SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ACCESS INTEGRATED TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 22-3720962
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
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FIRST AMENDED AND RESTATED 2000 STOCK OPTION PLAN OF
ACCESS INTEGRATED TECHNOLOGIES, INC.
(Full Title of the Plan)
A. DALE MAYO
Chief Executive Officer and President
Access Integrated Technologies, Inc.
55 Madison Avenue, Suite 300
Morristown, NJ 07960
(Name and Address of Agent for Service)
(973) 290-0080
(Telephone Number, Including Area Code, of Agent for Service)
WITH A COPY TO:
JONATHAN K. COOPERMAN, ESQ.
Kelley Drye & Warren LLP
101 Park Avenue
New York, New York 10178
(212) 808-7800
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title of Securities Amount To Be Proposed Maximum Proposed Maximum Amount of
To Be Registered Registered Offering Price Per Aggregate Offering Registration Fee
Share(1) Price(1)
-------------------------- -------------------- ---------------------- ---------------------- ----------------------
Class A Common Stock, 850,000 Shares (2) $6.16 $5,236,000 $616.27
$0.001 par value
====================================================================================================================
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(1) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and (h) under the Securities Act of 1933, as amended. The price per share is estimated based on the average of the high and low trading prices for the Registrant's Class A common stock on April 22, 2005, as reported by the American Stock Exchange.
(2) Pursuant to Rule 416 promulgated under the Securities Act of 1933, as amended, this registration statement also relates to such indeterminate number of additional shares of Class A common stock of the Registrant as may be issuable in the event of a stock dividend, stock split, recapitalization, or other similar capital structure, merger consolidation, spin-off, split-off, spin-out, split-up, reorganization, partial or complete liquidation, or other distribution of assets, issuance of rights or warrants to purchase securities, or any other corporate transaction or event having an effect similar to any of the foregoing.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified by Part I of this Form S-8 Registration Statement (the "Registration Statement") will be sent or given to participants in the First Amended and Restated 2000 Stock Option Plan of Access Integrated Technologies, Inc., a Delaware corporation (the "Company"), as amended (the "Plan"), by the Company as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"). Such document(s) are not being filed with the Commission but constitute (along with the documents incorporated by reference into the Registration Statement pursuant to Item 3 of Part II hereof), a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act") and are hereby incorporated by reference in this Registration Statement:
o our annual report on Form 10-KSB for the year ended March 31, 2004, filed with the Commission on June 25, 2004;
o our quarterly report on Form 10-QSB for the quarter ended June 30, 2004, filed with the Commission on August 12, 2004;
o our quarterly report on Form 10-QSB for the quarter ended September 30, 2004, filed with the Commission on November 12, 2004;
o our quarterly report on Form 10-QSB for the quarter ended December 31, 2004, filed with the Commission on February 14, 2005;
o our proxy statement, dated September 22, 2004, filed with the Commission on September 21, 2004;
o our current report on Form 8-K, dated April 2, 2004, filed with the Commission on April 2, 2004;
o our current report on Form 8-K, dated April 29, 2004, filed with the Commission on April 29, 2004;
o our current report on Form 8-K, dated June 3, 2004, filed with the Commission on June 3, 2004;
o our current report on Form 8-K, dated June 7, 2004, filed with the Commission on June 8, 2004;
o our current report on Form 8-K, dated June 10, 2004, filed with the Commission on June 10, 2004;
o our current report on Form 8-K, dated August 12, 2004, filed with the Commission on August 12, 2004;
o our current report on Form 8-K, dated August 12, 2004, filed with the Commission on August 12, 2004;
o our current report on Form 8-K, dated September 14, 2004, filed with the Commission on September 14, 2004;
o our current report on Form 8-K, dated October 21, 2004, filed with the Commission on October 21, 2004;
o our current report on Form 8-K, dated November 1, 2004, filed with the Commission on November 1, 2004;
o our current report on Form 8-K/A, dated November 8, 2004, filed with the Commission on November 8, 2004;
o our current report on Form 8-K, dated November 10, 2004, filed with the Commission on November 10, 2004;
o our current report on Form 8-K, dated November 19, 2004, filed with the Commission on November 19, 2004;
o our current report on Form 8-K, dated December 27, 2004, filed with the Commission on December 27, 2004;
o our current report on Form 8-K/A, dated February 2, 2005, filed with the Commission on February 2, 2005;
o our current report on Form 8-K, dated February 10, 2005, filed with the Commission on February 10, 2005;
o our current report on Form 8-K, dated February 10, 2005, filed with the Commission on February 10, 2005;
o our current report on Form 8-K, dated March 8, 2005, filed with the Commission on March 9, 2005;
o the description of our Class A common stock contained in our registration statement on Form 8-A (File No. 001-31810), filed with the Commission under Section 12 of the Exchange Act on September 24, 2003; and
o all documents subsequently filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The amended and restated certificate of incorporation and the bylaws of the Company provide that the Company shall indemnify its officers, directors and
certain others to the fullest extent permitted by the Delaware General Corporation Law ("DGCL"). Section 145 of the DGCL, provides in pertinent part as follows:
(a) A corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this Section, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this Section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in subsections
(a) and (b) of this Section. Such determination shall be made with respect to a
person who is a director or officer at the time of such determination (1) by a
majority vote of directors who are not parties to such action, suit or
proceeding, even though less than a quorum, (2) by a committee of such directors
designated by majority vote of such directors, even though less than a quorum,
(3) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion or (4) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys' fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain insurance on behalf of any person, who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under this Section.
