As filed with the Securities and Exchange Commission on March 11, 2005
Registration No. 333-___________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ACCESS INTEGRATED TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-3720962
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
55 Madison Avenue, Suite 300
Morristown, NJ 07960
(973) 290-0080
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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A. DALE MAYO
Chief Executive Officer and President
Access Integrated Technologies, Inc.
55 Madison Avenue, Suite 300
Morristown, NJ 07960
(973) 290-0080
(Name, address, including zip code and 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
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this registration statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED AMOUNT TO BE PRICE PER OFFERING REGISTRATION
REGISTERED (1) (2) SHARE (3) PRICE FEE
Class A Common Stock,
par value $.001 per share (3) 4,593,869 $4.275 $19,638,789.97 $2,312.00
(1) Includes the registration for resale of (i) 2,334,152 shares, 125%
of 1,867,322 shares issuable upon conversion of convertible
debentures, all of which convertible debentures were issued to
investors pursuant to a Securities Purchase Agreement dated as of
February 9, 2005 (the "Purchase Agreement"), (ii) 700,246 shares,
125% of 560,197 shares issuable upon exercise of outstanding
warrants, all of which warrants were issued to investors pursuant to
the Purchase Agreement, (iii) 571,170 shares, 125% of 456,936 shares
issuable as payment of interest on the convertible debentures
pursuant to the Purchase Agreement; and (iv) 988,301 shares that
were issued to certain accredited investors under the November 2004
PIPE (as defined in page 5 of "Our Business" section below) and to
certain members of the FiberSat Global Services, LLC under the
FiberSat Acquisition (as defined in page 6 of "Our Business" section
below) who exercised their piggyback registration rights (see
footnotes to the "Selling Stockholders" table in page 18).
(2) Pursuant to Rule 416 under the Securities Act of 1933, as amended,
the registrant is also registering such additional indeterminate
number of shares of Class A common stock as may become issuable by
virtue of anti-dilution provisions contained in the convertible
debentures.
(3) The price is estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) and represents the average
high and low trading prices of the Class A common stock as reported
on the American Stock Exchange on March 8, 2005.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
Subject to Completion, dated March 11, 2005
PROSPECTUS
ACCESS INTEGRATED TECHNOLOGIES, INC.
4,593,869 SHARES OF CLASS A COMMON STOCK
This prospectus may be used by selling stockholders of Access Integrated
Technologies, Inc., which stock holders purchased (i) 1,867,322 shares of our
Class A common stock issuable upon the conversion of convertible debentures in
our February 2005 private offering, (ii) 560,197 shares of our Class A common
stock issuable upon the exercise of warrants issued to those security holders
and (iii) 456,936 shares issuable as payment of interest on the convertible
debentures. We are contractually obligated under our registration rights
agreements with such selling stockholders in our February 2005 private offering
to register 125% of the shares they may resell under such registration rights
agreements. This prospectus may also be used by selling stockholders who
exercised their piggyback registration rights with regard to 988,301 shares of
our Class A common stock that they acquired in our November 2004 private
offering and in our acquisition of substantially all of FiberSat Global
Services, LLC's assets.
The shares of our Class A common stock offered hereby may be sold from
time to time by one or more of the selling stockholders. No selling stockholder
is required to offer or sell any shares of our Class A common stock pursuant to
this prospectus. The selling stockholders anticipate that, if and when offered
and sold, the shares of our Class A common stock will be offered and sold in
transactions effected on the American Stock Exchange at then prevailing market
prices. The selling stockholders reserve the right, however, to offer and sell
shares of our Class A common stock on any other national securities exchange on
which our Class A common stock may become listed or in the over-the-counter
market, in each case at then prevailing market prices, or in privately
negotiated transactions at prices then to be negotiated.
We will not receive any proceeds from the offer and sale of any shares
of our Class A common stock by the selling stockholders pursuant to this
prospectus, other than payment of the exercise price of the warrants. All
proceeds from sales of shares of our Class A common stock pursuant to this
prospectus will be paid directly to the selling stockholders and will not be
deposited in an escrow, trust or other similar arrangement. We will bear all of
the expenses in connection with the registration of the shares of our Class A
common stock offered hereby, including legal and accounting fees. No discounts,
commissions or other compensation will be allowed or paid by the selling
stockholders or us in connection with sales of the shares of our Class A common
stock offered hereby, except that usual and customary brokers' commissions or
dealers' discounts may be paid or allowed by the selling stockholders.
The shares of our Class A common stock are listed for trading on the
American Stock Exchange under the symbol "AIX". On March 10, 2005, the last
reported sale price of our Class A common stock was $4.40 per share.
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INVESTING IN OUR CLASS A COMMON STOCK INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" BEGINNING ON PAGE 8.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this prospectus is _____________, 2005.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed
with the SEC utilizing a shelf registration process. Under this shelf
registration process, selling stockholders may, from time to time, offer and
sell shares of our Class A common stock pursuant to this prospectus. It is
important for you to read and consider all of the information contained in this
prospectus and any applicable prospectus supplement before making a decision
whether to invest in our Class A common stock. You should also read and consider
the information contained in the documents that we have incorporated by
reference as described in "Where You Can Find More Information" and
"Incorporation of Certain Documents By Reference" in this prospectus.
You should rely only on the information provided in this prospectus and
any applicable prospectus supplement, including the information incorporated by
reference. We have not authorized anyone to provide you with additional or
different information. If anyone provides you with additional, different or
inconsistent information, you should not rely on it. We are not offering to sell
or soliciting offers to buy, and will not sell, any securities in any
jurisdiction where it is unlawful. You should assume that the information
contained in this prospectus or in any prospectus supplement, as well as
information contained in a document that we have previously filed or in the
future will file with the SEC and incorporate by reference in this prospectus or
any prospectus supplement, is accurate only as of the date of this prospectus,
the applicable prospectus supplement or the document containing that
information, as the case may be. Our financial condition, results of operations,
cash flows or business may have changed since that date.
WHERE YOU CAN FIND MORE INFORMATION
We are required to file periodic reports, proxy statements and other
information relating to our business, financial and other matters with the SEC
under the Securities Exchange Act of 1934. Our filings are available to the
public over the Internet at the SEC's web site at HTTP://WWW.SEC.GOV. You may
also read and copy any document we file with the SEC at, and obtain a copy of
any such document by mail from, the SEC's public reference room located at 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed charges. Please call
the SEC at 1-800-SEC-0330 for further information on the public reference room
and its charges.
We have filed with the SEC a registration statement on Form S-3 under
the Securities Act of 1933 with respect to our securities described in this
prospectus. References to the "REGISTRATION STATEMENT" or the "REGISTRATION
STATEMENT OF WHICH THIS PROSPECTUS IS A PART" mean the original registration
statement and all amendments, including all schedules and exhibits. This
prospectus does not, and any prospectus supplement will not, contain all of the
information in the registration statement because we have omitted parts of the
registration statement in accordance with the rules of the SEC. Please refer to
the registration statement for any information in the registration statement
that is not contained in this prospectus or a prospectus supplement. The
registration statement is available to the public over the Internet at the SEC's
web site described above and can be read and copied at the locations described
above.
Each statement made in this prospectus or any prospectus supplement
concerning a document filed as an exhibit to the registration statement is
qualified in its entirety by reference to that exhibit for a complete
description of its provisions.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "INCORPORATE BY REFERENCE" in this prospectus the
information contained in other documents filed separately with the SEC. This
means that we can disclose important information to you by referring you to
other documents filed with the SEC that contain such information. The
information incorporated by reference is an important part of this prospectus
and prospectus supplement. Information disclosed in documents that we file later
with the SEC will automatically add to, update and change information previously
disclosed. If there is additional information in a later filed document or a
conflict or inconsistency between information in this prospectus or a prospectus
supplement and information incorporated by reference from a later filed
document, you should rely on the information in the later dated document.
We incorporate by reference the documents listed below (and the
documents incorporated by reference therein) that we have previously filed, and
any documents that we may file in the future, with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, until the offerings contemplated by this
prospectus are completed:
o our annual report on Form 10-KSB for the year ended March 31, 2004,
filed with the SEC on June 25, 2004;
o our quarterly report on Form 10-QSB for the three months ended June
30, 2004, filed with the SEC on August 12, 2004;
o our quarterly report on Form 10-QSB for the three months ended
September 30, 2004, filed with the SEC on November 12, 2004;
o our quarterly report on Form 10-QSB for the three months ended
December 31, 2004, filed with the SEC on February 14, 2005;
o our proxy statement, dated September 22, 2004, filed with the SEC on
September 21, 2004;
o our current report on Form 8-K, dated April 2, 2004, filed with the
SEC on April 2, 2004;
o our current report on Form 8-K, dated April 29, 2004, filed with the
SEC on April 29, 2004;
o our current report on Form 8-K, dated June 3, 2004, filed with the SEC
on June 3, 2004;
o our current report on Form 8-K, dated June 7, 2004, filed with the SEC
on June 8, 2004;
o our current report on Form 8-K, dated June 10, 2004, filed with the
SEC on June 10, 2004;
o our current report on Form 8-K, dated August 12, 2004, filed with the
SEC on August 12, 2004;
o our current report on Form 8-K, dated August 12, 2004, filed with the
SEC on August 12, 2004;
o our current report on Form 8-K, dated September 14, 2004, filed with
the SEC on September 14, 2004;
o our current report on Form 8-K, dated October 21, 2004, filed with the
SEC on October 21, 2004;
o our current report on Form 8-K, dated November 1, 2004, filed with the
SEC on November 1, 2004;
o our current report on Form 8-K/A, dated November 8, 2004, filed with
the SEC on November 8, 2004;
o our current report on Form 8-K, dated November 10, 2004, filed with
the SEC on November 10, 2004;
o our current report on Form 8-K, dated November 19, 2004, filed with
the SEC on November 19, 2004;
o our current report on Form 8-K, dated December 27, 2004, filed with
the SEC on December 27, 2004;
o our current report on Form 8-K/A, dated February 2, 2005, filed with
the SEC on February 2, 2005;
o our current report on Form 8-K, dated February 10, 2005, filed with
the SEC on February 10, 2005;
o our current report on Form 8-K, dated February 10, 2005, filed with
the SEC on February 10, 2005;
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o our current report on Form 8-K, dated March 8, 2005, filed with the
SEC on March 9, 2005; and
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 SEC under Section 12 of the Exchange Act on September 24, 2003.
Any statement made in this prospectus, a prospectus supplement or a
document incorporated by reference in this prospectus or a prospectus supplement
will be deemed to be modified or superseded for purposes of this prospectus and
any applicable prospectus supplement to the extent that a statement contained in
an amendment to the registration statement, any subsequent prospectus supplement
or in any other subsequently filed document incorporated by reference herein or
therein adds, updates or changes that statement. Any statement so affected will
not be deemed, except as so affected, to constitute a part of this prospectus or
any applicable prospectus supplement.
