EXHIBIT 2.3
AMENDMENT NO. 1 TO
STOCK PURCHASE AGREEMENT
This AMENDMENT NO. 1 to STOCK PURCHASE AGREEMENT, dated as of
November 3, 2003 (this "First Amendment"), by and among Access Integrated
Technologies, Inc., a Delaware corporation ("Buyer"), Hollywood Software, Inc.,
a California corporation ("Company"), ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(collectively, the "Sellers" and each individually, a "Seller") and ▇▇▇▇▇▇
▇▇▇▇▇▇ & Co., LLC, a New York limited liability company ("Underwriter").
WHEREAS, Buyer, Company and the Sellers have entered into that
certain Stock Purchase Agreement, dated as of July 17, 2003 (the "Purchase
Agreement");
WHEREAS, Buyer has agreed to pay the Purchase Price to the
Sellers at the Closing pursuant to Section 1.2 of the Purchase Agreement;
WHEREAS, the obligation of Buyer and each of the Sellers to
consummate the transactions contemplated by the Purchase Agreement is
conditioned, among other things, upon Buyer's consummation of an underwritten
public offering with aggregate net proceeds of not less than $3,000,000 pursuant
to Sections 4.1(p) and 4.2(h), respectively, of the Purchase Agreement (the "IPO
Condition");
WHEREAS, Buyer and Underwriter have indicated that the
Securities Exchange Commission will not declare the Registration Statement on
Form SB-2 relating to the proposed IPO by Buyer (SEC File No.: 333-107711) (the
"Registration Statement") effective unless either (i) the Closing of Buyer's
acquisition of the Company occurs prior to effectiveness, or (ii) the IPO
contemplated by the Registration Statement is completed with certain changes in
offering structure, including the establishment of an IPO escrow.
WHEREAS, at Buyer and Underwriter's request and in order to
facilitate the prompt and efficient closing of the IPO, Buyer and each of the
Sellers agree to waive, subject to the terms and conditions of this First
Amendment, the IPO Condition; and
WHEREAS, the parties desire to amend certain provisions of the
Purchase Agreement in connection with the waiver of the IPO Condition.
NOW, THEREFORE, in consideration of the foregoing (each of
which shall be deemed to be an integral part of this First Amendment) and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Definitions. Capitalized terms not otherwise defined in
this First Amendment shall have the meanings ascribed to them in the Purchase
Agreement.
2. Waiver of IPO Condition. In order to effectuate the
Closing, Buyer and each of the Sellers hereby agree to waive the IPO Condition.
3. Amendment. In connection with the waiver of the IPO
Condition and notwithstanding the terms of Section 1.2 of the Purchase Agreement
regarding Buyer's payment of the Purchase Price to the Sellers, the following
modifications to the Purchase Agreement shall be made:
(a) Closing Date Consideration. In lieu of the Purchase Price,
the consideration to be delivered by Buyer to the Sellers at the Closing shall
be paid by issuing two (2) secured promissory notes of Buyer, each in the
principal amount of $3.625 million, substantially in the form of Exhibit A
hereto (the "Closing Notes"), each of which Notes shall be secured pursuant to a
Pledge Agreement in substantially the same for as Exhibit B to this First
Amendment (the "Initial Pledge Agreement"). The Closing shall occur on the date
hereof. Notwithstanding anything to the contrary contained in the Purchase
Agreement, this First Amendment or any other agreement contemplated hereby or
thereby, in the event that the Registration Statement is not declared effective
on or before November 11, 2003, any transactions occurring at the Closing and
any deliveries made by Buyer, Sellers or the Company at or in connection with
such Closing shall automatically be deemed rescinded and of no force and effect,
including, without limitation, the Employment Agreements of each Seller attached
as exhibits to the Purchase Agreement.