(h) For purposes of this Section, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Section with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued.
(i) For purposes of this Section, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation, which imposes duties on, or involves services by, such director, officer, employee, or agent of the corporation, which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this Section.
(j) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
As permitted by Section 102(b)(7) of the DGCL, the Company's fourth amended and restated certificate of incorporation eliminates the personal liability of each of the Company's directors to the Company and its stockholders for monetary damages for breaches of his or her fiduciary duties as a director except that the fourth amended and restated certificate of incorporation does not eliminate or limit the liability of a director to the extent that such elimination or limitation of liability is expressly prohibited by the DGCL as in effect at the time of the alleged breach of duty by such director.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
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4.1 First Amended and Restated 2000 Stock Option Plan of Access
Integrated Technologies, Inc. (incorporated by reference from
the Company's Registration Statement on Form SB-2 filed with the
Commission on August 6, 2003 (File No. 333-107711))
4.2 Amendment No. 1 to First Amended and Restated 2000 Stock Option
Plan of Access Integrated Technologies, Inc. (incorporated by
reference from the Company's Amendment No. 1 to its Registration
Statement on Form SB-2 filed with the Commission on September
22, 2003 (File No. 333-107711)
*4.3 Amendment No. 2 to First Amended and Restated 2000 Stock Option
Plan of Access Integrated Technologies, Inc.
*4.4 Form of Option Agreement
*5.1 Opinion of Kelley Drye & Warren LLP.
*23.1 Consent of Kelley Drye & Warren LLP (included in Exhibit 5.1).
*23.2 Consent of PricewaterhouseCoopers LLP.
*23.3 Consent of BDO Seidman, LLP.
*23.4 Consent of Singer Lewak Greenbaum & Goldstein LLP.
*24 Powers of Attorney (included on the signature page hereof).
------------------
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* Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which it offers or sells securities, a post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) Reflect in the prospectus any facts or events which, individually or together, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and
(iii) Include any additional or changed material information on the plan of distribution.
(2) For determining liability under the Securities Act, treat each post-effective amendment as a new registration statement of the securities offered, and the offering of such securities at that time to be the initial bona fide offering.
(3) To file a post-effective amendment to remove from registration any of the securities that remain unsold at the end of the offering.
(b) The undersigned Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act, may be permitted to directors, officers and controlling persons of the Company pursuant to any arrangement, provision or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Morristown, State of New Jersey, on this 25th day of April, 2005.
ACCESS INTEGRATED TECHNOLOGIES, INC.