You may obtain a copy of these filings, excluding exhibits (but
including exhibits that are specifically incorporated by reference), free of
charge, by oral or written request directed to: Access Integrated Technologies,
Inc., 55 Madison Avenue, Suite 300, Morristown, NJ 07960, Attention: General
Counsel, Telephone (973) 290-0080.
FORWARD-LOOKING STATEMENTS
Various statements contained in this prospectus or incorporated by reference
into this prospectus constitute "forward-looking statements" within the meaning
of the Private Securities Litigation Reform Act of 1995. Forward-looking
statements are based on current expectations and are indicated by words or
phrases such as "believe," "expect," "may," "will," "should," "seek," "plan,"
"intend" or "anticipate" or the negative thereof or comparable terminology, or
by discussion of strategy. Forward-looking statements represent as of the date
of this prospectus our judgment relating to, among other things, future results
of operations, growth plans, sales, capital requirements and general industry
and business conditions applicable to us. Such forward-looking statements are
based largely on our current expectations and are inherently subject to risks
and uncertainties. Our actual results could differ materially from those that
are anticipated or projected as a result of certain risks and uncertainties,
including, but not limited to, a number of factors, such as:
o successful integration of acquired businesses;
o the effect of our indebtedness on our financial condition and
financial flexibility, including, but not limited to, the ability to
obtain necessary financing for our business;
o economic and market conditions;
o the performance of our targeted markets;
o changes in business relationships with our major customers;
o competitive product and pricing pressures; and
o the other risks and uncertainties that are described in this
prospectus and from time to time in our filings with the SEC.
Except as otherwise required to be disclosed in periodic reports required to be
filed by public companies with the SEC pursuant to the SEC's rules, we have no
duty to update these statements, and we undertake no obligation to publicly
update or revise any forward-looking statements, whether as a result of new
information, future events or otherwise. In light of these risks and
uncertainties, we cannot assure you that the forward-looking information
contained in this prospectus will in fact transpire.
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PROSPECTUS SUMMARY
THIS SUMMARY HIGHLIGHTS INFORMATION CONTAINED ELSEWHERE IN THIS
PROSPECTUS, ANY PROSPECTUS SUPPLEMENT AND THE DOCUMENTS INCORPORATED BY
REFERENCE. IT DOES NOT CONTAIN ALL OF THE INFORMATION THAT YOU SHOULD CONSIDER
BEFORE MAKING A DECISION TO INVEST IN OUR CLASS A COMMON STOCK. YOU SHOULD READ
CAREFULLY THE ENTIRE PROSPECTUS, ANY APPLICABLE PROSPECTUS SUPPLEMENT AND THE
DOCUMENTS INCORPORATED BY REFERENCE, INCLUDING "RISK FACTORS" AND THE
CONSOLIDATED FINANCIAL STATEMENTS AND NOTES THERETO INCLUDED ELSEWHERE OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT.
In this prospectus, "AccessIT", "we," "us," "our" and the "Company" refer to
Access Integrated Technologies, Inc. and its subsidiaries unless the context
otherwise requires.
OUR BUSINESS
AccessIT was organized on March 31, 2000 and we are in the business of providing
software services and technology solutions to the motion picture industry, and
operating Internet data centers. Recently, we have actively expanded into new
and interrelated business areas relating to the delivery and management of
digital cinema content to entertainment venues worldwide. These businesses,
supported by our Internet data center business, have become our primary
strategic focus.
Our business focus is to create a secure, managed and complete system that
consists of software to book, track and perform accounting functions for digital
content in movie theatres, deliver digital content to multiple locations and
provide the content management software for managing all brands of in-theatre
playback systems and projection systems for the digital cinema marketplace. This
system is designed to enable the motion picture industry to move from the analog
world to the digital world. The system is intended to use all of our businesses:
MEDIA SERVICES
o DIGITAL MEDIA DELIVERY - digital media managed delivery services and
theatre management player software for use in theatres from Access
Digital Media, Inc. ("AccessDM") our wholly owned subsidiary, and
satellite delivery services from FiberSat Global Services, Inc.
("FiberSat"), our wholly owned subsidiary. ADM Cinema Corporation
("ADM Cinema"), our wholly owned subsidiary which acquired the
Pavilion Theatre/Entertainment Complex located in the Park Slope
section of Brooklyn, New York (the "Pavilion Theatre"), will utilize
our digital media managed delivery services and media player software
products; and
o MOVIE DISTRIBUTION AND EXHIBITOR SOFTWARE - Hollywood Software, Inc.
("Hollywood SW"), our wholly owned subsidiary, develops and licenses
distribution and exhibitor software products and services.
DATA CENTER SERVICES
o DATA CENTERS - AccessIT's 10 Internet data centers ("IDCs" or "data
centers"), including redundant sites in Los Angeles and New York City;
and
o MANAGED SERVICE OFFERINGS- managed storage and network and systems
management services by Core Technology Services, Inc. ("Core"), our
wholly owned subsidiary, and AccessIT.
Our system provides a digital content owner with the secure delivery of
multiple files to multiple locations throughout the world with proactive
notification and security management. Our system also provides the digital
content exhibitor with access to digital content, freedom to choose what to play
and when to play it with proactive notifications and management software. We
have created a system whereby digital content is delivered where it is supposed
to go, is played when it is supposed to be played along with the ability to act
upon and report back management and financial information. We also have created
software designed to enable a movie exhibitor to run
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all projects in a multiple auditorium theatre from one central server,
regardless of the hardware type or manufacturer.
We have two reportable segments: Media Services, which represents the operations
of AccessDM (including Boeing Digital (as defined below)), ADM Cinema, FiberSat
and Hollywood SW, and Data Center Services, which are comprised of our IDC
operations and Managed Service Offerings.
In February 2003, we organized AccessDM, which in May 2004, became our
wholly-owned subsidiary. AccessDM has developed proprietary software, Digital
Express e-Courier, capable of worldwide delivery of digital data -- including
movies, advertisements and alternative content such as concerts, seminars and
sporting events -- to movie theaters and other venues having digital projection
equipment. We are also in the process of developing media player software for
use by digitally-equipped movie theaters called Theatre Command Centre.
In November 2003, we acquired all of the capital stock of Hollywood SW, a
leading provider of proprietary transactional support software and consulting
services for distributors and exhibitors of filmed entertainment in the United
States and Canada (the "Hollywood SW Acquisition"). Its licensed software
records and manages information relating to the planning, scheduling, revenue
sharing, cash flow and reporting associated with the distribution and exhibition
of theatrical films. In addition, Hollywood SW's software complements, and is
integrated with, AccessDM's digital content delivery software by enabling
Hollywood SW's customers to seamlessly plan and schedule delivery of digital
content to entertainment venue operators as well as to manage the related
financial transactions.
In an effort to increase the competitive advantage of the IDCs, on January 9,
2004, we acquired Core, a managed service provider of information technologies.
As an information technology outsourcing organization, Core manages clients'
networks and systems in over 35 countries in Europe, Asia and North and South
America and more than 20 states in the United States. Core operates a 24x7
Global Network Command Center ("GNCC"), capable of running the networks and
systems of large corporate clients. The 4 largest customers of Core accounted
for approximately 77% of its revenues for the year ended March 31, 2004. The
managed services capabilities of Core have been integrated with our IDCs and now
operate under the name of AccessIT Managed Services.
In March 2004, we acquired certain assets of Boeing Digital Cinema ("Boeing
Digital"), a division of The Boeing Company ("Boeing"). These assets were
purchased to further our strategy of becoming a leader in the delivery of movies
and other digital content to movie theaters. The acquired assets consist of
digital projectors, satellite dishes and other equipment installed at 28 screens
within 21 theaters in the United States and at one location in London, England,
and satellite transmission equipment which we installed in Los Angeles,
California.
Also in March 2004, we refinanced approximately $4.2 million aggregate principal
amount (plus accrued and unpaid interest) of our promissory notes pursuant to an
exchange offer. In exchange for these promissory notes, we issued 707,477
unregistered shares of our Class A common stock and $1.7 million aggregate
principal amount of new convertible notes which as of March 1, 2005 were
convertible into a maximum of 310,857 shares of our Class A common stock.
In May 2004, we entered into an agreement with the holder of 750,000 shares of
AccessDM's common stock, to exchange all of their shares for 31,300 unregistered
shares of AccessIT's Class A common stock. As a result of the transaction, which
was consummated as of May 31, 2004, AccessIT now holds 100% of AccessDM's common
stock.
In June 2004, we consummated a $4.87 million private placement of 1,217,500
unregistered shares of our Class A common stock with institutional and other
accredited investors. Pursuant to the private placement, we also issued to the
investors and the placement agent warrants to purchase up to 243,500 and 60,875
shares of our Class A common stock, respectively, at an exercise price of $4.80
per share, exercisable upon receipt.
In November 2004, we consummated a $1.1 million private placement of 282,776
unregistered shares of our Class A common stock at $3.89 per share with certain
accredited investors (the "November 2004 PIPE"). The net proceeds of
approximately $1.023 million from such private placement were used for the
FiberSat Acquisition (as defined below) and for working capital.
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Also in November 2004, we acquired substantially all of the assets and certain
liabilities of FiberSat Global Services, LLC ("FiberSat Seller") through our
subsidiary FiberSat (the "FiberSat Acquisition"). FiberSat, headquartered in
Chatsworth, California, provides services utilizing satellite ground facilities
and fiber-optic connectivity to receive, process, store, encrypt and transmit
television and data signals globally. FiberSat's Chatsworth facility currently
houses the infrastructure operations of our digital cinema satellite delivery
services. By completing the FiberSat Acquisition, we gained extensive satellite
distribution and networking capabilities provided by FiberSat's fully
operational data storage and uplink facility located in Los Angeles, California.
FiberSat has the ability to provide broadband video, data and Internet
transmission and encryption services for the broadcast and cable television and
communications industries.
In February 2005, we consummated a private placement of $7.6 million, 4-year
convertible debentures (the "Convertible Debentures"). The Convertible
Debentures bear interest at the rate of 7% per year and are convertible into
shares of our Class A common stock at the price of $4.07 per share, subject to
possible adjustments from time to time. In connection with the Convertible
Debenture offering, we issued the participating institutional investors warrants
(the "Convertible Debentures Warrants") exercisable for up to 560,197 shares of
Class A common stock at an initial exercise price of $4.44 per share, subject to
adjustments from time to time. The Convertible Debentures Warrants may be
exercised beginning on September 9, 2005 until five years thereafter.
