EXHIBIT 4.10
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of January
9, 2004, by and among Access Integrated Technologies, Inc., a Delaware
corporation (the "Corporation"), and ▇▇▇▇ ▇▇▇▇▇▇ (the "STOCKHOLDER").
W I T N E S S E T H:
WHEREAS, the Corporation, Core Technology Services, Inc. and the
Stockholder have entered into that certain Stock Purchase Agreement, dated
December 22, 2003, pursuant to which the Corporation will, INTER ALIA, issue
shares of its Class A Common Stock, par value $.001 (the "COMMON STOCK") to the
Stockholder; and
WHEREAS, the Corporation has agreed to provide the Stockholder with
certain registration rights in respect of the Common Stock .
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the meanings ascribed to them in this Section 1:
"AGREEMENT" has the meaning set forth in the preamble hereof.
"COMMON STOCK" has the meaning set forth in the preamble hereof.
"CORPORATION" has the meaning set forth in the preamble hereof.
"DEMAND SHARES" means shares of the Corporation's common stock issuable
upon conversion of its preferred stock held as of the date hereof or issued as a
dividend or other distribution with respect to such preferred stock or upon
exercise of any warrants held by the holders of such preferred stock.
"PRIMARY SHARES" means at any time the authorized but unissued shares of
the Corporation's common stock.
"REGISTER," "REGISTERED" and "REGISTRATION" refer to a registration
effected by preparing and filing a Registration Statement and the declaration or
ordering of the effectiveness of such Registration Statement.
"REGISTRABLE SHARES" means all shares of all classes of the Corporation's
common stock issued and issuable upon the conversion of shares of its preferred
stock or the exercise of warrants outstanding or issuable from time to time;
PROVIDED, HOWEVER, that Registrable Shares shall not include those Shares that
(a) have been effectively registered under Section 5 of the Securities Act and
disposed of pursuant to a Registration Statement or (b) have been transferred
pursuant to Rule 144 under the Securities Act or any successor rule.
"REGISTRATION STATEMENT" means a registration statement on Form ▇-▇, ▇▇-▇
or S-3, or any successor form thereto, in compliance with the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"STOCKHOLDER" has the meaning set forth in the preamble hereof.
2. PIGGYBACK REGISTRATION RIGHTS.
(a) NOTICE OF PIGGYBACK REGISTRATION AND INCLUSION OF REGISTRABLE
SHARES. Subject to the terms of this Agreement, if the Corporation at any time
proposes for any reason to Register any shares of its common stock (either for
its own account or the account of a security holder) on a form that would be
suitable for a Registration involving solely Registrable Shares (except with
respect to registrations on Form S-4 or Form S-8 promulgated under the
Securities Act or any successor forms thereto), the Corporation will (i)
promptly give the Stockholder written notice thereof (which shall include a list
of the jurisdictions in which the Corporation intends to attempt to qualify such
securities under the applicable blue sky or other state securities laws) and
(ii) include in such Registration (and any related qualification under blue sky
laws or other compliance laws or regulations), and in any underwriting involved
therein, all of the Registrable Shares specified in a written request delivered
to the Corporation by any of the Stockholder within twenty (20) days after
delivery of such written notice from the Corporation.
(b) NOTICE OF UNDERWRITING IN PIGGYBACK REGISTRATION. If the
Registration of which the Corporation gives notice is for a Registered public
offering involving an underwriting, the Corporation shall so advise the
Stockholder as a part of the written notice given pursuant to Section 2(a)
hereof. In such event, the right of any such Stockholder to Registration shall
be conditioned upon such underwriting and the inclusion of such Stockholder's
Registrable Shares in such underwriting to the extent provided in this Section
2. The Stockholder proposing to distribute their Registrable Shares through such
underwriting shall (together with the Corporation and the other holders
distributing their securities through such underwriting) enter into an
underwriting agreement with the underwriter's representative for such offering.
The Stockholder shall have no right to participate in the selection of the
underwriters for an offering pursuant to this Section 2.
(c) MARKETING LIMITATION IN PIGGYBACK REGISTRATION. In the event the
underwriter's representative advises, in writing, the Corporation and the
Stockholder seeking Registration of their Registrable Shares pursuant to this
Section 2 that market factors (including, without limitation, the aggregate
number of shares of the Corporation's common stock requested to be Registered,
the general condition of the market, and the status of the persons proposing to
sell securities pursuant to the Registration) require a limitation of the number
of Shares to be underwritten, the underwriter's representative may, in the case
of any Registered public offering, exclude some or all Registrable Shares from
such Registration and underwriting in the manner set forth in Section 2(d)
hereof.