By: /S/ A. DALE MAYO
----------------------------------------
A. Dale Mayo, President and Chief
Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and appoints A. Dale Mayo and Gary S. Loffredo, and each of them individually, his true and lawful agent, proxy and attorney-in-fact, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to (i) act on, sign and file with the Securities and Exchange Commission any and all amendments to the registration statement (which includes any additional registration statement under Rule 462(b)) together with all schedules and exhibits thereto, (ii) act on, sign and file with the Securities and Exchange Commission any and all exhibits to the registration statement and any and all exhibits and schedules thereto, (iii) act on, sign and file any and all such certificates, applications, registration statements, notices, reports, instruments, agreements and other documents necessary or appropriate in connection with the registration or qualification under foreign and state securities laws of the securities described in the registration statement or any amendment thereto, or obtain an exemption therefrom, in connection with the offerings described therein and (iv) take any and all such actions which may be necessary or appropriate in connection therewith, granting unto such agents, proxies and attorneys-in-fact, and each of them individually, full power and authority to do and perform each and every act and thing necessary or appropriate to be done, as fully for all intents and purposes as he or she might or could do in person, and hereby approving, ratifying and confirming all that such agents, proxies and attorneys-in-fact, any of them or any of his or her or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE(S) TITLE(S) DATE
/S/ A. DALE MAYO President, Chief Executive April 25, 2005
-------------------------- Officer and Chairman of the
A. Dale Mayo Board of Directors
(Principal Executive Officer)
/S/ KEVIN J. FARRELL Senior Vice President - Data April 25, 2005
-------------------------- Center Operations and Director
Kevin J. Farrell
/S/ BRETT E. MARKS Senior Vice President - Business April 25, 2005
-------------------------- Development and Director
Brett E. Marks
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/S/ GARY S. LOFFREDO Senior Vice President - Business April 25, 2005 -------------------------- Affairs, General Counsel, Gary S. Loffredo Secretary and Director /S/ BRIAN D. PFLUG Senior Vice President - Accounting April 25, 2005 -------------------------- and Finance (Principal Financial Brian D. Pflug and Accounting Officer) /S/ ROBERT DAVIDOFF Director April 25, 2005 -------------------------- Robert Davidoff /S/ WAYNE L. CLEVENGER Director April 25, 2005 -------------------------- Wayne L. Clevenger /S/ MATTHEW W. FINLAY Director April 25, 2005 -------------------------- Matthew W. Finlay /S/ GERALD C. CROTTY Director April 25, 2005 -------------------------- Gerald C. Crotty |
EXHIBIT
NUMBER DESCRIPTION
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4.3 Amendment No. 2 to First Amended and Restated 2000 Stock Option
Plan of Access Integrated Technologies, Inc.
4.4 Form of Option Agreement
5.1 Opinion of Kelley Drye & Warren LLP.
23.1 Consent of Kelley Drye & Warren LLP (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of BDO Seidman, LLP.
23.4 Consent of Singer Lewak Greenbaum & Goldstein LLP.
24 Powers of Attorney (included on the signature page hereof).
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Exhibit 4.3
AMENDMENT NO. 2
TO
FIRST AMENDED AND RESTATED
ACCESS INTEGRATED TECHNOLOGIES, INC. 2000 STOCK OPTION PLAN
AMENDMENT NO. 2, dated as of October 14, 2004 (this "Amendment"), to the First Amended and Restated 2000 Stock Option Plan (as amended, the "Plan") of Access Integrated Technologies, Inc., a Delaware corporation (the "Corporation").
WHEREAS, the Corporation maintains the Plan, effective as of June 1, 2000; and
WHEREAS, in order to provide the Corporation with the flexibility to be able to grant additional stock options to its employees, the Board of Directors of the Corporation deems it to be in the best interest of the Corporation and its stockholders to amend the Plan in order to increase the maximum number of shares of the Corporation's Class A Common Stock, par value $.001 per share, which may be issued and sold under the Plan from 600,000 shares to 850,000 shares.
NOW, THEREFORE, BE IT RESOLVED the Plan is hereby amended as follows:
1. The first and second sentences of Section 4.01 shall be revised and amended to read as follows:
"The maximum number of shares authorized to be issued under the Plan and available for issuance as Options shall be 850,000 shares of Common Stock. No more than 100,000 shares shall be granted as an Option to any Participant in any single calendar year."
2. This Amendment shall be effective as of the date first set forth above, which is the date that this Amendment was approved by a majority of the outstanding votes cast at the October 14, 2004 meeting of the holders of the Corporation's Class A Common Stock and Class B Common Stock.
3. In all respects not amended, the Plan is hereby ratified and confirmed and remains in full force and effect.
ACCESS INTEGRATED TECHNOLOGIES, INC.
By:/S/ A. DALE MAYO
---------------------------------------
A. Dale Mayo,
President, Chief Executive Officer and
Chairman of the Board of Directors
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Exhibit 4.4
STOCK OPTION AGREEMENT
as of ______________
The parties to this Incentive Stock Option Agreement (this "Agreement") are Access Integrated Technologies, Inc. (the "Company"), a Delaware corporation, and ___________ (the "Optionee"), an employee of the Company.