Also in February 2005, we, through ADM Cinema, consummated the acquisition of
substantially all of the assets of the Pavilion Theatre. The Pavilion Theatre is
an eight-screen movie theatre and cafe and will be a component of the Media
Services segment. Continuing to operate as a fully functional multiplex, the
Pavilion Theatre will also become our showplace to demonstrate our integrated
digital cinema solutions to the movie entertainment industry.
We offer interrelated services that use each of our business units for the
planning, purchasing, delivery and management of digital content -- such as
movies, advertising, trailers and alternative content, including concerts,
seminars and sporting events -- to movie theater and other venue operators. We
believe that our ability to offer a wide range of fully managed services will
differentiate us from other service providers, including distributors of other
types of digital media.
For the three months ended December 31, 2004, we received 47% and 53%,
respectively, of our revenues from the Media Services and Data Center Services
segments. For the nine months ended December 31, 2004, we received 35% and 65%,
respectively, of our revenue from the Media Services and Data Center Services
segments. During the fiscal year ended March 31, 2004, we received 81% of our
revenue from the Data Center Services segment and 19% of our revenue from the
Media Services segment. For the fiscal year ended March 31, 2004, KMC Telecom,
AT&T and Metro Goldwyn Mayer ("MGM") comprised approximately 27%, 12% and 10% of
our revenues, respectively. No other single customer accounted for greater than
10% of revenues during the fiscal year ended March 31, 2004. From our inception
through November 3, 2003, all of our revenues have been derived from monthly
license fees and fees from other ancillary services provided by us at our IDCs.
Our principal executive offices are at 55 Madison Avenue, Suite 300, Morristown,
NJ 07960, and our telephone number at such offices is (973) 290-0080. Our e-mail
address is investor@accessitx.com and our web site address is www.accessitx.com.
Information accessed on or through our web site does not constitute a part of
this prospectus.
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THE OFFERING
Class A common stock offered
by selling stockholders..............................4,593,869 shares (1)
Common stock equivalents
presently outstanding................................10,401,233 shares (2)
Common stock equivalents to be
outstanding immediately
after this offering..................................10,401,233 shares (2)
Use of proceeds......................................We will not receive any
proceeds from the resale of
shares of our Class A
common stock by the selling
stockholders, other than
payment of the exercise
price of the warrants.
American Stock Exchange symbol.......................AIX
(1) This prospectus covers the resale by the selling stockholders named in
this prospectus of up to (i) 2,334,152 shares, 125% of 1,867,322 shares
issuable upon conversion of convertible debentures, all of which
convertible debentures were issued to investors pursuant to the
Purchase Agreement, (ii) 700,246 shares, 125% of 560,197 shares
issuable upon exercise of outstanding warrants, all of which warrants
were issued to investors pursuant to the Purchase Agreement, (iii)
571,170 shares, 125% of 456,936 shares issuable as payment of interest
on the convertible debentures pursuant to the Purchase Agreement; and
(iv) 988,301 shares that were issued to certain accredited investors
under the November 2004 PIPE and to certain members of FiberSat Seller
under the FiberSat Acquisition who exercised their piggyback
registration rights (see footnotes to the "Selling Stockholders" table
below). The offered shares have been or will be issued to the selling
stockholders in a private placement transaction exempt from the
registration requirements of the Securities Act of 1933. The selling
stockholders may offer to sell the shares of Class A common stock being
offered in this prospectus at fixed prices, at prevailing market prices
at the time of sale, at varying prices or at negotiated prices. Please
see "Plan of Distribution" in this prospectus for a detailed
explanation of how the shares of Class A common stock may be sold.
(2) Reflects 9,415,422 outstanding shares of our Class A common stock as of
March 1, 2005, and 985,811 outstanding shares of our Class B common
stock, which are convertible into 985,911 shares of Class A common
stock as of March 1, 2005; excludes 51,440 treasury shares and up to
3,897,661 shares of Class A common stock issuable upon the exercise of
outstanding warrants and options as of March 1, 2005.
This prospectus contains our trademarks, tradenames and servicemarks and also
contains certain trademarks, tradenames and servicemarks of other parties.
-----------------
7
RISK FACTORS
AN INVESTMENT IN OUR CLASS A COMMON STOCK INVOLVES A HIGH DEGREE OF RISK AND
UNCERTAINTY. YOU SHOULD CAREFULLY CONSIDER THE RISKS DESCRIBED BELOW BEFORE
DECIDING TO INVEST IN OUR CLASS A COMMON STOCK. THE RISKS DESCRIBED BELOW ARE
NOT THE ONLY ONES FACING OUR COMPANY. ADDITIONAL RISKS NOT PRESENTLY KNOWN TO US
OR THAT WE PRESENTLY CONSIDER IMMATERIAL MAY ALSO ADVERSELY AFFECT OUR COMPANY.
IF ANY OF THE FOLLOWING RISKS OCCUR, OUR BUSINESS, FINANCIAL CONDITION, RESULTS
OF OPERATIONS AND PROSPECTS COULD BE MATERIALLY ADVERSELY AFFECTED. IN THAT
CASE, THE TRADING PRICE OF OUR CLASS A COMMON STOCK COULD DECLINE, AND YOU COULD
LOSE ALL OR PART OR YOUR INVESTMENT. IN ASSESSING THESE RISKS, YOU SHOULD ALSO
REFER TO THE OTHER INFORMATION INCLUDED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS, INCLUDING THE CONSOLIDATED FINANCIAL STATEMENTS AND NOTES THERETO OF
OUR COMPANY INCLUDED ELSEWHERE IN THIS PROSPECTUS.
WE HAVE INCURRED LOSSES SINCE OUR INCEPTION.
We have incurred losses since our inception in March 2000 and have financed our
operations principally through equity investments and borrowings. We incurred
net losses of $2.33 million and $4.0 million in the nine months ended December
31, 2003 and 2004, respectively. As of December 31, 2004, we had working capital
of $224,000 and cash and cash equivalents of $1.52 million; we had an
accumulated deficit of $18.7 million; and, from inception through such date, we
had used $8.0 million in cash for operating activities. Our net losses are
likely to continue for the foreseeable future.
Our profitability is dependent upon us achieving a sufficient volume of business
from our customers. If we cannot achieve a high enough volume, we likely will
incur additional net and operating losses. We may be unable to continue our
business as presently conducted unless we obtain funds from additional
financings.
Our net losses and negative cash flows may increase as and to the extent that we
increase the size of our business operations, increase our sales and marketing
activities, enlarge our customer support and professional services and acquire
additional businesses. These efforts may prove to be more expensive than we
currently anticipate, which could further increase our losses. We must
significantly increase our revenues in order to become profitable. We cannot
reliably predict when, or if, we will become profitable. Even if we achieve
profitability, we may not be able to sustain it. If we cannot generate operating
income or positive cash flows in the future, we will be unable to meet our
working capital requirements.
WE HAVE LIMITED EXPERIENCE IN OUR BUSINESS OPERATIONS, WHICH MAY NEGATIVELY
AFFECT OUR ABILITY TO GENERATE SUFFICIENT REVENUES TO ACHIEVE PROFITABILITY.
We were incorporated on March 31, 2000. Our original business was data center
operations. Our first IDC became operational in December 2000.
In addition to our data center operations, we have expanded into three new
business areas: (a) providing back office transactional software for
distributors and exhibitors of filmed and digital entertainment through
Hollywood SW; (b) providing software and systems for the delivery of digital
entertainment, such as movies, to movie theaters and other venues through
AccessDM; (c) providing information technologies, secure system monitoring of
telecommunications and data network outsourcing through Core, (d) providing
satellite delivery services through FiberSat; and (e) operation of a movie
theatre, restaurant and cafe through ADM Cinema. Although we have retained the
senior management of Hollywood SW, Core, and FiberSat, we have little experience
in these new areas of business and cannot assure you that we will be able to
develop and market the services provided thereby. None of these new businesses
is directly related to our data center operations and we cannot assure you that
any of them will complement our data center operations, or vice versa. We also
cannot assure you that we will be able successfully to operate these businesses.
Our efforts to expand into these three new business areas may prove costly and
time-consuming and may divert a considerable amount of resources from our data
center operations.
Our lack of operating experience in the digital cinema industry and providing
transactional software for movie distributors could result in:
8
o increased operating and capital costs;
o an inability to effect a viable growth strategy;
o service interruptions for our customers; and
o an inability to attract and retain customers.
We may not be able to generate sufficient revenues to achieve profitability
through the operation of our data centers, our digital cinema business or our
movie distribution software business. We cannot assure you that we will be
successful in marketing and operating these new businesses or, even if we are
successful in doing so, that we will not experience additional losses.
ACCESSDM IS AN EARLY-STAGE COMPANY AND MAY NOT BE ABLE TO MARKET SUCCESSFULLY
ITS DIGITAL CONTENT DELIVERY SERVICES.
AccessDM, is an early-stage company. It is expected to provide software and
systems for the delivery of digital content to movie theaters and other venues.
We recently completed development of a working version of this software, with
final testing completed in September 2003. We did not, however, have the
personnel to develop this type of software and we hired outside consultants to
assist us. In addition, we may never be successful in developing software that
is commercially saleable or that our customers will buy. Moreover, other
companies that are attempting to develop similar software may be able to market
and sell their versions before or more cost-effectively than we can.
OUR RECENT ACQUISITIONS INVOLVE RISKS, INCLUDING OUR INABILITY TO INTEGRATE
SUCCESSFULLY THE NEW BUSINESSES AND OUR ASSUMPTION OF CERTAIN LIABILITIES.
We have recently made meaningful acquisitions to expand into new business areas.
However, we may experience costs and hardships in integrating the new
acquisitions into our current business structure. On November 3, 2003 we
acquired Hollywood SW and on January 9, 2004 we acquired Core. On March 29,
2004, we acquired assets used in the operations of Boeing Digital, a business
unit of Boeing, which we intend to integrate into the business of AccessDM. On
November 17, 2004, we acquired assets of FiberSat Seller. Most recently, on
February 11, 2005, we acquired the Pavilion Theatre through ADM Cinema. We may
not be able to integrate successfully the acquired businesses and assets into
our existing business. We cannot assure you that we will be able to effectively
market the services provided by Hollywood SW, AccessDM, Core, FiberSat and the
Pavilion Theatre along with our data centers. Further, these new businesses and
assets may involve a significant diversion of our management time and resources
and be costly. Our acquisition of these businesses and assets also involves the
risks that the businesses and assets acquired may prove to be less valuable than
we expected and/or that we may assume unknown or unexpected liabilities, costs
and problems. In addition, we assumed certain liabilities in connection with
these acquisitions and we cannot assure you that we will be able to adequately
pay off such assumed liabilities. Other companies that offer similar products
and services may be able to market and sell their products and services more
cost-effectively than we can.