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(d) ALLOCATION OF SHARES IN PIGGYBACK REGISTRATION.
(i) In the event that the underwriter's representative limits the
number of shares to be included in a Registration pursuant to Section 2(c)
hereof, and such Registration is not a result of a demand made by the holders of
Demand Shares, the shares of the Corporation's capital stock (other than
Registrable Shares) held by officers of the Corporation and its subsidiaries
shall be excluded from such Registration and underwriting to the extent required
by such limitation. If a limitation of the number of shares is still required
after such exclusion, the number of Shares that may be included in such
Registration and underwriting shall be included in the following order: (A)
FIRST, the Primary Shares; and (B) SECOND, the Demand Shares; and (C) THIRD, all
other Registrable Shares (or, if necessary, such Registrable Shares PRO RATA
among the holders thereof (including the Stockholder) based upon the number of
Registrable Shares requested to be registered by each such holder).
(ii) In the event that the underwriter's representative limits the
number of shares to be included in a Registration pursuant to Section 2(c)
hereof, and such Registration is the result of a demand made by the holder of
Demand Shares, then the number of shares proposed to be included in such
Registration shall be included in the following order: (A) FIRST, the Demand
Shares; (B) SECOND, the Primary Shares; and (C) THIRD, all other Registrable
Shares (or, if necessary, such Registrable Shares PRO RATA among the holders
thereof based upon the number of Registrable Shares requested to be registered
by each such holder).
(e) WITHDRAWAL IN PIGGYBACK REGISTRATION. If any holder of
Registrable Shares disapproves of the terms of any such underwriting, such
person may elect to withdraw therefrom by written notice to the Corporation and
the underwriter's representative delivered at least seven (7) days prior to the
effective date of the Registration Statement. Any Registrable Shares or other
securities excluded or withdrawn from such underwriting shall be withdrawn from
such Registration.
3. REGISTRATION ON FORM S-3. Subject to Sections 4, 5, and 6 hereof, and
unless Rule 144 is available for effecting a proposed transfer of all of the
Registrable Shares of a holder, in the event that (a) the Corporation receives
from any holder a written request that the Corporation file a registration
statement on Form S-3 (or any successor form to Form S-3), or any similar
short-form registration statement, for a public offering of Registrable Shares,
the reasonably anticipated aggregate price to the public of which, net of
underwriting discounts and commissions, would exceed $1,000,000 and (b) the
Corporation is a registrant entitled to use Form S-3 to register the Registrable
Shares for such an offering, the Corporation will promptly give written notice
of the proposed registration to all other holders of Registrable Shares. As soon
as practicable thereafter, the Corporation will use its reasonable best efforts
to cause all Registrable Shares to be registered as may be so requested for the
offering on such form and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable Shares as are specified
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in such request, together with all or such portion of the Registrable Shares of
any holder or holders joining in such request as are specified in a written
request received by the Corporation within twenty (20) days after receipt of
such written notice from the Corporation.
4. EXPENSES OF REGISTRATION. All expenses incurred by the Corporation in
complying with Sections 2 and 3 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Corporation, fees and
expenses (including counsel fees) incurred in connection with complying with
state securities or "blue sky" laws, fees of the National Association of
Securities Dealers, Inc., fees of transfer agents and registrars, costs of
insurance and fees and disbursements of one counsel for the sellers of
Registrable Shares, but excluding any Selling Expenses, are called "Registration
Expenses". All underwriting discounts and selling commissions and seller counsel
fees applicable to the sale of Registrable Shares are called "Selling Expenses".
The Company will pay all Registration Expenses in connection with each
registration statement under Sections 2 and 3 hereof. All Selling Expenses in
connection with each registration statement under Sections 2 and 3 hereof shall
be borne by the participating sellers in proportion to the number of Registrable
Shares sold by each or as they may otherwise agree.
5. TERMINATION OF REGISTRATION RIGHTS. The rights to cause the
Corporation to register securities and to receive notices granted under Sections
2 and 3 hereof shall terminate (a) with respect to each Stockholder, upon such
Stockholder holding less than one (1%) percent of the outstanding common stock
of the Corporation and (b) with respect to each Stockholder, if such Stockholder
is eligible to sell all of such Stockholder's Registrable Shares under Rule 144
of the Securities Act within any three-month period without volume limitations,
or under Rule 144(k) thereunder.