The Company desires to have the Optionee serve as an employee of the Company and to provide the Optionee with an incentive to put forth maximum effort for the success of the business.
The Company has adopted the Access Colo, Inc. 2000 Stock Option Plan (the "Plan"), as amended, to attract and retain highly competent key employees, directors and consultants and to provide an incentive in motivating these individuals to achieve long-term corporate objectives. Capitalized terms used in this Agreement, unless otherwise defined herein, shall have the meanings given to such terms in the Plan.
This Agreement sets forth the terms and conditions applicable to options to purchase shares of the Common Stock of the Company, par value $.001 per share (the "Common Stock"), granted to the Optionee under the Plan as of the date first above written (the "Grant Date").
Accordingly, intending to be legally bound hereby, the parties agree as follows:
ARTICLE I
GRANT OF OPTIONS
1.1 Subject to the terms and conditions of this Agreement and the Plan, the Company hereby grants to the Optionee as of the Grant Date the right and option to purchase from the Company up to, but not exceeding in the aggregate, ___________ shares of Common Stock, at an option price of _______________ per share (the "Options"), and for the period beginning on the Grant Date and ending on ______________ (the "Option Term").
1.2 The Options are incentive stock options within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended.
1.3 The Options shall be subject to the terms and conditions of the Plan as well as the provisions of this Agreement. The Plan, a copy of which has been provided to the Optionee, is incorporated by reference herein in its entirety. In the event of any conflict between the Plan and this Agreement, the provisions of the Plan shall govern.
ARTICLE II
VESTING, EXERCISE AND TAX WITHHOLDING
2.1 Unless sooner vested or terminated pursuant to this Agreement, the Options granted to the Optionee hereunder shall vest in accordance with the terms of Exhibit A attached hereto. On and after the date Options have vested, they may be exercised at any time and from time to time during the Option Term, subject to earlier termination in accordance with Article III. Upon the termination of any of the Options pursuant to Article III, the Options so terminated shall cease to be exercisable and the Optionee shall have no further rights under this Agreement with respect to the Options so terminated.
2.2 The Company, in its sole discretion, shall have the right (but shall not in any case be obligated), exercisable at any time after the Grant Date, to vest the Options, in whole or in part, prior to the time the Options would otherwise vest under the terms of this Agreement.
2.3 Vested Options shall be exercised by the Optionee (i) by delivering to the Company a Notice in the form set forth as Exhibit B hereto, together with a check payable to the order of the Company or such other consideration as may be appropriate pursuant to the Notice or (ii) in such other form as may be permitted by the Company.
2.4 The Company shall notify the Optionee of the amount of withholding tax or other tax, if any, that must be paid under federal and, where applicable, state and local law in connection with the exercise of the Options or the sale of shares of Common Stock subject to the Options. The Optionee shall meet his withholding requirement (i) by direct payment to the Company in cash of the amount of any taxes required to be withheld with respect to such exercise, or (ii) in such other form as may be permitted by the Company.
ARTICLE III
TERMINATION OF EMPLOYMENT
3.1 In the event of the termination of employment of the Optionee by the Optionee or the Company for any reason whatsoever other than death or permanent disability (as defined in Section 3.2), any Options that were vested prior to the date of such termination (and which were not previously exercised), together with any other Options designated in writing by the Committee, shall terminate on the earliest of (i) thirty days after the date of such termination, or (ii) the last day of the Option Term. Any Options that were not vested prior to the date of such termination and do not become vested pursuant to the immediately preceding sentence shall terminate as of the date of such termination and shall not be exercisable at any time thereafter. For purposes of this Article III, termination of employment with respect to a Participant who is a director or consultant and who is not otherwise an employee of the Company shall mean voluntary or involuntary termination of Board service or the consulting relationship, as the case may be, for any reason.
3.2 In the event of the termination of the employment of the Optionee by reason of death or permanent disability, any Options that were vested prior to the date of such termination (and which were not previously exercised), together with any other Options designated in writing by the Committee, shall terminate on the earliest of (i) one hundred eighty days after the date of such termination, or (ii) the last day of the Option Term. Any Options that were not vested prior to the date of such termination and do not become vested pursuant to the immediately preceding sentence shall terminate as of the date of such termination and shall not be exercisable at any time thereafter. As used in this Agreement, the term "permanent disability" means the Optionee being deemed to have suffered a disability that makes the Optionee eligible for immediate benefits under any long-term disability plan of the Company, as in effect from time to time.
