware
|
100%
|
|
ADM
Cinema Corporation, d/b/a The Pavilion Theatre
|
Delaware
|
100%
|
|
UniqueScreen
Media, Inc., d/b/a AccessIT Advertising and Creative Services
(“ACS”)
|
Delaware
|
100%
|
|
Vistachiara
Productions, Inc., d/b/a The Bigger Picture
|
Delaware
|
100%
|
|
Vistachiara
Entertainment, Inc.
|
Delaware
|
100%
|
|
Access
Digital Cinema Phase 2 Corp.
|
Delaware
|
100%
|
|
PART II
|
||
|
Jurisdiction of
Incorporation
|
By Hollywood Software,
Inc.
|
|
|
PLX
Acquisition Corp.
|
Delaware
|
100%
|
|
PART III
|
||
|
Jurisdiction of
Incorporation
|
Percentage of Ownership
|
|
|
Christie/AIX,
Inc. (“Christie/AIX”)
|
Delaware
|
100%
|
|
PART IV
|
||
|
Jurisdiction of
Incorporation
|
Percentage of Ownership
|
|
|
Access
Digital Cinema Phase 2 B/AIX Corp., formerly Access Digital Cinema / Barco
Phase 2 Corp.
|
Delaware
|
100%
|
Pursuant to
the Pledge agreement, dated as of August 1, 2006, between AccessDM and General
Electric Capital Corporation (“GE”), as administrative agent and collateral
agent for certain
Schedule
3.1(a) - Page 1
lenders
under a Credit Agreement, dated as of August 1, 2006, by and among, AccessDM,
the lenders party thereto and GE, as administrative agent and collateral agent
for such lenders (the “Credit Agreement”), AccessDM has granted a security
interest in, and pledged, all of the issued and outstanding capital stock that
it owns in Christie/AIX to GE, as administrative agent and collateral agent for
the lenders under the Credit Agreement.
In
connection with the acquisition by the Company of all of the outstanding capital
stock ACS from the stockholders of ACS (the “ACS Stockholders”) pursuant to a
stock purchase and sale agreement dated July 6, 2006 between the Company, the
ACS Stockholders and Granite Equity Limited Partnership, as Stockholder
Representative (the “ACS Purchase Agreement”), as partial consideration paid by
the Company to the ACS Stockholders the Company issued promissory notes in favor
of the ACS Stockholders in the principal amount of approximately $5.2 million,
of which approximately $431,000 was outstanding as of September 30,
2008.
Schedule
3.1(a) - Page 2
Schedule
3.1(d)
Conflicts
None
Schedule 3.1(d)
Schedule
3.1(g)
Capitalization
|
Authorized
|
Issued & Outstanding
|
|||||||||
|
Class
A Common Stock, Par Value $0.001
|
65,000,000 | 27,272,875 | (1) | |||||||
|
Class
B Common Stock, Par Value $0.001
|
15,000,000 | 733,811 | (2) | |||||||
|
Total
Common Stock
|
80,000,000 | 28,006,686 | ||||||||
|
Series
A Preferred Stock, Par Value $0.001
|
20 | 0 | ||||||||
|
Undesignated
Preferred Stock, Par Value $0.001
|
14,999,980 | 0 | ||||||||
|
Total
Preferred Stock
|
15,000,000 | 0 | ||||||||
|
Total
Capital Stock
|
95,000,000 | 28,006,686 | ||||||||
|
Potentially Issuable (3):
|
||||||||||
|
AccessIT
Equity Incentive Plan
|
3,700,000 | 3,133,411 | ||||||||
|
Plus:
reserved, unissued equity instruments
|
545,772 | |||||||||
|
Warrants
issued in connection with Series A Preferred Stock
|
700,000 | 700,000 | ||||||||
|
Warrants
issued in connection with July 2005 private placement
|
477,275 | 467,275 | ||||||||
|
Warrants
issued in connection with the conversion of all Convertible Debentures
Warrants in August 2005
|
760,196 | 760,196 | ||||||||
|
Total
Potentially Issuable
|
5,637,471 | 5,606,654 | ||||||||
|
Total
Potentially O/S Shares
|
33,393,120 | |||||||||
|
(1)
Net of 51,440 shares purchased by the Company and held as treasury
stock.
|
||||||||||
|
(2)
Class B shares are supervoting 10:1 and are convertible to Class A at any
time on a 1:1 basis.
|
||||||||||
|
(3)
Excludes shares which may be issued at the Company’s option in payment of
interest pursuant to the 2007 senior notes, and additional interest for
which the Company is obligated to issue shares, ranging from 132,000 to
220,000 shares per quarter until the maturity of the notes in
2011. The amount of such share issuances is not currently
determinable.
|
||||||||||
Schedule
3.1(g)
Schedule
3.1(i)
None,
except for disclosures related to the transactions contemplated by this
Agreement.
Schedule
3.1(i)
Schedule
3.1(k)
A
subsidiary of the Company, ADM Cinema Corporation (“ADM Cinema”), was named as a
defendant in an action filed on May 19, 2008 in the Supreme Court of the State
of New York, County of Kings by Pavilion on the Park, LLC
(“Landlord”). Landlord is the owner of the premises located at 000
Xxxxxxxx Xxxx Xxxx, Xxxxxxxx, Xxx Xxxx, known as the Pavilion
Theatre. Pursuant to the relevant lease, ADM Cinema leases the
Pavilion Theatre from Landlord and operates it as a movie theatre.
In the
complaint, Landlord alleges that ADM Cinema has violated its obligations under
Article 12 of the lease in that ADM Cinema failed to comply with an Order of the
Fire Department of the City of New York issued on September 24, 2007 calling for
the installation of a sprinkler system in the Pavilion Theatre and that such
violation constitutes an event of default under the lease. Landlord
seeks to terminate the lease and evict ADM Cinema from the premises and to
recover its attorneys’ fees and damages for ADM Cinema’s alleged “holding over”
by remaining on the premises. We believe that we have meritorious defenses
against these claims and we intend to defend our position vigorously. However,
if we do not prevail, any significant loss resulting in eviction may have a
material effect on our business, results of operations and cash
flows.
Schedule
3.1(k)
Schedule
3.1(l)
Labor
Relations
None
Schedule
3.1(l)
Schedule
3.1(o)
None
except as disclosed in SEC Reports.
Schedule
3.1(o)
Schedule
3.1(ff)
Accountants
Xxxxxx,
LLP
Schedule
3.1(ff)
Schedule
3.1(kk)
Employment
Agreements
|
·
|
Amended
and Restated Employment Agreement, dated March 31, 2008, between the
Company and A. Xxxx Xxxx.
|
|
·
|
Employment
Agreement, dated as of April 10, 2000, between the Company and Xxxxx
Xxxxxxx.
|
|
·
|
Second
Amended and Restated 2000 Equity Incentive Plan of the Company, as
amended.
|
|
·
|
Access
Integrated Technologies, Inc. 401(k)
Plan.
|
|
·
|
Access
Integrated Technologies, Inc. Medical
Plan.
|
|
·
|
Access
DM Stock Option Plan.
|
Schedule
3.1(kk)
Schedule
4.8
Use of
Proceeds
|
Gross
Proceeds
|
$2,000,000.00
|
|
Less:
|
|
|
Legal
and other professional fees
|
$25,000.00
|
|
Finder’s
Fee payable to Green Barn Advisors, LLC
|
$80,000.00
|
|
Proceeds
for use as described in Section 4.8 of the Agreement
|
$1,895,000.00
|
Schedule
4.8
