EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement, dated as of March 29, 2004, by and
between Access Integrated Technologies, Inc., a Delaware corporation (the
"Company"), and The Boeing Company, a Delaware corporation (the "Holder").
WITNESSETH
WHEREAS, the Company and the Holder have entered into that certain
Asset Purchase Agreement, dated as of the date hereof (the "Asset Purchase
Agreement"), pursuant to which the Company has agreed to issue to the Holder an
aggregate of 53,534 shares of the Company's Class A Common Stock, $0.001 par
value (the "Common Stock"), on terms as set forth in the Asset Purchase
Agreement; and
WHEREAS, in order to induce the Holder to enter into the Asset
Purchase Agreement and to accept such shares of Common Stock as part of the
consideration under the terms of such Asset Purchase Agreement, the Company has
agreed to provide registration rights with respect thereto;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, it is agreed as follows:
1. DEFINITIONS. Unless otherwise defined herein, terms defined in
the Asset Purchase Agreement are used herein as therein defined, and the
following shall have the following respective meanings (such meanings being
equally applicable to both the singular and plural form of the terms defined):
"Agreement" shall mean this Registration Rights Agreement, including
all amendments, modifications and supplements and any exhibits or schedules to
any of the foregoing, and shall refer to the Agreement as the same may be in
effect at the time such reference becomes operative.
"Business Day" shall mean any day that is not a Saturday, a Sunday
or a day on which banks are required or permitted to be closed in the State of
New York.
"Commission" shall mean the Securities and Exchange Commission or
any other federal agency then administering the Securities Act and other federal
securities laws.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Holder" shall mean the holder of Registrable Securities.
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"NASD" shall mean the National Association of Securities Dealers,
Inc., or any successor corporation thereto.
"Registrable Securities" shall mean the shares of Common Stock
issued by the Company to the Holder; provided however that Registrable
Securities shall not include those shares of such Common Stock held by the
Holder that (a) have been effectively registered under Section 5 of the
Securities Act and disposed of pursuant to a Registration Statement or (b) have
been transferred pursuant to Rule 144 under the Securities Act or any successor
rule.
"Securities Act" shall mean the Securities Act of 1933, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
2. INCIDENTAL REGISTRATION. If the Company at any time proposes to
file on its behalf and/or on behalf of any of its security holders (the
"demanding security holders") a registration statement under the Securities Act
on any form (other than a registration statement on Form S-4 or S-8 or any
successor form for securities to be offered in a transaction of the type
referred to in Rule 145 under the Securities Act or to employees of the Company
pursuant to any employee benefit plan, respectively) for the general
registration of securities (the "Registration Statement"), it will give written
notice to the Holder at least 30 days before the initial filing with the
Commission of such Registration Statement, which notice shall set forth the
intended method of disposition of the securities proposed to be registered by
the Company. The notice shall offer to include in such filing the aggregate
number of shares of Registrable Securities as the Holder may request.
Should the Holder desire to have Registrable Securities registered
under this Section 2, the Holder shall advise the Company in writing within 10
Business Days after the date of receipt of such offer from the Company, setting
forth the amount of such Registrable Securities for which registration is
requested. The Company shall thereupon include in such filing the number of
shares of Registrable Securities for which registration is so requested, subject
to the next sentence, and shall use commercially reasonable efforts to effect
registration under the Securities Act of such shares. If the managing
underwriter of a proposed public offering shall advise the Company in writing
that, in its opinion, the distribution of the Registrable Securities requested
to be included in the registration concurrently with the securities being
registered by the Company or by any demanding security holder would materially
and adversely affect the distribution of such securities by the Company or such
demanding security holder, then the Holder shall reduce the amount of securities
it intended to distribute through such offering on a pro rata basis with other
holders of Common Stock seeking to have their shares of Common Stock included in
the registration. Except as otherwise provided in Section 4, all expenses of
such registration shall be borne by the Company.
3. REGISTRATION PROCEDURES. If the Company is required by the
provisions of Section 2 to use commercially reasonable efforts to effect the
registration of any of its securities under the Securities Act, the Company
will, as expeditiously as possible:
(a) prepare and file with the Commission a Registration
Statement with respect to such securities and use commercially reasonable
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efforts to cause such Registration Statement to become and remain effective for
a period of time required for the disposition of such securities by the holders
thereof, but not to exceed 180 days;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such Registration Statement until
the earlier of such time as all of such securities have been disposed of in a
public offering or the expiration of 180 days;
(c) furnish to the Holder, such number of copies of a summary
prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents, as the Holder may reasonably request;
(d) use commercially reasonable efforts to register or qualify
the securities covered by such Registration Statement under such other
applicable state securities or blue sky laws of such jurisdictions as the Holder
shall request (PROVIDED, HOWEVER, that the Company shall not be obligated to
qualify as a foreign corporation to do business under the laws of any
jurisdiction in which it is not then qualified or to file any general consent to
service or process), and do such other reasonable acts and things as may be
required of it to enable the Holder to consummate the disposition in such
jurisdiction of the securities covered by such Registration Statement;
(e) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such Registrable
Securities; and
(f) otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make available
to the Holder, as soon as reasonably practicable, but not later than 18 months
after the effective date of the Registration Statement, an earnings statement
covering the period of at least 12 months beginning with the first full month
after the effective date of such Registration Statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act.