3.3 In the event of termination of employment, the Company, in its sole discretion, shall have the right (but shall not in any case be obligated), exercisable on or at any time after the Grant Date, to permit an Option to be exercised, in whole or in part, after its expiration date described in Section 3.1 or Section 3.2, but not after the expiration of the Option Term.
3.4 In the event of a Change in Control (as defined in the Plan), all Options outstanding on the date of such Change in Control that have not previously vested or terminated under the terms of this Agreement shall become immediately and fully exercisable. Notwithstanding the foregoing, unless otherwise determined by the Board, no change in control of the Company shall be deemed to have occurred for purposes of determining a Participant's rights under this Plan if (i) the Participant is a member of a group that first announces a proposal which, if successful, would result in a Change of Control, which proposal (including any modifications thereof) is ultimately successful, or (ii) the Participant acquires a two percent or more equity interest in the entity that ultimately acquires the Company pursuant to the transaction described in clause (i) of this Section 3.4.
ARTICLE IV
MISCELLANEOUS
4.1 The number and kind of shares subject to outstanding Options and the option price for such shares shall be appropriately adjusted to reflect any stock dividend, stock split, combination or exchange of shares, merger, consolidation or other change in capitalization with a similar substantive effect upon the Options. The Company shall have the power and sole discretion to determine the amount of the adjustment to be made in each case.
4.2 In the event of a Merger in which the Company is not the surviving corporation or pursuant to which a majority of the shares which are of the same class as the shares that are subject to outstanding Options are exchanged for, or converted into, or otherwise become shares of another corporation or other consideration, the Committee shall have the sole discretion to determine that (i) the surviving, continuing, successor or purchasing corporation, as the case may be (the "Acquiring Corporation"), will either assume the Company's rights and obligations under this Option Agreement or substitute awards in respect of the Acquiring Corporation's stock for outstanding Options or (ii) the outstanding Options shall be cancelled in exchange for such consideration as the Committee shall approve (based on the value of the consideration received in the Merger by holders of the same class of shares that are subject to outstanding Options).
4.3 After any Merger in which the Company shall be a surviving corporation, the Company may grant substituted options pursuant to Section 424 of the Code, replacing old options granted under a plan of another party to the Merger whose shares or stock subject to the old Options may no longer be issued following the Merger. The foregoing adjustments and manner of application of the foregoing provisions shall be determined by the Company in its sole discretion. Any such adjustments may provide for the elimination of any fractional shares which might otherwise become subject to any Options.
4.4 Nothing contained in this Agreement shall be deemed to confer upon the Optionee, in his capacity as a holder of Options, any right to prevent or to approve or vote upon any of the corporate actions described in this Article IV. The existence of the Options granted hereunder shall not affect in any way the right or the power of the Company or its shareholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or prior preference stocks ahead of or affecting the Common Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
4.5 Whenever the term "the Optionee" is used in any provision of this Agreement under circumstances where the provision should logically be construed to apply to the executors, the administrators, or the person or persons to whom Options may be transferred by will or by the laws of descent and distribution, the term "the Optionee" shall be deemed to include such person or persons.
4.6 The Options granted hereunder are not transferable by the Optionee otherwise than by will or the laws of descent and distribution and are exercisable during the Optionee's lifetime only by him or her. No assignment or transfer of the Options granted hereunder, or of the rights represented thereby, whether voluntary or involuntary, by the operation of law or otherwise (except by will or the laws of descent and distribution), shall vest in the assignee or transferee any interest or right herein whatsoever, but immediately upon any such assignment or transfer the Options shall terminate and become of no further effect.
4.7 The Optionee shall not be deemed for any purpose to be a shareholder of the Company in respect of any shares as to which the Options shall not have been exercised as herein provided.
4.8 Nothing in this Agreement shall confer upon the Optionee any right to continue in the employ of the Company or shall affect the right of the Company to terminate the employment of the Optionee, with or without cause.
4.9 Nothing in this Agreement or otherwise shall obligate the Company to vest any of the Options, to permit the Options to be exercised other than in accordance with the terms hereof or to grant any waivers of the terms of this Agreement, regardless of what actions the Company, the Board or the Committee may take or waivers the Company, the Board or the Committee may grant under the terms of or with respect to any options now or hereafter granted to any other person or any other options granted to the Optionee.