BECAUSE THE USE OF ACCESSDM'S SERVICES LARGELY DEPENDS ON THE EXPANDED USE OF
DIGITAL PRESENTATIONS REQUIRING ELECTRONIC DELIVERY, IF SUCH EXPANDED USE DOES
NOT OCCUR, NO VIABLE MARKET FOR ACCESSDM'S SERVICES MAY DEVELOP.
Even if we are among the first to develop software and systems for the delivery
of digital content to movie theaters and other venues, the demand for them will
largely depend on a concurrent expansion of digital presentations at theaters,
which may not occur for several years. There can be no assurance, however, that
major movie studios that currently rely on traditional distribution networks to
provide physical delivery of digital files will adopt a different method,
particularly electronic delivery, of distributing digital content to movie
theaters. If the development of digital presentations and changes in the way
digital files are delivered does not occur, there may be no viable market for
AccessDM's delivery systems and software.
9
IF WE DO NOT MANAGE OUR GROWTH, OUR BUSINESS WILL BE HARMED.
We may not be successful in managing our rapid growth. Since February 2003, we
acquired five businesses and in connection with those acquisitions, we formed
three additional subsidiaries. These subsidiaries operate in business areas
different from our data center operations business. The number of our employees
has grown from 11 in March 2003 to 34 in March 2004 and to 58 by December 2004.
Past growth has placed, and future growth will continue to place, a significant
challenge to our management and resources, related to the successful integration
of the newly acquired businesses. To manage the expected growth of our
operations, we will need to improve our existing and implement new operational
and financial systems, procedures and controls. We may also need to expand our
finance, administrative, client services and operations staff and train and
manage our growing employee base effectively. Our current and planned personnel,
systems, procedures and controls may not be adequate to support our future
operations. Our business, results of operations and financial position will
suffer if we do not effectively manage our growth.
WE MAY NOT BE ABLE TO GENERATE THE AMOUNT OF CASH NEEDED TO FUND OUR FUTURE
OPERATIONS.
Our ability either to make payments on or to refinance our indebtedness, or to
fund planned capital expenditures and research and development efforts, may
depend on our ability to generate cash in the future. Our ability to generate
cash is in part subject to general economic, financial, competitive, regulatory
and other factors that are beyond our control.
Based on our current level of operations, we believe our cash flow from
operations and available cash financed through the issuance of common stock and
promissory notes will be adequate to meet our future liquidity needs for at
least one year from the date of this prospectus. Significant assumptions
underlie this belief, including, among other things, that there will be no
material adverse developments in our business, liquidity or capital
requirements. If we are unable to service our indebtedness, we will be forced to
adopt an alternative strategy that may include actions such as:
o reducing capital expenditures;
o reducing research and development efforts;
o selling assets;
o restructuring or refinancing our remaining indebtedness; and
o seeking additional funding.
We cannot assure you, however, that our business will generate sufficient cash
flow from operations, or that we will be able to make future borrowings in
amounts sufficient to enable us to pay the principal and interest on our current
indebtedness or to fund our other liquidity needs. We may need to refinance all
or a portion of our indebtedness on or before maturity. We cannot assure you
that we will be able to refinance any of our indebtedness on commercially
reasonable terms or at all.
WE MAY CONTINUE TO HAVE CUSTOMER CONCENTRATION IN OUR BUSINESS, AND THE LOSS OF
ONE OR MORE OF OUR LARGEST CUSTOMERS COULD HAVE A MATERIAL ADVERSE EFFECT ON US.
We expect that we will rely, at least in the near future, upon a limited number
of customers for a substantial percentage of our revenues and may continue to
have customer concentration company-wide. For fiscal years 2003 and 2004, our
four largest IDC customers accounted for approximately 60% and 54% of our
revenues, respectively (our largest customer, KMC Telecom, accounted for
approximately 17% and 27%, respectively of our revenues for such fiscal years,
and our second largest customer, AT&T, accounted for approximately 21% and 12%,
respectively, of our revenues for such fiscal years). For the nine months ended
December 31, 2004 our four largest IDC customers accounted for approximately 39%
of our revenues (our largest customer, KMC Telecom, accounted for approximately
20% of our revenues, and our second largest customer, AT&T, accounted for
approximately 9% of our revenues. The revenues generated from our IDC business
constituted approximately 57% of our total revenue for the nine months ended
December 31, 2004.
10
To date, AccessDM has generated revenues of $173,000 and we anticipate that
AccessDM will not generate any significant revenues through March 31, 2005. For
the five months ended March 31, 2004 (the approximate period of ownership of
Hollywood SW by AccessIT), the five largest customers of Hollywood SW accounted
for approximately 87% of its revenues (its largest customer, MGM, accounted for
approximately 54% of its revenues for such period). For the nine months ended
December 31, 2004, the five largest customers of Hollywood SW accounted for
approximately 81% of its revenues (its largest customer, Twentieth Century Fox,
accounted for approximately 30% of its revenues, and its second largest
customer, MGM, accounted for approximately 25% of its revenue, for such period).
For the three months ended March 31, 2004 (the approximate period of ownership
of Core by AccessIT during the period), the 4 largest customers of Core
accounted for approximately 77% of its revenues. For the nine months ended
December 31, 2004, the 4 largest customers of Core accounted for approximately
73% of its revenues. A loss of or decrease in business from one or more of our
largest customers for any reason could have a material adverse effect on our
business, financial position and results of operations.
OUR SUBSTANTIAL DEBT AND LEASE OBLIGATIONS COULD IMPAIR OUR FINANCIAL
FLEXIBILITY AND OUR COMPETITIVE POSITION.
We now have, and will continue to have, significant debt obligations. We
currently have notes payable to third parties with principal amounts aggregating
$15.5 million as of March 1, 2005. We also have capital lease obligations with
principal amounts aggregating $435,000 as of March 1, 2005.
These obligations could have important consequences for us, including:
o limiting our ability to obtain necessary financing in the future and
make it more difficult for us to satisfy our lease and debt
obligations;
o requiring us to dedicate a substantial portion of our cash flow to
payments on our lease and debt obligations, thereby reducing the
availability of our cash flow to fund working capital, capital
expenditures and other corporate requirements;
o making us more vulnerable to a downturn in our business and limit our
flexibility to plan for, or react to, changes in our business; and
o placing us at a competitive disadvantage compared to competitors that
might have stronger balance sheets or better access to capital by, for
example, limiting our ability to enter into new markets.
If we are unable to meet our lease and debt obligations, we could be forced to
restructure or refinance our obligations, to seek additional equity financing or
to sell assets, which we may not be able to do on satisfactory terms or at all.
As a result, we could default on those obligations.
AN INABILITY TO OBTAIN NECESSARY FINANCING MAY HAVE A MATERIAL ADVERSE EFFECT ON
OUR FINANCIAL POSITION, OPERATIONS AND PROSPECTS IF UNANTICIPATED CAPITAL NEEDS
ARISE.
Our capital requirements may vary significantly from what we currently project
and be affected by unforeseen delays and expenses. We may experience problems,
delays, expenses and difficulties frequently encountered by similarly-situated
companies, as well as difficulties as a result of changes in economic,
regulatory or competitive conditions. If we encounter any of these problems or
difficulties or have underestimated our operating losses or capital
requirements, we may require significantly more financing than we currently
anticipate. We cannot assure you that we will be able to obtain any required
additional financing on terms acceptable to us, if at all. We will be restricted
on the type and amount of additional indebtedness that we may incur as a result
of our acquisition of Hollywood SW. In connection with the acquisition of
Hollywood SW, we issued secured promissory notes to the sellers that will be
senior to all indebtedness during the term of those notes other than any debt
provided by a bank or institutional lender, which is less than $1 million in
aggregate principal amount, unsecured or secured by the assets of Hollywood SW
and its subsidiaries. We will also be restricted on the type of additional
indebtedness that we may incur as a result of our Convertible Debentures. An
inability to obtain necessary financing could have a material adverse effect on
our financial position, operations and prospects.
11
OUR PLAN TO ACQUIRE ADDITIONAL BUSINESSES INVOLVES RISKS, INCLUDING OUR
INABILITY SUCCESSFULLY TO COMPLETE AN ACQUISITION, OUR ASSUMPTION OF
LIABILITIES, DILUTION OF YOUR INVESTMENT AND SIGNIFICANT COSTS.
We intend to make further acquisitions of similar or complementary businesses or
assets, although there are no acquisitions identified by us as probable at this
time. Even if we identify appropriate acquisition candidates, we may be unable
to negotiate successfully the terms of the acquisitions, finance them, integrate
the acquired business into our then existing business and/or attract and retain
customers. Completing an acquisition and integrating an acquired business,
including our recently acquired businesses, may require a significant diversion
of management time and resources and involves assuming new liabilities. Any
acquisition also involves the risks that the assets acquired may prove less
valuable than expected and/or that we may assume unknown or unexpected
liabilities, costs and problems. If we make one or more significant acquisitions
in which the consideration consists of our capital stock, your equity interest
in our company could be diluted, perhaps significantly. If we were to proceed
with one or more significant acquisitions in which the consideration included
cash, we could be required to use a substantial portion of our available cash,
or obtain additional financing to consummate them.
WE EXPECT COMPETITION TO BE INTENSE: IF WE ARE UNABLE TO COMPETE SUCCESSFULLY,
OUR BUSINESS AND RESULTS OF OPERATIONS WILL BE SERIOUSLY HARMED.
The market for the IDC facilities and managed services business, the digital
cinema business and the movie distribution software business, although
relatively new, are competitive, evolving and subject to rapid technological and
other changes. We expect the intensity of competition in each of these areas to
increase in the future. Companies willing to expend the necessary capital to
create facilities and/or software similar to ours may compete with our business.
Increased competition may result in reduced revenues and/or margins and loss of
market share, any of which could seriously harm our business. In order to
compete effectively in each of these fields, we must differentiate ourselves
from competitors.
Many of our current and potential competitors have longer operating histories
and greater financial, technical, marketing and other resources than us, which
may permit them to adopt aggressive pricing policies. As a result, we may suffer
from pricing pressures that could adversely affect our ability to generate
revenues and our results of operations. Many of our competitors also have
significantly greater name and brand recognition and a larger customer base than
us. We may not be able to compete successfully with our competitors. If we are
unable to compete successfully, our business and results of operations will be
seriously harmed.
WE FACE THE RISKS OF AN EARLY-STAGE COMPANY IN A NEW AND RAPIDLY EVOLVING MARKET
AND MAY NOT BE ABLE SUCCESSFULLY TO ADDRESS SUCH RISKS AND EVER BE SUCCESSFUL OR
PROFITABLE.
