EXHIBIT 10.4
SERVICES AGREEMENT
THIS SERVICES
AGREEMENT (this “ Agreement ”) is made as of
this 11th day of August 2009 by and between Access Integrated
Technologies, Inc. d/b/a Cinedigm Digital Cinema Corp. (the “
Company ”) and Aquifer Capital Group, LLC (“
Aquifer ”).
R E C I T A L S
WHEREAS, the
Company desires to engage Aquifer to perform certain services for
the Company, and Aquifer desires to accept such engagement,
pursuant to this Agreement upon the terms and conditions set forth
herein.
NOW, THEREFORE,
in consideration of the mutual covenants and agreements contained
herein, the parties hereto agree as follows:
1.
Scope of Services . During the Term (as defined
below), Aquifer shall provide financial advisory
services (the “ Services ”) for a proposed
transaction (the “ Transaction ”) pursuant to
which the Company intends to repurchase or otherwise
modify the Company’s outstanding 10% Senior Notes due 2010
(the “ Notes ”). The Services provided by
Aquifer shall include the negotiation of the
Transaction with the holders of the Notes and the
structuring of the Transaction, at the request and direction of the
Company, pursuant to the terms and conditions of this
Agreement. Aquifer shall devote its time and effort
reasonably required to the performance of the Services and shall be
available for calls and/or meetings with the Company and/or the
holders of the Notes as reasonably requested from time to time by
the Company.
2.
Term . The term (" Term ") of this
Agreement shall commence on the date of this Agreement and continue
through and until the earlier of (i) the consummation of the
Transaction or (ii) August 14, 2009, unless sooner terminated
pursuant to this Agreement.
3.
Compensation; Expenses .
(a) As
compensation for the Services, upon consummation of the
Transaction, the Company shall pay Aquifer a fee equal to 200,000
shares of the Company’s Class A Common Stock (the “
Common Stock ”), 100,000 of which shares will be
issued to Adam M. Mizel and 100,000 of which shares will be issued
to Aquifer Opportunity Fund, L.P.
(b) The
Company shall reimburse Aquifer for its direct out-of-pocket
reasonable expenses arising from Aquifer’s provision of the
Services; provided that such expenses have been prior
approved in writing by the Company.
4.
Termination . Upon expiration of the Term without
the Transaction having been consummated, the Parties may agree in
writing to extend the Term. Upon termination of this
Agreement upon expiration of the Term, whether or not so extended,
without the Transaction having been consummated, the Company shall
only be obligated to pay Aquifer any expenses
incurred prior
to such termination pursuant to Section 3(b) of this Agreement, but
not any compensation.
5.
Confidential Information .
(a) In
connection with the performance of the Services, the Company may
disclose to Aquifer certain confidential and proprietary data and
information. Aquifer agrees that the following terms and
conditions shall apply to the delivery, disclosure and use of
certain technology, know-how, data and/or other information
relating to the Company’s (or any affiliate’s) current
and/or proposed products or services, including, but not limited
to, the Company’s research, products, services, compilations,
techniques, development efforts, inventions, processes, designs,
drawings, marketing or finances, and all other information (the
“ Confidential Information ”) disclosed by the
Company to Aquifer; provided that (i) any Confidential Information
disclosed in written or other tangible form is marked as
confidential, and (ii) all oral and/or intangible disclosures shall
be deemed to include Confidential Information unless expressly
confirmed in writing to not be Confidential
Information. Notwithstanding the foregoing, Confidential
Information does not include information that:
(i) Aquifer
can establish by competent documentation was known to Aquifer
without restriction prior to disclosure by the Company or was
independently developed by Aquifer without use of the Confidential
Information;
(ii) is
now in, or later comes into, the public domain through no fault of
Aquifer;
(iii) is
disclosed to Aquifer without restriction on disclosure by a third
party that, to Aquifer’s knowledge, is not bound by
confidentiality obligations with the Company; or
(iv) is
required by operation of law to be disclosed by Aquifer, provided,
however, that the Company is given reasonable advance notice of the
intended disclosure and an opportunity to challenge such legal
requirement(s). In the event that Aquifer is requested in a
judicial, administrative or governmental proceeding to disclose any
of the Confidential Information, Aquifer shall promptly so notify
the Company so