It shall be a condition precedent to the obligation of the Company
to take any action pursuant to this Agreement in respect of the securities which
are to be registered at the request of the Holder that such Holder shall furnish
to the Company such information regarding the securities held by such Holder and
the intended method of disposition thereof as the Company shall reasonably
request and as shall be required in connection with the action taken by the
Company.
4. EXPENSES. All expenses incurred in complying with this Agreement,
including, without limitation, all registration and filing fees (including all
expenses incident to filing with the NASD), printing expenses, fees and
disbursements of counsel for the Company, expenses of any special audits
incident to or required by any such registration and expenses of complying with
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the securities or blue sky laws of any jurisdiction pursuant to Section 3(d),
shall be paid by the Company, except that:
(a) all such expenses in connection with any amendment or
supplement to the Registration Statement or prospectus filed more than 180 days
after the effective date of such Registration Statement because the Holder has
not effected the disposition of the securities requested to be registered shall
be paid by the Holder; and
(b) The Company shall not be liable for any fees, discounts or
commissions to any underwriter or any fees or disbursements of counsel for any
underwriter in respect of the securities sold by the Holder.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) In the event of any registration of any Registrable
Securities under the Securities Act pursuant to this Agreement, the Company
shall indemnify and hold harmless the Holder, the Holder's directors and
officers, and each other person (including each underwriter) who participated in
the offering of such Registrable Securities and each other person, if any, who
controls the Holder or such participating person within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which the Holder or any such director or officer or participating
person or controlling person may become subject under the Securities Act or any
other statute or at common law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any alleged untrue statement of any material fact contained, on the effective
date thereof, in any Registration Statement under which such securities were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto, or (ii)
any alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall
reimburse such holder or such director, officer or participating person or
controlling person for any legal or any other expenses reasonably incurred by
the Holder or such director, officer or participating person or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any actual or alleged untrue statement
or actual or alleged omission made in such Registration Statement, preliminary
prospectus, prospectus or amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by the Holder
specifically for use therein. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Holder or
such director, officer or participating person or controlling person, and shall
as to the Holder survive the transfer of such securities by the Holder.
(b) The Holder, by acceptance hereof, agrees to indemnify and
hold harmless the Company, its directors and officers and each other person, if
any, who controls the Company within the meaning of the Securities Act against
any losses, claims, damages or liabilities, joint or several, to which the
Company or any such director or officer or any such person may become subject
under the Securities Act or any other statute or at common law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon information in writing provided to the Company by the
Holder specifically for use in the following documents and contained, on the
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effective date thereof, in any Registration Statement under which securities
were registered under the Securities Act at the request of the Holder, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto. Notwithstanding the provisions of this paragraph (b) or
paragraph (c) below, the Holder shall not be required to indemnify any person
pursuant to this Section 5 or to contribute pursuant to paragraph (c) below in
an amount in excess of the amount of the aggregate net proceeds received by such
Holder in connection with any such registration under the Securities Act.
(c) If the indemnification provided for in this Section 5 from
the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(c) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
6. CERTAIN LIMITATIONS ON REGISTRATION RIGHTS. Notwithstanding the
other provisions of this Agreement, the Company shall not be obligated to
register the Registrable Securities of the Holder if, in the opinion of counsel
to the Company reasonably satisfactory to the Holder and its counsel (or, if the
Holder has engaged an investment banking firm, to such investment banking firm
and its counsel), the sale or other disposition of the Holder's Registrable
Securities, in the manner proposed by the Holder (or by such investment banking
firm), may be effected without registering such Registrable Securities under the
Securities Act.
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7. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company will not hereafter
enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the Holder in this Agreement.
(b) REMEDIES. The Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(c) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departure from the provisions hereof
may not be given unless the Company and the Holder has each provided written
consent to such amendment, modification, supplement, waiver or consent.
(d) NOTICE GENERALLY. Any notice, demand, request, consent,
approval, declaration, delivery or other communication hereunder to be made
pursuant to the provisions of this Agreement shall be sufficiently given or made
if in writing and either delivered in person with receipt acknowledged or sent
by registered or certified mail, return receipt requested, postage prepaid, or
by telecopy and confirmed by telecopy answerback, addressed as follows:
(i) If to the Holder, at
The Boeing Company
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Attn: Corporate Secretary
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Winston & ▇▇▇▇▇▇ LLP
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Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to the Company,
Access Integrated Technologies, Inc.
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Attention: General Counsel
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to:
▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP
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Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, telecopied and confirmed by telecopy
answer-back or three Business Days after the same shall have been deposited in
the United States mail.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties hereto.
(f) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) GOVERNING LAW; JURISDICTION. This Agreement shall be
governed by, construed and enforced in accordance with the laws of the State of
Delaware without giving effect to the conflict of laws provisions thereof.
(h) SEVERABILITY. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
(i) ENTIRE AGREEMENT. This Agreement, together with the
Purchase Agreement, represents the complete agreement and understanding of the
parties hereto in respect of the subject matter contained herein and therein.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
Access Integrated Technologies, Inc.
By:/s/ A. ▇▇▇▇ ▇▇▇▇
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Name: A. ▇▇▇▇ ▇▇▇▇
Title: President and
` Chief Executive Officer
The Boeing Company
By:/s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Director, Corporate Development
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