We have encountered and will continue to encounter the challenges, uncertainties
and difficulties frequently experienced by early-stage companies in new and
rapidly evolving markets, including:
o lack of operating experience;
o net losses;
o lack of sufficient customers;
o insufficient revenues and cash flow to be self-sustaining;
o necessary capital expenditures;
o an unproven business model;
o a changing business focus; and
o difficulties in managing potentially rapid growth.
12
This is particularly the case with respect to our newly acquired businesses. We
cannot assure you that we will ever be successful or profitable.
MANY OF OUR CORPORATE ACTIONS MAY BE CONTROLLED BY OUR OFFICERS, DIRECTORS AND
PRINCIPAL STOCKHOLDERS; THESE ACTIONS MAY BENEFIT THESE PRINCIPAL STOCKHOLDERS
MORE THAN OUR OTHER STOCKHOLDERS.
As of March 1, 2005, our directors, executive officers and principal
stockholders beneficially own, directly or indirectly, in the aggregate,
approximately 41% of our outstanding common stock. In particular, A. Dale Mayo,
our President and Chief Executive Officer, beneficially holds 985,811 shares of
Class B common stock, 9,601 shares of Class A common stock, and notes which are
convertible into 45,412 shares of Class A common stock, which collectively
represent approximately 10% of our outstanding common stock, but due to the
supervoting Class B common stock, represent approximately 51% of the voting
power. These stockholders, and Mr. Mayo himself, will have significant influence
over our business affairs, with the ability to control matters requiring
approval by our security holders, including elections of directors and approvals
of mergers or other business combinations. Our Class B common stock entitles the
holder to ten votes per share. The shares of Class A common stock have one vote
per share. Also, certain corporate actions directed by our officers may not
necessarily inure to the proportional benefit of other stockholders of our
company; under his employment agreement, for example, Mr. Mayo is entitled to
receive cash bonuses based on our revenues, regardless of our earnings, if any.
OUR SUCCESS WILL SIGNIFICANTLY DEPEND ON OUR ABILITY TO HIRE AND RETAIN KEY
PERSONNEL.
Our success will depend in significant part upon the continued services of our
key technical, sales and senior management personnel. If we lose one or more of
our key employees, we may not be able to find a suitable replacement(s) and our
business and results of operations could be adversely affected. In particular,
our performance depends significantly upon the continued service of A. Dale
Mayo, our President and Chief Executive Officer, whose experience and
relationships in the movie theater industry are integral to our business,
particularly in the business areas of Hollywood SW and AccessDM. Although we
have obtained two $5 million key-man life insurance policies in respect of Mr.
Mayo, the loss of his services would have a material and adverse effect on our
business, operations and prospects. Each policy carries a death benefit of $5
million, and while we are the beneficiary of each policy, under one of the
policies the proceeds will be used to repurchase, after reimbursement of all
premiums paid by us some, or all, of the shares of our capital stock held by Mr.
Mayo's estate at the then-determined fair market value. We also rely on the
experience and expertise of Russell J. Wintner, AccessDM's President and Chief
Operating Officer, the two co-founders of Hollywood SW, David Gajda and Robert
Jackovich, who manage Hollywood SW's day-to-day operations, and Ravi Patel,
FiberSat's President and Chief Operating Officer. In addition, our future
success will depend upon our ability to hire, train, integrate and retain
qualified new employees.
IF WE ARE NOT SUCCESSFUL IN PROTECTING OUR INTELLECTUAL PROPERTY, OUR BUSINESS
WILL SUFFER.
We depend heavily on technology to operate our business. Our success depends on
protecting our intellectual property, which is one of our most important assets.
Although we do not currently hold any copyrights, patents or registered
trademarks, we do have intellectual property consisting of:
o licensable software products;
o rights to certain domain names;
o registered service marks on certain names and phrases;
o various unregistered trademarks and service marks;
o know-how; and
o rights to certain logos.
13
If we do not adequately protect our intellectual property, our business,
financial position and results of operations would be harmed. Our means of
protecting our intellectual property may not be adequate. Unauthorized parties
may attempt to copy aspects of our intellectual property or to obtain and use
information that we regard as proprietary. In addition, competitors may be able
to devise methods of competing with our business that are not covered by our
intellectual property. Our competitors may independently develop similar
technology, duplicate our technology or design around any intellectual property
that we may obtain.
The success of some of our business operations depends on the proprietary nature
of certain software. We do not, however, have any patents with respect to such
software. Because there is no patent protection in respect of our software,
other companies are not prevented from developing and marketing similar
software. We cannot assure you, therefore, that we will not face more
competitors or that we can compete effectively against any companies that
develop similar software. We also cannot assure you that we can compete
effectively or not suffer from pricing pressure with respect to our existing and
developing products that could adversely affect our ability to generate
revenues.
Although we hold rights to various web domain names, regulatory bodies in the
United States and abroad could establish additional top-level domains, appoint
additional domain name registrars or modify the requirements for holding domain
names. The relationship between regulations governing domain names and laws
protecting trademarks and similar proprietary rights is unclear. We may be
unable to prevent third parties from acquiring domain names that are similar to
or diminish the value of our proprietary rights.
SERVICE AND OTHER INTERRUPTIONS COULD POTENTIALLY REDUCE OUR REVENUES AND HARM
OUR REPUTATION AND FINANCIAL RESULTS.
Our facilities and our customers' equipment are vulnerable to damage from human
error, physical or electronic security breaches, power loss, other facility
failures, fire, earthquake, water damage, sabotage, vandalism and similar
events. In addition, our customers would be adversely affected by the failure of
carriers to provide network access to our facilities as a result of any of these
events. Any of these events or other unanticipated problems could interrupt our
customers' ability to provide services from our facilities. This could damage
our reputation, make it difficult to attract new and retain customers and cause
our customers to terminate their contracts with us and to seek damages. Any of
these events could have a material adverse effect on our business, financial
position and prospects.
WE DEPEND ON RELATIONSHIPS WITH THIRD PARTIES, WHICH, IF NOT MAINTAINED, MAY
ADVERSELY AFFECT OUR ABILITY TO PROVIDE SERVICES TO OUR CUSTOMERS.
We are not a communications carrier and, therefore, we rely substantially on
third parties to provide our customers with access to voice, data and Internet
networks. We must maintain relationships with third-party network providers in
order to offer our data center customers access to a choice of networks. Many
carriers have their own data center facilities and may be reluctant to provide
network services at our data centers. As a result, some carriers may choose not
to connect their services to our data centers. We do not own any real property
and depend on our ability to negotiate favorable lease terms with the owners of
our data center facilities. The use of our IDCs is limited to the extent that we
do not extend or renew our leases, in which case we might not be able to
accommodate our customers, particularly if we were unable to relocate timely to
a comparable facility.
The availability of an adequate supply of electrical power and the
infrastructure to deliver that power is critical to our ability to attract and
retain customers and achieve profitability. We rely on third parties to provide
electrical power to our data centers, and cannot be certain that these parties
will provide adequate electrical power or that we will have the necessary
infrastructure to deliver such power to our customers. If the electrical power
delivered to our facilities is inadequate to support our customers' requirements
or if delivery is not timely, our results of operations and financial position
may be materially and adversely affected.
WE MAY HAVE DIFFICULTY COLLECTING PAYMENTS FROM SOME OF OUR CUSTOMERS AND INCUR
COSTS AS A RESULT.
A number of our customers are early stage companies. In addition, many of our
customers are telecommunications companies, and many telecommunications
companies have been experiencing significant financial difficulties. There is a
risk that these companies will experience difficulty paying amounts owed to us,
and we might not be able
14
to collect on a timely basis all monies owed to us by some of them. Although
we intend to remove customers that do not pay us in a timely manner, we may
experience difficulties and costs in collecting from or removing these
customers.
IF WE DO NOT RESPOND TO FUTURE ADVANCES IN TECHNOLOGY AND CHANGES IN CUSTOMER
DEMANDS, OUR FINANCIAL POSITION, PROSPECTS AND RESULTS OF OPERATIONS MAY BE
ADVERSELY AFFECTED.
The demand for our digital cinema business, movie distribution software and data
centers will be affected, in large part, by future advances in technology and
changes in customer demands. Our success will also depend on our ability to
address the increasingly sophisticated and varied needs of our existing and
prospective customers.
We cannot assure you that there will be a demand for the digital cinema software
and delivery services provided by AccessDM. AccessDM's profitability depends
largely upon the general expansion of digital presentations at theaters, which
may not occur for several years. There can be no assurance that major movie
studios relying on traditional distribution networks to provide physical
delivery of digital files will adopt a different method, particularly electronic
delivery, of distributing digital content to movie theaters. If the development
of digital presentations and changes in the way digital files are delivered does
not occur, there may be no viable market for AccessDM's software and systems.
WE MAY BE SUBJECT TO ENVIRONMENTAL RISKS RELATING TO THE ON-SITE STORAGE OF
DIESEL FUEL AND BATTERIES.
Our data centers contain tanks for the storage of diesel fuel for our generators
and significant quantities of lead acid batteries used to provide back-up power
generation for uninterrupted operation of our customers' equipment. We cannot
assure you that our systems will be free from leaks or that use of our systems
will not result in spills. Any leak or spill, depending on such factors as the
nature and quantity of the materials involved and the environmental setting,
could result in interruptions to our operations and the incurrence of
significant costs, particularly to the extent we incur liability under
applicable environmental laws. This could have a material adverse effect on our
business, financial position and results of operations.
RISKS RELATING TO OUR CLASS A COMMON STOCK
THE LIQUIDITY OF OUR CLASS A COMMON STOCK IS UNCERTAIN; THE LIMITED TRADING
VOLUME OF OUR CLASS A COMMON STOCK MAY DEPRESS THE PRICE OF SUCH STOCK OR CAUSE
IT TO FLUCTUATE SIGNIFICANTLY.
Although shares of our Class A common stock are listed on the American Stock
Exchange (the "AMEX"), there has been a limited public market for our Class A
common stock and there can be no assurance that an active trading market for our
common stock will develop. As a result, you may not be able to sell your shares
of Class A common stock in short time periods, or possibly at all. The absence
of an active trading market may cause the price per share of our Class A common
stock to fluctuate significantly.
SUBSTANTIAL RESALES OF OUR CLASS A COMMON STOCK COULD DEPRESS OUR STOCK PRICE.