(b) Post-Closing Exchange Consideration. Upon and subject to
the completion of the IPO, Buyer shall pay the Purchase Price to the Sellers in
exchange for the Closing Notes (the "Exchange"). On or prior to the earlier of
the end of the fifth (5th) business day following the date upon which the
Registration Statement shall have been declared effective (the date of such
effectiveness being referred to herein as the "Effective Time"), the parties
shall concurrently make the following deliveries in connection with the Exchange
(the "Consideration Exchange Deliveries"):
(x) Each of the Sellers, upon receipt of the Cash Purchase
Price in accordance with clause (y) below, shall deliver the Closing Notes to
Buyer for cancellation;
(y) Underwriter shall, at the direction of Buyer and in
accordance with Section 1.2(f) of the Purchase Agreement, deliver by wire
transfer that portion of the net proceeds of the IPO representing the Cash
Purchase Price directly to the Sellers and, if applicable, certain designated
holders of Company Options; and
(z) Buyer shall, subject to the Sellers' delivery of the
Closing Notes in accordance with clause (x) above, deliver the Buyer Common
Stock and the Notes in accordance with Sections 1.2(a)(ii) and (iii) of the
Purchase Agreement.
(c) Default; Rescission. For purposes of this First Amendment,
a "Rescission Event" shall be deemed to exist immediately upon the occurrence of
any of the following: (1) prior to the fifth (5th) business day following the
Effective Time, the parties shall not have completed the Exchange and made the
Consideration Exchange Deliveries, through no fault of the Sellers, (2) Buyer
shall take any action, prior to completing the Exchange and making the
Consideration Exchange Deliveries, to (A) remove either of the Sellers as a
director or officer of the Company or appoint any executive officer of the
Company having a title or responsibilities that are not subordinate to the
Sellers, (B) change the composition of the Board of Directors by increasing or
decreasing the number of authorized directors, (C) issue or cause the Company to
issue any securities of the Company, or (D) hire or fire any employees of the
Company without the express written consent of Sellers, (3) Buyer or Seller
shall initiate or have initiated against it any assignment for the benefit of
creditors, bankruptcy, insolvency or other such proceeding under state or
federal law, (4) Buyer shall sell, assign, pledge, transfer or otherwise
encumber any of the shares of common stock of the Company, or (5) Buyer shall
agree or cause any other person or entity to agree to any of the foregoing. Upon
the occurrence of any Rescission Event, (i) any transaction or exchange of
documentation shall automatically be deemed rescinded (unless Sellers and the
Company shall have delivered written notice to Buyer specifically waiving or
providing additional time for Buyer to cure such Rescission Event), (ii) all
right, title and interest in the Company Stock shall be deemed to have reverted
back to the Sellers, and (iii) each of Buyer and Sellers shall return all
original documentation exchanged in connection with the Closing.
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4. Remedies. Other than any remedies that available to the
Sellers pursuan tto the terms of the Initial Pledge Agreement or the Closing
Notes, each Seller hereby acknowledges and agrees that its sole and exclusive
remedy in the event of a the failure of Buyer to complete the Exchange as a
result of a Rescission Event shall be (i) a rescission of the Closing and
related transactions, including the reversion of all right, title and interest
in the Company Stock to the Sellers, (ii) payment by Buyer of all reasonable
legal fees, costs and expenses incurred by the Company or Sellers in connection
with the negotiation, execution and delivery of this First Amendment (the
"Transaction Fees") and the exercise of any rescission remedies by the Company
or Sellers hereunder, and (iii) indemnification and defense by Buyer of the
Company, each of the Sellers and their respective directors, officers,
affiliates, successors or assigns, from and against any and all claims, losses,
damages, legal proceedings, and other costs (including reasonable attorneys' and
accountants' fees and costs) resulting from the treatment of the Closing and any
subsequent rescission contemplated by this First Amendment as a taxable
disposition or sale of the Shares by the Sellers (the "Exclusive Remedy"). In
the event that the Closing occurs and the Exchange is made as contemplated by
this First Amendment, Buyer agrees to pay or immediately reimburse Sellers
and/or the Company for any Transaction Fees.
5. Limited Effect. Except as expressly amended and modified by
this First Amendment, the Purchase Agreement shall continue in full force and
effect in accordance with its terms.
6. Counterparts. For convenience of the parties, this First
Amendment may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
First Amendment to be duly executed on its behalf as of the date first above
written.
ACCESS INTEGRATED TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ A. ▇▇▇▇ ▇▇▇▇
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Name: A. ▇▇▇▇ ▇▇▇▇
Title: President/Chief Executive Officer
HOLLYWOOD SOFTWARE, INC.,
a California corporation
By:
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Name:
President
THE SELLERS:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ & CO., LLC,
a New York limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Member