EXHIBIT 4.4
Issue Date: August 11,
2009
NEITHER THIS
SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL
OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE
OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
COMMON STOCK PURCHASE
WARRANT
To Purchase 750,000 Shares of Class
A Common Stock of
ACCESS INTEGRATED TECHNOLOGIES,
INC.
THIS COMMON STOCK PURCHASE WARRANT (the “
Warrant ”) certifies that, for value received,
Imperial Capital, LLC (the “ Holder ”), is
entitled, upon the terms and subject to the limitations on exercise
and the conditions hereinafter set forth, at any time on or after
February 11, 2010 (the “ Initial Exercise Date
”) and on or prior to the close of business on August 11,
2014 (the “ Termination Date ”) but not
thereafter, to subscribe for and purchase from Access Integrated
Technologies, Inc., a Delaware corporation (the “
Company ”), up to 750,000 shares (the “
Warrant Shares ”) of Class A Common Stock, par value
$0.001 per share, of the Company (the “ Common Stock
”). The purchase price of one share of Common
Stock under this Warrant shall be equal to the Exercise Price, as
defined in Section 2(b).
Section 1. Definitions
. Capitalized terms used and not otherwise defined
herein shall have the meanings set forth in that certain Engagement
Letter, dated April 20, 2009, by and between the Company and the
Holder.
Section 2. Exercise
.
(a) Exercise of
Warrant . Exercise of the purchase rights
represented by this Warrant may be made, in whole or in part, at
any time or times on or after the Initial Exercise Date and on or
before the Termination Date by delivery to the Company of a duly
executed facsimile copy of the notice of exercise, in the form
annexed hereto (the “ Notice of Exercise ”) (or
such other office or agency of the Company as it may designate by
notice in writing to the registered Holder at the address of such
Holder appearing on the books of the Company); provided ,
however , within 5 Trading Days of the date said Notice of
Exercise is delivered to the Company, the Holder shall have
surrendered this Warrant to the Company and the Company shall have
received payment of the aggregate Exercise Price of the
shares thereby purchased in the amount and manner specified in
Section 2(b).
(b) Exercise
Price . The exercise price of the Common Stock under
this Warrant shall be $1.37 (the “ Exercise Price
”), and is to be paid (x) in cash by wire transfer or
cashier’s check drawn on a United States bank, (y) by
surrender of Warrants as set forth in Section 2(c) or (z) by any
combination of the methods specified in clauses (x) or (y) of this
sentence.
(c) Cashless
Exercise . In lieu of payment of the Exercise Price
in cash, at the option of the Holder, as indicated on the Notice of
Exercise, the Holder may demand that the Company reduce the number
of Warrant Shares to be delivered to such Holder upon exercise of
the Warrants then being exercised so that the Holder receives a
number of Warrant Shares equal to the product of (i) the number of
Warrant Shares for which such Warrant would otherwise then be
nominally exercised if payment of the Exercise Price as of the date
of exercise were being made in cash and (ii) the Cashless Exercise
Ratio (as defined below). The Holder may use the
cashless exercise option described in this Section 2(c) whether or
not this Warrant is being exercised in whole or in part and whether
or not the Holder elects to pay any portion of the aggregate
Exercise Price in cash. Cashless Exercise Ratio means a
fraction, (i) the numerator of which is the excess of the Fair
Market Value (as defined below) per Warrant Share on the date of
exercise over the Exercise Price per Warrant Share as of the date
of exercise and (ii) the denominator of which is the Fair Market
Value (as defined below) per Warrant Share on the date of
exercise. Fair Market Value means the value determined
(x) by the closing price of the Common Stock on the Nasdaq Global
Market, or such other national stock exchange or automated
quotation system on which the Common Stock is then listed for
trading or quotation on the trading day preceding the date of the
Notice of Exercise; (y) if the determination under (x) is
unavailable, mutually by the Board of Directors of the Company (the
“ Board ”) and the Holder; or (z) if the
determination under (y) is unavailable, by a nationally recognized
investment bank, appraisal or accounting firm (whose fees and
expenses will be paid by the Holder) selected by mutual agreement
between the Board and the Holder.
(d) Mechanics of
Exercise .
(i) Authorization of
Warrant Shares . The Company covenants that all
Warrant Shares which may be issued upon the exercise of the
purchase rights represented by this Warrant will, upon exercise of
the purchase rights represented by this Warrant, be duly
authorized, validly issued, fully paid and nonassessable and free
from all taxes, liens and charges in respect of the issue thereof
(other than taxes in respect of any transfer occurring
contemporaneously with such issue).