The market price for our Class A common stock could decline, perhaps
significantly, as a result of resales of a large number of shares of Class A
common stock in the public market or even the perception that such resales could
occur, including resales of the shares being registered hereunder pursuant to
the registration statement of which this prospectus is a part. In addition, we
have a substantial number of options, warrants and other securities convertible
into shares of our Class A common stock outstanding that may be exercised in the
future. Certain holders of these warrants and convertible securities, as well as
holders of our outstanding shares of Class A common stock, have piggy-back
registration rights and the holder of shares of Class A common stock issuable in
exchange for its shares of preferred stock and certain warrants has demand and
piggy-back registration rights. These factors could also make it more difficult
for us to raise funds through future offerings of our equity securities.
YOU WILL INCUR SUBSTANTIAL DILUTION AS A RESULT OF CERTAIN FUTURE EQUITY
ISSUANCES.
We have a substantial number of options, warrants and other securities currently
outstanding which may be immediately converted into shares of our Class A common
stock. To the extent that these options, warrants or
15
similar securities are exercised or converted, as the case may be, there will
be further dilution to holders of shares of our Class A common stock.
PROVISIONS OF OUR CERTIFICATE OF INCORPORATION AND DELAWARE LAW COULD MAKE IT
MORE DIFFICULT FOR A THIRD PARTY TO ACQUIRE US.
Provisions of our certificate of incorporation, as well as of Section 203 of the
Delaware General Corporation Law (the "DGCL") could make it more difficult for a
third party to acquire us, even if doing so might be beneficial to our
stockholders.
Our certificate of incorporation authorizes the issuance of 15,000,000 shares of
preferred stock. The terms of our preferred stock may be fixed by the company's
board of directors without further stockholder action. The terms of any
outstanding series or class of preferred stock may include priority claims to
assets and dividends and special voting rights, which could adversely affect the
rights of holders of our Class A common stock. Any future issuance(s) of
preferred stock could make the takeover of the company more difficult,
discourage unsolicited bids for control of the company in which our stockholders
could receive premiums for their shares, dilute or subordinate the rights of
holders of Class A common stock and adversely affect the trading price of our
Class A common stock.
Under Section 203 of the DGCL, Delaware corporations whose securities are listed
on a national securities exchange, like the AMEX, may not engage in business
combinations such as mergers or acquisitions with any interested stockholders,
defined as an entity or person beneficially owning 15% or more of our
outstanding common stock without obtaining certain prior approvals. As a result
of the application of Section 203, potential acquirers of the company may be
discouraged from attempting to effect an acquisition transaction with the
company, thereby depriving holders of the company's securities of opportunities
to sell or otherwise dispose of the securities at prices above prevailing market
prices.
WE MAY NOT BE ABLE TO MAINTAIN LISTING ON THE AMEX, WHICH MAY ADVERSELY AFFECT
THE ABILITY OF PURCHASERS IN THIS OFFERING TO RESELL THEIR SECURITIES IN THE
SECONDARY MARKET.
Our Class A common stock is presently listed on the AMEX. However, we cannot
assure you that the company will meet the criteria for continued listing on the
AMEX. If the company is unable to meet the continued listing criteria of the
AMEX and became delisted, trading of the Class A common stock could thereafter
be conducted in the over-the-counter market in the so-called "pink sheets" or,
if available, the NASD's Electronic Bulletin Board. In such case, an investor
would likely find it more difficult to dispose of, or to obtain accurate market
quotations for, the company's securities.
If the shares of Class A common stock were delisted from the AMEX, they may
become subject to Rule 15g-9 under the Exchange Act, which imposes sales
practice requirements on broker-dealers that sell such securities to persons
other than established customers and "accredited investors." Application of this
Rule could adversely affect the ability and/or willingness of broker-dealers to
sell the company's securities and may adversely affect the ability of purchasers
in this offering to resell their securities in the secondary market.
USE OF PROCEEDS
We will receive no proceeds from the sale of any of or all of the shares being
offered by the selling stockholders under this prospectus. We will receive an
amount of up to approximately $2,487,275 upon the exercise of the warrants, if
exercised, as to which we are registering the underlying shares of Class A
common stock. Any proceeds that we receive from the exercise of outstanding
warrants will be used by us for general working capital. The actual allocation
of proceeds realized from the exercise of these securities will depend upon the
amount and timing of such exercises, our operating revenues and cash position at
such time and our working capital requirements. There can be no assurances that
any of the outstanding warrants will be exercised.
16
SELLING STOCKHOLDERS
The following table sets forth as of March 1, 2005, certain information with
respect to the beneficial ownership of the Class A common stock as to each
selling stockholder.
-------------------------------------- ------------------------------ ---------------- ------------------------------
SHARES WHICH
MAY BE OFFERED
SHARES BENEFICIALLY OWNED PURSUANT TO SHARES BENEFICIALLY OWNED
PRIOR TO OFFERING THIS OFFERING AFTER OFFERING (a)
-------------------------------------- ------------------------------ ---------------- ------------------------------
NAME NUMBER PERCENT (b) NUMBER PERCENT (b)
-------------------------------------- ---------------- ------------- ---------------- --------------- --------------
Alexandra Global Master Fund, Ltd.,
c/o Alexandra Investment Management
LLC, 767 Third Avenue, 39th Floor,
New York, New York 10017.............. 184,275 (c)(d) 1.9% 239,558 (n) - -
-------------------------------------- ---------------- ------------- ---------------- --------------- --------------
AG Domestic Convertibles, L.P., 245
Park Avenue, 26th Floor, New York,
New York 10167........................ 152,392 (e) 1.6% 167,690 (o) 23,400 (bb) *
-------------------------------------- ---------------- ------------- ---------------- --------------- --------------
AG Offshore Convertibles, Ltd., 245
Park Avenue, 26th Floor, New York,
New York 10167........................ 282,658 (f) 3.0% 311,425 (p) 43,100 (bb) *
-------------------------------------- ---------------- ------------- ---------------- --------------- --------------
Basso Multi-Strategy Holding Fund
Ltd., 1266 East Main Street,
Stamford, Connecticut 06902........... 622,850 (d)(g) 6.6% 809,705 (q) - -
-------------------------------------- ---------------- ------------- ---------------- --------------- --------------
Basso Private Opportunity Holding
Fund Ltd., 1266 East Main Street,
Stamford, Connecticut 06902........... 175,676 (d)(h) 1.8% 228,379 (r) - -
-------------------------------------- ---------------- ------------- ---------------- --------------- --------------
Catalyst Associates, L.P., 20 West
Avenue, Darien Connecticut 06820...... 337,420 (i) . 3.5% 191,646 (s) 190,000 (bb) 2%
-------------------------------------- ---------------- ------------- ---------------- --------------- --------------
Pequot Capital Management, Inc., 500
Nyala Farm Road, Westport,
Connecticut 06080..................... 368,550 (j) 3.9% 479,115 (t) - -
-------------------------------------- ---------------- ------------- ---------------- --------------- --------------
Michael Farina,
837 Stephen Road, Burbank, CA
91504.................................. 5,000 * 5,000 (u) - -
-------------------------------------- ---------------- ------------- ---------------- --------------- --------------
Richard M. Wolfe,
7171 Chelan Way, Los Angeles, CA
90068................................. 333,025 3.5% 333,025 (v) - -
-------------------------------------- ---------------- ------------- ---------------- --------------- --------------
Scott Edward Smith,
1936 Nettlebrook Street - -
Westlake Village, CA 91361........... 7,500 * 7,500 (w)
-------------------------------------- ---------------- ------------- ---------------- --------------- --------------
17
Globecomm Systems Inc.,
45 Oser Avenue, Hauppaugue, NY - -
11788................................. 50,000 (k) * 50,000 (x)
-------------------------------------- ---------------- ------------- ---------------- --------------- --------------
McKebben Communications,
10018 Nevada Avenue
Chatsworth, CA 91311.................. 10,000 * 10,000 (y) - -
-------------------------------------- ---------------- ------------- ---------------- --------------- --------------
BFS US Special Opportunities Trust
PLC,
c/o RENN Capital Group
8080 N. Central Expressway, Suite
210, LB-59
Dallas, TX 75206...................... 291,388 (l)(m) 3% 291,388 (z) - -
-------------------------------------- ---------------- ------------- ---------------- --------------- --------------
Renaissance US Growth Investment
Trust PLC,
c/o RENN Capital Group
8080 N. Central Expressway, Suite
210, LB-59
Dallas, TX 75206...................... 291,388 (l)(m) 3% 291,388 (aa) - -
-------------------------------------- ---------------- ------------- ---------------- --------------- --------------
Total Selling Stockholders............ 3,112,122 33% 3,415,819 - -
-------------------------------------- ---------------- ------------- ---------------- --------------- --------------
* Less than 1%
(a) Assumes sale of all shares offered under this prospectus.
(b) Applicable percentage of ownership is based on 9,415,422 shares of Class A
common stock outstanding as of March 1, 2005 together with all applicable
options, warrants and other securities convertible into shares of our Class
A common stock for such stockholder. Beneficial ownership is determined in
accordance with the rules of the SEC, and includes voting and investment
power with respect to shares. Shares of Class A common stock subject to
options, warrants or other convertible securities exercisable within 60
days after March 1, 2005 are deemed outstanding for computing the
percentage ownership of the person holding such options, warrants or other
convertible securities, but are not deemed outstanding for computing the
percentage of any other person. Except as otherwise noted, the named
beneficial owner has the sole voting and investment power with respect to
the shares shown.
(c) Mikhail A. Filimonov and Dimitri Sogoloff are managing members of Alexandra
Investment Management, LLC, which is the investment advisor to this selling
stockholder, and may be deemed to beneficially own its shares. Each of
Messrs. Filimonov and Sogoloff, and Alexandra Investment Management, LLC
disclaims beneficial ownership of this selling stockholder's shares.
(d) Represents the number of shares of Class A common stock underlying
convertible debentures convertible as of March 1, 2005.
(e) Includes 23,400 shares of Class A common stock this selling stockholder
owns as of March 1, 2005 and 128,992 shares of Class A common stock
underlying convertible debentures convertible as of March 1, 2005.
(f) Includes 43,100 shares of Class A common stock this selling stockholder
owns as of March 1, 2005 and 239,558 shares of Class A common stock
underlying convertible debentures convertible as of March 1, 2005.
(g) Howard I. Fischer is a managing member of Basso GP, LLC, the general
partner of Basso Asset Management L.P., which is the investment manager to
this selling stockholder, and may be deemed to beneficially own its shares.
Mr. Fischer disclaims beneficial ownership of this selling stockholder's
shares.
(h) Howard I. Fischer is a managing member of Basso GP, LLC, the general
partner of Basso Capital Management, L.P., which is the investment manager
of this selling stockholder, and may be deemed to beneficially own its
shares. Mr. Fischer disclaims beneficial ownership of this selling
stockholder's shares.