6. REGISTRATION PROCEDURES AND OBLIGATIONS. Whenever required under this
Agreement to effect the Registration of any Registrable Shares, the Corporation
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the Securities and Exchange Commission a
Registration Statement with respect to such Registrable Shares and use its
reasonable best efforts to cause such Registration Statement to become
effective, and, upon the request of Stockholder of a majority of the Registrable
Shares registered thereunder, keep such Registration Statement effective for up
to one hundred twenty (120) days.
(b) Prepare and file with the Securities and Exchange Commission
such amendments and supplements to such Registration Statement and the
prospectus used in connection with such Registration Statement as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such Registration Statement.
(c) Furnish to Stockholder such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Shares owned by them.
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(d) Use its reasonable best efforts to register and qualify the
securities covered by such Registration Statement under such other securities or
blue sky laws of such jurisdictions as shall be reasonably requested by selling
Stockholder; PROVIDED, HOWEVER, that the Corporation shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions; and PROVIDED, FURTHER, that in the event any jurisdiction in
which the securities shall be qualified imposes a non-waivable requirement that
expenses incurred in connection with the qualification of the securities be
borne by selling Stockholder, such expenses shall be payable PRO RATA by selling
Stockholder.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Stockholder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Stockholder of Registrable Shares covered by such
Registration Statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Provide a transfer agent and registrar for all Registrable
Shares registered pursuant to such Registration Statement and a CUSIP number for
all such Registrable Shares, in each case not later than the effective date of
such Registration.
(h) Furnish, at the request of any Stockholder requesting
Registration of Registrable Shares pursuant to this Agreement, on the date that
such Registrable Shares are delivered for sale in connection with a Registration
pursuant to this Agreement, (i) an opinion, dated such date, of the counsel
representing the Corporation for the purposes of such Registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, and (ii) a letter dated such date, from the independent certified
public accountants of the Corporation, in form and substance as is customarily
given by independent certified public accountants to underwriters in an
underwritten public offering, addressed to the underwriters.
7. MISCELLANEOUS PROVISIONS.
7.1 TRANSFEREE RESTRICTIONS. Each Stockholder's rights hereunder may be
assigned only to a transferee acquiring in excess of 20,000 shares of Common
Stock. An assignee of any of the shares of Common Stock shall be bound by all of
the provisions of this Agreement applicable to the Stockholder from whom such
permitted assignee acquired such shares, whether or not such Stockholder
continues to be a Stockholder of the Corporation.
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7.2 NOTICE. Any and all notices, designations, consents, offers,
acceptances, or any other communication provided for herein shall be given in
writing by registered or certified mail which shall be addressed:
(a) if to the Corporation, to:
Access Integrated Technologies, Inc.
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Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: A. ▇▇▇▇ ▇▇▇▇, President (or to such other address
as may be designated by the Corporation in writing)
(b) with a copy (which shall not constitute notice) to:
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Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(c) If to the Stockholder, to:
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Except as otherwise provided in this Agreement, each such notice
shall be deemed given at the time it shall be mailed in any post office or
branch post office regularly maintained by the United States Government.
7.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings, oral and written, between
the parties hereto with respect to the subject matter hereof.
7.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and the respective successors
and permitted assigns of each of them, so long as they hold Shares.
7.5 AMENDMENTS; WAIVER. This Agreement may be amended only upon the prior
written consent of the Corporation and the Stockholder.
7.6 APPLICABLE LAW. This Agreement and the legal relations among the
parties hereto shall be governed by, and construed in accordance with, the laws
of the State of New York applicable to contracts made and to be wholly performed
therein.
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7.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
7.8 SEVERABILITY. If any provision or part thereof contained in this
Agreement is declared invalid by any court of competent jurisdiction or a
government agency having jurisdiction, such declaration shall not affect the
remainder of the provision or the other provisions and each shall remain in full
force and effect.
7.9 HEADINGS. The headings in this Agreement are for reference purposes
only and shall not in any way affect or limit the meaning or interpretation of
this Agreement.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the undersigned have executed this Registration
Rights Agreement on the date first above written.
ACCESS INTEGRATED TECHNOLOGIES, INC.
By: /s/ A. ▇▇▇▇ ▇▇▇▇
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Name: A. ▇▇▇▇ ▇▇▇▇
Title: President
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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