(ii) Delivery of
Certificates Upon Exercise . Certificates for shares
purchased hereunder shall be transmitted by the transfer agent of
the Company to the Holder by physical delivery to the address
specified by the Holder in the Notice of Exercise, or by electronic
delivery under the Direct Registration System, within 3 Trading
Days from the receipt by the Company of all of the Notices of
Exercise, surrender of this Warrant and payment of the aggregate
Exercise Price as set forth above (“ Warrant Share
Delivery Date ”). This Warrant shall be deemed
to have been exercised on
the date the
Company has received all of the Notices of Exercise, this Warrant
and the full Exercise Price for the Warrant Shares being purchased
upon the exercise. The Warrant Shares shall be deemed to
have been issued, and Holder or any other Person so designated to
be named therein shall be deemed to have become a holder of record
of such shares for all purposes, as of the date the Warrant has
been exercised by payment to the Company of the Exercise Price and
all taxes required to be paid by the Holder, if any, pursuant to
Section 2(d)(vi) prior to the issuance of such shares, have been
paid.
(iii) Delivery of New Warrants
Upon Exercise . If this Warrant shall have been
exercised in part, the Company shall, within five Trading Days
after the time of delivery of the certificate or certificates, or
confirmation of electronic notation, representing Warrant Shares,
deliver to Holder a new Warrant evidencing the rights of Holder to
purchase the unpurchased Warrant Shares called for by this Warrant,
which new Warrant shall in all other respects be identical with
this Warrant.
(iv) Rescission Rights
. If the Company fails to cause its transfer agent to
transmit to the Holder a certificate or certificates, or
confirmation of electronic notation, representing the Warrant
Shares pursuant to this Section 2(d) by the 2
nd Trading Day immediately following the Warrant
Share Delivery Date, then the Holder will have the right to rescind
such exercise.
(v) No Fractional
Shares or Scrip . No fractional shares or scrip
representing fractional shares of Common Stock shall be issued upon
the exercise of this Warrant. As to any fraction of a
share of Common Stock which Holder would otherwise be entitled to
purchase upon such exercise, the Company shall pay a cash
adjustment in respect of such final fraction in an amount equal to
such fraction multiplied by the Exercise Price.
(vi) Charges, Taxes
and Expenses . Issuance of certificates for Warrant
Shares shall be made without charge to the Holder for any issue or
transfer tax or other incidental expense in respect of the issuance
of such certificate, all of which taxes and expenses shall be paid
by the Company, and such certificates shall be issued in the name
of the Holder or in such name or names as may be directed by the
Holder; provided , however , that in the event
certificates for Warrant Shares are to be issued in a name other
than the name of the Holder, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached
hereto duly executed by the Holder; and the Company may require, as
a condition thereto, the payment of a sum sufficient to reimburse
it for any expenses incidental thereto. The Holder shall
be responsible for all other tax liability that may arise as a
result of holding or transferring this Warrant or receiving Warrant
Shares upon exercise thereof.
(vii) Closing of Books
. The Company will not close its stockholder books or
records in any manner which prevents the timely exercise of this
Warrant, pursuant to the terms hereof.
Section 3. Certain
Adjustments .
(a) Fundamental
Transaction . If, at any time while this Warrant is
outstanding, (A) the Company effects any merger or consolidation of
the Company with or into another Person, (B) the Company effects
any sale of all or substantially all of its assets in one or a
series of related transactions, (C) any tender offer or exchange
offer (whether by the Company or another Person) is completed
pursuant to which holders of Common Stock are permitted to tender
or exchange their shares for other securities, cash or property, or
(D) the Company effects any reclassification of the Common Stock or
any compulsory share exchange pursuant to which the Common Stock is
effectively converted into or exchanged for other securities (other
than capital stock of the Company), cash or property (in any such
case, a “ Fundamental Transaction ”), then, upon
any subsequent exercise of this Warrant, the Holder shall have the
right to receive, for each Warrant Share that would have been
issuable upon such exercise immediately prior to the occurrence of
such Fundamental Transaction, at the option of the Holder, (a) upon
exercise of this Warrant, the number of shares of Common Stock of
the successor or acquiring corporation or of the Company, if it is
the surviving corporation, and any additional consideration (the
“ Alternate Consideration ”) receivable upon or
as a result of such reorganization, reclassification, merger,
consolidation or disposition of assets by a Holder of the number of
shares of Common Stock for which this Warrant is exercisable
immediately prior to such event or (b) if the Company is acquired
in an all cash transaction, cash equal to the value of this Warrant
as determined in accordance with the Black-Scholes option pricing
formula. For purposes of any such exercise, the
determination of the Exercise Price shall be appropriately adjusted
to apply to such Alternate Consideration based on the amount of
Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall
apportion the Exercise Price among the Alternate Consideration in a
reasonable manner reflecting the relative value of any different
components of the Alternate Consideration. If holders of
Common Stock are given any choice as to the securities, cash or
property to be received in a Fundamental Transaction, then the
Holder shall be given the same choice as to the Alternate
Consideration it receives upon any exercise of this Warrant
following such Fundamental Transaction. To the extent
necessary t