(i) Includes 190,000 shares of Class A common stock this selling stockholder
owns as of March 1, 2005 and 147,420 shares of Class A common stock
underlying convertible debentures convertible as of March 1, 2005.
(j) Shares beneficially owned by this selling stockholder represent shares of
Class A common stock underlying convertible debentures convertible as of
March 1, 2005, of which 223,071 shares are held of record by Pequot Scout
Fund, L.P. ("Pequot Scout") and 145,479 shares are held of record by Pequot
Navigator Onshore Fund, L.P. ("Pequot Navigator"). This selling stockholder
is the investment manager to Pequot Scout and Pequot Navigator and
exercises sole dispositive, investment and voting power for all the shares.
18
Arthur J. Sandberg is the sole shareholder of this selling stockholder and
may be deemed to beneficially own its shares. Mr. Sandberg disclaims
beneficial ownership of the shares except for his pecuniary interest.
(k) Andrew C. Melfi is an officer of this selling stockholder and may be deemed
to beneficially own its shares. Mr. Melfi disclaims beneficial ownership of
this selling stockholder's shares.
(l) Includes 266,388 shares of Class A common stock this selling stockholder
owns as of March 1, 2005 and 25,000 shares of Class A common stock
underlying the warrants that are exercisable as of March 1, 2005.
(m) Russell Cleveland is a director of this selling stockholder and may be
deemed to beneficially own its shares. Mr. Cleveland disclaims beneficial
ownership of this selling stockholder's shares.
(n) Includes 184,275 shares of Class A common stock underlying convertible
debentures convertible as of March 1, 2005 and 55,283 shares of Class A
common stock underlying warrants exercisable as of September 10, 2005.
(o) Includes 128,992 shares of Class A common stock underlying convertible
debentures convertible as of March 1, 2005 and 38,698 shares of Class A
common stock underlying warrants exercisable as of September 10, 2005.
(p) Includes 239,558 shares of Class A common stock underlying convertible
debentures convertible as of March 1, 2005 and 71,867 shares of Class A
common stock underlying warrants exercisable as of September 10, 2005.
(q) Includes 622,850 shares of Class A common stock underlying convertible
debentures convertible as of March 1, 2005 and 186,855 shares of Class A
common stock underlying warrants exercisable as of September 10, 2005.
(r) Includes 175,676 shares of Class A common stock underlying convertible
debentures convertible as of March 1, 2005 and 52,703 shares of Class A
common stock underlying warrants exercisable as of September 10, 2005.
(s) Includes 147,420 shares of Class A common stock underlying convertible
debentures convertible as of March 1, 2005 and 44,226 shares of Class A
common stock underlying warrants exercisable as of September 10, 2005.
(t) Includes 145,479 and 223,071 shares of Class A common stock underlying
convertible debentures convertible as of March 1, 2005 held of record by
Pequot Scout and Pequot Navigator, respectively, as described in footnote
(j) above, and shares of Class A common stock underlying warrants
exercisable as of September 10, 2005 of which 66,921 shares are held of
record by Pequot Scout and 43,644 shares are held of record by Pequot
Navigator.
(u) Represents the number of shares that Mr. Farina has elected to include in
this prospectus pursuant to his piggyback registration rights under Section
1.12 of that certain Asset Purchase Agreement, dated as of October 19, 2004
among the Company, FiberSat, FiberSat Seller, Richard Wolfe, Ravi Patel,
McKibben Communications, Globecomm Systems, Inc., Timothy Novoselski, Scott
Smith and Michael Farina (the "October Rights Agreement").
(v) Represents the number of shares that Mr. Wolfe has elected to include in
this prospectus pursuant to his piggyback registration rights under the
October Rights Agreement.
(w) Represents the number of shares that Mr. Smith has elected to include in
this prospectus pursuant to his piggyback registration rights under the
October Rights Agreement.
(x) Represents the number of shares that Globecomm Systems Inc. has elected to
include in this prospectus pursuant to its piggyback registration rights
under the October Rights Agreement.
(y) Represents the number of shares that McKebben Communications has elected to
include in this prospectus pursuant to its piggyback registration rights
under the October Rights Agreement.
(z) Represents the number of shares that BFS US Special Opportunities Trust PLC
("BFS") has elected to include in this prospectus pursuant to its piggyback
registration rights under Section 2(b)(1) of that certain Registration
Rights Agreement, dated as of November 8, 2004, among the Company, BFS and
Renaissance US Growth Investment Trust PLC ("Renaissance") (the "November
Rights Agreement.").
(aa) Represents the number of shares that Renaissance has elected to include in
this prospectus pursuant to its piggyback registration rights under the
November Rights Agreement.
(bb) Represents the number of shares that this selling stockholder owns as of
March 1, 2005 that are not included in this prospectus.
No selling stockholder has held a position as a director or executive officer
nor has had a material relationship with us or any of our affiliates, or our or
their predecessors, within the past 3 years.
19
PLAN OF DISTRIBUTION
Each selling stockholder and any of its pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of its or their
shares of Class A common stock on the American Stock Exchange or any other stock
exchange, market or trading facility on which the shares are traded or in
private transactions. These sales may be at fixed or negotiated prices. A
selling stockholder may use any one or more of the following methods when
selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o settlement of short sales entered into after the date of this
prospectus;
o broker-dealers may agree with the selling stockholders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale;
o through the writing or settlement of options or other hedging
transactions, whether through an options exchange or otherwise; or
o any other method permitted pursuant to applicable law.
The selling stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the selling stockholders may arrange for
other brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the selling stockholders (or, if any broker-dealer
acts as agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated, but, except as set forth in a supplement to this prospectus, in the
case of an agency transaction not in excess of a customary brokerage commission
in compliance with NASDR Rule 2440; and in the case of a principal transaction a
markup or markdown in compliance with NASDR IM-2440.
In connection with the sale of the Class A common stock or interests
therein, the selling stockholders may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn engage in
short sales of the Class A common stock in the course of hedging the positions
they assume. The selling stockholders may also sell shares of the Class A common
stock short and deliver these securities to close out their short positions, or
loan or pledge the Class A common stock to broker-dealers that in turn may sell
these securities. The selling stockholders may also enter into option or other
transactions with broker-dealers or other financial institutions or the creation
of one or more derivative securities which require the delivery to such
broker-dealer or other financial institution of shares offered by this
prospectus, which shares such broker-dealer or other financial institution may
resell pursuant to this prospectus (as supplemented or amended to reflect such
transaction).
The selling stockholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such event,
20
any commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Each selling stockholder has
informed us that it does not have any written or oral agreement or
understanding, directly or indirectly, with any person to distribute the Class A
common stock. In no event shall any broker-dealer receive fees, commissions and
markups which, in the aggregate, would exceed eight percent (8%).
We are required to pay certain fees and expenses incurred by us
incident to the registration of the shares. We have agreed to indemnify the
selling stockholders against certain losses, claims, damages and liabilities,
including liabilities under the Securities Act.
Because selling stockholders may be deemed to be "underwriters" within
the meaning of the Securities Act, they will be subject to the prospectus
delivery requirements of the Securities Act. In addition, any securities covered
by this prospectus which qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than under this prospectus.
Each selling stockholder has advised us that it has not entered into any written
or oral agreement, understanding or arrangement with any underwriter or
broker-dealer regarding the sale of the resale shares. There is no underwriter
or coordinating broker acting in connection with the proposed sale of the resale
shares by the selling stockholders.
We have agreed to keep this prospectus effective until the earlier of
(i) the date on which the shares may be resold by the selling stockholders
without registration and without regard to any volume limitations pursuant to
Rule 144(k) under the Securities Act or any other rule of similar effect or (ii)
all of the shares have been sold pursuant to the prospectus or Rule 144 under
the Securities Act or any other rule of similar effect. The resale shares will
be sold only through registered or licensed brokers or dealers if required under
applicable state securities laws. In addition, in certain states, the resale
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the resale shares may not simultaneously
engage in market making activities with respect to the Class A common stock for
a period of two business days prior to the commencement of the distribution. In
addition, the selling stockholders will be subject to applicable provisions of
the Exchange Act and the rules and regulations thereunder, including Regulation
M promulgated under the Exchange Act, which may limit the timing of purchases
and sales of shares of the Class A common stock by the selling stockholders or
any other person. We will make copies of this prospectus available to the
selling stockholders and have informed them of the need to deliver a copy of
this prospectus to each purchaser at or prior to the time of the sale.
LEGAL MATTERS
The validity of the offered shares of Class A common stock will be
passed on for us by Kelley Drye & Warren LLP of New York, New York.
EXPERTS
The consolidated financial statements of AccessIT at March 31, 2003 and
2004 and for each of the two fiscal years in the period ended March 31, 2004
incorporated by reference into this prospectus have been so incorporated in
reliance on the report of PricewaterhouseCoopers LLP, an independent registered
public accounting firm, given on the authority of said firm as experts in
auditing and accounting.
The financial statements of Hollywood SW at March 31, 2002 and 2003 and
for each of the two fiscal years in the period ended March 31, 2003 incorporated
by reference into this prospectus have been audited by BDO Seidman, LLP, an
independent registered public accounting firm, to the extent and for the periods
set forth in their report thereon, and are incorporated in reliance upon said
report given upon the authority of such firm as experts in accounting and
auditing.
The financial statements of FiberSat Seller as of December 31, 2003
incorporated by reference into this prospectus have been audited by Singer Lewak
Greenbaum & Goldstein LLP, an independent registered public
21
accounting firm, and are incorporated in reliance upon said report given upon
the authority of such firm as experts in accounting and auditing.
INDEMNIFICATION AGAINST LIABILITY UNDER THE SECURITIES ACT
Insofar as indemnification for liabilities arising under the Securities
Act, may be permitted to our directors, officers and controlling persons
pursuant to any arrangement, provision or otherwise, we have been advised that
in the opinion of the SEC 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 us of expenses incurred or paid by any of our directors, officers or
controlling persons 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, we will, unless in the opinion of our counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by us is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
22
TABLE OF CONTENTS
PAGE
About this prospectus................................................... 1
Where you can find more information..................................... 1
Incorporation of certain documents by reference......................... 1
Forward looking statements.............................................. 3
Prospectus summary...................................................... 4
Risk factors............................................................ 8
Use of proceeds......................................................... 16
Selling stockholders.................................................... 17
Plan of distribution.................................................... 20
Legal matters........................................................... 21
Experts................................................................. 21
Indemnification against liability under the Securities Act.............. 22
4,593,869 Shares
Class A common stock
PROSPECTUS
__________, 2005
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table presents the costs and expenses, payable by us in
connection with the sale of the Class A common stock being registered. The
selling stockholders will not pay any expenses, other than commissions or
discounts. All amounts are estimates except for the SEC registration fee and the
American Stock Exchange listing fee.