4.10 Notwithstanding any other provision hereof, the Optionee shall not exercise the Options granted hereunder, and the Company shall not be obligated to issue any shares to the Optionee hereunder, if the exercise thereof or the issuance (or such purchase) of such shares would constitute a violation by the Optionee or the Company of any provision of any law or regulation of any governmental authority. Any determination in this connection by the Company shall be final and binding. The Company shall in no event be obligated to register any securities pursuant to the Securities Act of 1933 (as the same shall be in effect from time to time) or to take any other affirmative action in order to cause the exercise of the Options or the issuance of shares pursuant thereto to comply with any law or regulation of any governmental authority.
4.11 No amounts of income or other benefits received by the Optionee pursuant to this Agreement shall be considered compensation for purposes of any pension or retirement plan, insurance plan or any other employee benefit plan of the Company unless otherwise provided in such plan.
4.12 Every notice or other communication relating to this Agreement shall be in writing and shall be mailed to or delivered to the party for whom it is intended at such address as may from time to time be designated by it in a notice mailed or delivered to the other party as herein provided; provided, however, that unless and until some other address be so designated, all notices or communications by the Optionee to the Company shall be mailed or delivered to the Company at its office at 55 Madison Avenue, Morristown, New Jersey 07960 and all notices or communications by the Company to Optionee may be given to the Optionee personally or may be mailed to him or her.
4.13 This Agreement shall be governed by the laws of the State of Delaware applicable to agreements made and performed wholly within the State of Delaware (regardless of the laws that might otherwise govern under applicable conflicts of laws principles).
4.14 As used in this Agreement, unless the context otherwise
requires (i) references to "Articles" or "Sections" are to articles or sections
of this Agreement, (ii) "hereof", "herein", "hereunder" and comparable terms
refer to this Agreement in its entirety and not to any particular part of this
Agreement, (iii) references to any gender include references to all genders,
(iv) "including" means including without limitation, and (v) headings of the
various articles and sections are for convenience of reference only.
4.15 The Optionee agrees and acknowledges that he or she shall be obligated to cooperate with the Company and the underwriters in connection with any public offering of the Company's securities and any transactions relating thereto and shall execute and deliver such agreements and documents, including without limitation, a lock-up agreement, as may be requested by the Company or the underwriters. The Optionee's obligations under this Section 4.15 shall apply to any shares of Common Stock issued under the Plan as well as to any and all other securities of the Company or its successor for which such Common Stock may be exchanged or into which such Common Stock may be converted.
4.16 Stock purchased pursuant to this Agreement shall be subject to the terms of the Shareholders Agreement, dated as of September 1, 2000 (the "Shareholders Agreement"), as it may be amended from time to time, or any successor agreement among the Company and its stockholders. No certificates evidencing such stock shall be delivered until the owner thereof has evidenced his acceptance of such Agreement and any and all provisions thereof in writing. Certificates shall be indorsed with appropriate notice of applicability of the Shareholders Agreement.
4.17 This Agreement sets forth a complete understanding between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings with respect thereto. Except as expressly set forth in this Agreement, the Company makes no representations, warranties or covenants to the Optionee with respect to this Agreement or its subject matter, including with respect to (i) the current or future value of the shares subject to the Options and (ii) whether the option price is equal to, less than or greater than the fair market value of a share of Common Stock. Any modification, amendment or waiver to this Agreement will be effective only if it is in writing signed by the Company and the Optionee. The failure of any party to enforce at any time any provision of this Agreement shall not be construed to be a waiver of that or any other provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
ACCESS INTEGRATED TECHNOLOGIES, INC.
By:___________________________
Title: President/CEO
OPTIONEE:
EXHIBIT A
VESTING SCHEDULE
Cumulative Percentage
DATE OF VESTING OF OPTIONS VESTING
-------------- ------------------
|
EXHIBIT B
EXERCISE OF STOCK OPTION
Pursuant to the provisions of the Stock Option Agreement entered into as of __________ 2005 between Access Integrated Technologies, Inc. (the "Company") and ___________, Optionee (the "Agreement"), I hereby exercise the Stock Option granted under the terms of the Agreement to the extent of _____ shares of the Common Stock of the Company (the "Shares"). I deliver to the Company herewith the following in payment for the Shares:
METHOD OF PAYMENT (check one of the following):
|_| I have enclosed $_________________ in full payment for the option shares and any applicable withholding.