SEC registration fee................................ $ 2,312
American Stock Exchange listing fee................. 45,000
Printing expenses................................... 300
Legal fees and expenses............................. 20,000
Accounting fees and expenses........................ 15,000
Miscellaneous fees and expenses..................... 1,000
--------------
Total:.............................................. $ 83,612
==============
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The amended and restated certificate of incorporation and the bylaws of
the registrant provide that the registrant 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.
II-1
(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.
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As permitted by Section 102(b)(7) of the DGCL, the registrant's fourth
amended and restated certificate of incorporation eliminates the personal
liability of each of the registrant's directors to the registrant 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 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) The exhibits listed in the following table have been filed as part of
this registration statement.
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
1.1 -- Form of Underwriting Agreement between the registrant and the
underwriter to the registrant's November 10, 2003 Public Offering. (1)
2.1 -- Stock Purchase Agreement, dated July 17, 2003, between the
registrant and Hollywood Software, Inc. and its stockholders. (2)
2.2 -- Exchange Agreement, dated as of September 17, 2003, between the
registrant and MidMark Equity Partners II, L.P. (3)
2.3 -- Amendment No. 1 to Stock Purchase Agreement, dated as of November
3, 2003, between and among the registrant, Hollywood Software, Inc.,
the selling stockholders and Joseph Gunnar & Co., LLC. (1) 2.4 --
Stock Purchase Agreement, dated as of December 22, 2003, among the
registrant, Concurrent Technologies, Inc. and Erik B. Levitt. (4)
2.5 -- Asset Purchase Agreement, dated as of March 29, 2004, between the
registrant and The Boeing Company. (5) 2.6 -- Form of Exchange
Agreement (debt for equity), dated as of March 24, 2004, between the
registrant and each Investor taking part in the March 24, 2004
exchange offering. (6)
2.7 -- Form of Exchange Agreement (debt for debt), dated as of March 24,
2004, between the registrant and each Investor taking part in the
March 24, 2004 exchange offering. (6)
2.8 -- Securities Purchase Agreement, dated as of June 2, 2004, among the
registrant and certain investors. (7) 2.9 -- Asset Purchase Agreement,
dated as of October 19, 2004, among Access Integrated Technologies,
Inc. , FiberSat Global Services Inc., FiberSat Global Services LLC,
Richard Wolfe, Ravi Patel, McKibben Communications, Globecomm Systems,
Inc., Timothy Novoselski, Scott Smith and Michael Farina. (8)
2.10 -- Asset Purchase Agreement, dated as of December 23, 2004, among ADM
Cinema Corporation, Pritchard Square Cinema, LLC and Norman Adie. (11)
2.11 -- Securities Purchase Agreement, dated as of February 9, 2005 among
the registrant and the several investors party thereto. (9)
4.1 -- Form of Warrant Agreement (with Warrant Certificates) between the
registrant and the lead underwriter. (1)
4.2 -- Specimen certificate representing Class A common stock. (1)
4.3 -- Promissory note issued by the registrant to ColoSolutions, Inc.,
dated November 27, 2002. (2)
4.4 -- Promissory note issued by the registrant to holders of ten-year
warrants. (2)
4.5 -- Form of note to be issued by the registrant to the selling
stockholders of Hollywood Software, Inc. (2)
4.6 -- Form of Pledge and Security Agreement between the registrant, the
selling stockholders of Hollywood Software, Inc. and the pledge agent.
(2)
4.7 -- Promissory note dated November 3, 2003 issued by the registrant to
David Gajda. (1)
4.8 -- Promissory note dated November 3, 2003 issued by the registrant to
Robert Jackovich. (1) 4.9 -- Pledge and Security Agreement, dated as
of November 3, 2003, between the registrant and the selling
stockholders of Hollywood Software, Inc. (1)
4.10 -- Registration Rights Agreement, dated as of January 9, 2004, between
the registrant and Erik B. Levitt. (4)
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4.11 -- Promissory note dated March 29, 2004 issued by the registrant to
The Boeing Company. (5)
4.12 -- Registration Rights Agreement, dated as of March 29, 2004, between
the registrant and The Boeing Company. (5)
4.13 -- Form of Subordinated Convertible Promissory Note, dated March 24,
2004, issued by the registrant to each Investor taking part in the
March 24, 2004 exchange offering. (6)
4.14 -- Form of Registration Rights Agreement, dated as of March 24, 2004,
between the registrant and each Investor taking part in the March 24,
2004 exchange offering. (6)
4.15 -- Form of Warrant, dated June 2004, issued to purchasers pursuant to
Securities Purchase Agreement, dated as of June 1, 2004, among the
registrant and certain investors. (7)
4.16 -- Form of Warrant, dated June 2004, issued to placement agent in
connection with Securities Purchase Agreement, dated as of June 1,
2004, among the registrant and certain investors. (7)
4.17 -- Registration Rights Agreement, dated as of June 2004, among the
registrant and certain investors. (7)
4.18 -- Promissory Note, dated November 14, 2003, issued by the registrant
to David Gajda. (10)
4.19 -- Promissory Note, dated November 14, 2003, issued by the registrant
to Robert Jackovich.(10)
4.20 -- Form of Subsidiary Guarantee to be entered into by certain
subsidiaries of the registrant pursuant to the Securities Purchase
Agreement, dated as of February 9, 2005 among the registrant and the
several investors party thereto. (9)
4.21 -- Form of Debenture to be issued to the Purchasers pursuant to the
Securities Purchase Agreement, dated as of February 9, 2005 among the
registrant and the several investors party thereto. (9)
4.22 -- Form of Warrant to be issued to the Purchasers pursuant to the
Securities Purchase Agreement, dated as of February 9, 2005 among the
registrant and the several investors party thereto. (9)
4.23 -- Form of Registration Rights Agreement, among the registrant and
certain investors pursuant to the Securities Purchase Agreement, dated
as of February 9, 2005 among the registrant and the several investors
party thereto. (9)
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.*
24.1 -- Power of Attorney (included on signature page).*
-------------------------------
* Filed herewith.
Documents Incorporated Herein by Reference:
(1) Previously filed with the Securities and Exchange Commission on November 4,
2003 as an exhibit to the registrant's Amendment No. 3 to Registration Statement
on Form SB-2 (File No. 333-107711).
(2) Previously filed with the Securities and Exchange Commission on August 6,
2003 as an exhibit to the registrant's Registration Statement on Form SB-2 (File
No. 333-107711).
(3) Previously filed with the Securities and Exchange Commission on September
22, 2003 as an exhibit to the registrant's Amendment No. 1 to Registration
Statement on Form SB-2 (File No. 333-107711).
(4) Previously filed with the Securities and Exchange Commission on February 17,
2004 as an exhibit to the registrant's Form 10-QSB (File No. 001-31810).
(5) Previously filed with the Securities and Exchange Commission on April 2,
2004 as an exhibit to the registrant's Form 8-K (File No. 001-31810).
(6) Previously filed with the Securities and Exchange Commission on April 29,
2004 as an exhibit to the registrant's Form 8-K (File No. 001-31810).
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(7) Previously filed with the Securities and Exchange Commission on June 2, 2004
as an exhibit to the registrant's Form 8-K (File No. 001-31810).
(8) Previously filed with the Securities and Exchange Commission on November 8,
2004 as an exhibit to the registrant's Form 8-K/A (File No. 001-31810).
(9) Previously filed with the Securities and Exchange Commission on February 10,
2005 as a exhibit to the registrant's Form 8-K (File No. 001-31810).
(10) Previously filed with the Securities and Exchange Commission on June 25,
2004 as a exhibit to the registrant's Form 10-KSB (File No. 001-31810).
(11) Previously filed with the Securities and Exchange Commission on February
14, 2005 as an exhibit to the registrant's Form 10-QSB (File No. 001-31810).
(b) Financial Statement Schedules
All schedules are omitted as the required information is inapplicable or
the information is presented in the Consolidated Financial Statements or Notes
thereto.
ITEM 17. UNDERTAKINGS
UNDERTAKINGS REQUIRED BY REGULATION S-B, ITEM 512(a).
The undersigned registrant 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 SEC 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.
UNDERTAKING REQUIRED BY REGULATION S-B, ITEM 512(e).
Insofar as indemnification for liabilities arising under the
Securities Act, may be permitted to directors, officers and controlling persons
of the registrant pursuant to any arrangement, provision or otherwise, the
registrant has been advised that in the opinion of the SEC 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
II-5
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant 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 registrant 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.
UNDERTAKINGS REQUIRED BY REGULATION S-B, ITEM 512(f).
The undersigned registrant hereby undertakes that:
(1) For determining any liability under the Securities Act,
treat the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant under Rule 424(b)(1) or (4) or 497(h) under
the Securities Act as part of this Registration Statement as of the time the SEC
declared it effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement for the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering of these securities.
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SIGNATURES
In accordance with the requirements of the Securities Act of
1933, the registrant hereby certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 for the resale of
shares of Class A common stock and authorized this registration statement to be
signed on its behalf by the undersigned, in the City of Morristown, State of New
Jersey, on the 11th day of March, 2005.
ACCESS INTEGRATED TECHNOLOGIES, INC.
By: /S/ A. DALE MAYO
-------------------------------------------------
A. Dale Mayo, President and
Chief Executive Officer
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 Officer March 11, 2005
----------------------------------------- and Chairman of the Board of
A. Dale Mayo Directors
(Principal Executive Officer)
/S/ KEVIN J. FARRELL Senior Vice President -- Data Center March 11, 2005
----------------------------------------- Operations and Director
Kevin J. Farrell
Senior Vice President -- Business March 11, 2005
----------------------------------------- Development and Director
Brett E. Marks
/S/ GARY S. LOFFREDO Senior Vice President -- Business March 11, 2005
----------------------------------------- Affairs, General Counsel, Secretary
Gary S. Loffredo and Director
/S/ BRIAN D. PFLUG Senior Vice President -- Accounting March 11, 2005
----------------------------------------- and Finance
Brian D. Pflug (Principal Financial and Accounting
Officer)
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/S/ ROBERT DAVIDOFF Director March 11, 2005
-----------------------------------------
Robert Davidoff
/S/ WAYNE L. CLEVENGER Director March 11, 2005
-----------------------------------------
Wayne L. Clevenger
/S/ MATTHEW W. FINLAY Director March 11, 2005
-----------------------------------------
Matthew W. Finlay
Director March 11, 2005
-----------------------------------------
Gerald C. Crotty
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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.
24.1 -- Power of Attorney (included on signature page).
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