OR
|_| I have enclosed stock certificate no(s) _____________ together
with stock powers endorsed to the Company, representing
____________ shares of the Company's Common Stock.
OR
|_| I have given irrevocable instructions to a broker to deliver prompt
payment of the exercise price for the option shares and any
applicable withholding.
OR
|_| A combination of the above methods or other form of payment
approved by the Committee
(describe):_____________________________________________
Date: ______________________ _____________________________________
Optionee
_____________________________________
Address
_____________________________________
Social Security Number
|
EXHIBIT 5.1
[LETTERHEAD OF KELLEY DRYE & WARREN LLP]
April 25, 2005
Access Integrated Technologies, Inc.
55 Madison Avenue, Suite 300
Morristown, NJ 07960
Ladies and Gentlemen:
We are acting as counsel to Access Integrated Technologies, Inc., a Delaware corporation (the "Company"), in connection with the preparing and filing of a registration on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended ("Act"), with the Securities and Exchange Commission (the "Commission") relating to the registration of 850,000 shares of Class A common stock, $0.001 par value per share (the "Shares"), of the Company to be issued pursuant to First Amended and Restated 2000 Stock Option Plan of the Company, as amended (the "Plan").
In connection with this opinion, we have examined and relied upon copies certified or otherwise identified to our satisfaction of: (i) the Plan; (ii) the Registration Statement, together with exhibits and schedules thereto, in the form filed with the Commission; (ii) the Company's Fourth Amended and Restated Certificate of Incorporation, (iii) the Company's By-Laws; and (iv) the minute books and other records of corporate proceedings of the Company, as made available to us by officers of the Company; and have reviewed such matters of law as we have deemed necessary or appropriate for the purpose of rendering this opinion.
For purposes of this opinion we have assumed the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the legal capacity of all natural persons, the genuineness of all signatures on all documents examined by us. As to certain factual matters material to the opinion expressed herein, we have relied to the extent we deemed proper upon representations, warranties and statements as to factual matters of officers and other representatives of the Company. Our opinion expressed below is subject to the qualification that we express no opinion as to any law other than the General Corporation Law of the State of Delaware and the federal laws of the United States of America. Without limiting the foregoing, we express no opinion with respect to the applicability thereto or effect of municipal laws or the rules, regulations or orders of any municipal agencies within any such state.
Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, it is our opinion that the Shares to be issued by the Company pursuant to the Plan have been duly authorized and reserved for issuance and, when certificates for the Shares have been duly executed by the Corporation, countersigned by a transfer agent, duly registered by a registrar for the Shares and issued and paid for in accordance with the terms of the Plan, the Shares will be validly issued, fully paid and non-assessable.
This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. We assume no obligation to revise or supplement this opinion should the present General Corporation Law of the State of Delaware or the federal laws of the United States of America be changed by legislative action, judicial decision or otherwise.
We hereby consent to the filing of this letter as an exhibit to the Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.
This opinion is furnished to you in connection with the filing of the Registration Statement and is not to be used, circulated, quoted or otherwise relied upon for any other purpose.
Very truly yours,
KELLEY DRYE & WARREN LLP
By: /s/ Kelley Drye & Warren LLP
----------------------------
A Member of the Firm
|
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated June 9, 2004 relating to the consolidated financial statements of Access Integrated Technologies, Inc., which appears in Access Integrated Technologies, Inc.'s Annual Report on Form 10-KSB for the year ended March 31, 2004.
/s/ PricewaterhouseCoopers LLP Florham Park, New Jersey April 22, 2005 |
Exhibit 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Access Integrated Technologies, Inc.
Morristown, New Jersey
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated July 3, 2003, relating to the financial statements of Hollywood Software, Inc., which appears in the Access Integrated Technologies, Inc. Current Report filed on Form 8-K dated March 8, 2005.
/s/ BDO Seidman, LLP Los Angeles, California April 21, 2005 |
Exhibit 23.4
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement of Access Integrated Technologies, Inc. on Form S-8 of our report, dated January 28, 2005 of the FiberSat Global Services, LLC financial statements for the year ended December 31, 2003, appearing in the current report on Form 8-K/A of Access Integrated Technologies, Inc., filed with the SEC on February 2, 2005.
/s/ Singer Lewak Greenbaum & Goldstein LLP Los Angeles, California April 22, 2005 |