form8-k_1377610.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
September
30, 2009
(Date of
earliest event reported)
Cinedigm
Digital Cinema Corp.
(Exact
name of registrant as specified in its charter)
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Delaware
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000-51910
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22-3720962
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(State
or other jurisdiction
of
incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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55
Madison Avenue, Suite 300, Morristown, New Jersey
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07960
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(Address
of principal executive offices)
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(Zip
Code)
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973-290-0080
(Registrant’s
telephone number, including area code)
Access
Integrated Technologies, Inc.
(Former
name or former address, if changed since last report.)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General
Instruction A.2. below):
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
TABLE OF
CONTENTS
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Item
3.03
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Material
Modification to Rights of Security Holders
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Item
5.02.
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers
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Item
5.03
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Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
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Item
9.01
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Financial
Statements and Exhibits
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Signature
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Item
3.03
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Material
Modification to Rights of Security
Holders.
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On
October 5, 2009, Cinedigm Digital Cinema Corp., f/k/a Access Integrated
Technologies, Inc. (the “Company”), filed with the Secretary of State of the
State of Delaware a Certificate of Amendment (the “NOL Protective Charter
Amendment”) to the Company’s Fourth Amended and Restated Certificate of
Incorporation (the “Charter”) pursuant to Section 242 of the Delaware General
Corporation Law. Pursuant to the NOL Protective Charter Amendment,
the Charter was amended to reclassify the shares of Company’s Class A common
stock and Class B common stock into new shares of Class A common stock and Class
B common stock, respectively (as so reclassified, collectively, the “Common
Stock”), that provide for limitations on the transferability of such Common
Stock in certain circumstances to preserve the value of the Company’s tax net
operating losses. The proposal to approve the NOL Protective Charter
Amendment was disclosed in the Company’s definitive proxy statement that was
first distributed to its stockholders on or about September 18, 2009 (the “Proxy
Statement”) in connection with the Company’s Annual Meeting of Stockholders held
on September 30, 2009 (the “Annual Meeting”). The NOL Protective
Charter Amendment was approved by the Company’s stockholders at the Annual
Meeting.
Common
Stock
Holders
of Class A Common Stock are entitled to one vote for each share of Class A
Common Stock on matters for which shareholders may vote. Holders of
Class B Common Stock are entitled to ten (10) votes for each share of Class B
Common Stock on matters for which shareholders may vote. Each share
of Class B Common Stock is convertible at any time at the holder’s option into
one (1) share of Class A Common Stock. There are no cumulative voting
rights. Subject to preferences that may be applicable to any outstanding shares
of the Company’s preferred stock, the holders of the Company’s Common Stock are
entitled to receive ratably such dividends, if any, as may be declared by the
Company’s Board of Directors (the “Board”) out of funds legally available for
the payment of dividends. In the event of a liquidation, dissolution or winding
up of the Company, the holders of the Company’s Common Stock are entitled to
share ratably in all assets remaining after payment of liabilities and
liquidation preferences of any outstanding shares of the preferred stock of the
Company. Holders of the Company’s Common Stock have no preemptive rights or
rights to convert their Common Stock into any other securities. There are no
redemption or sinking fund provisions applicable to the Common
Stock.
Except
for the restrictions resulting from the NOL Protective Charter Amendment, the
shares of Common Stock have the same rights and preferences as the shares of
common stock prior to the reclassification.
As a
result of the NOL Protective Charter Amendment, the Company’s shares of Common
Stock are also subject to transfer restrictions such that holders of Common
Stock are restricted from attempting to transfer (which includes any direct or
indirect acquisition, sale, transfer, assignment, conveyance, pledge or other
disposition) any of the shares of Common Stock (or options, warrants or other
rights to acquire the Common Stock, or securities convertible or exchangeable
into Common Stock), to the extent that such transfer would (i) create or
result in an individual or entity becoming a 5-percent shareholder of the Common
Stock for purposes of Section 382 of the Internal Revenue Code of 1986, as
amended and the related Treasury Regulations (which are referred to as a “Five
Percent Shareholder”) or (ii) increase the stock ownership percentage of
any existing Five Percent Shareholder.
Transfers
that violate the provisions of the NOL Protective Charter Amendment shall be
null and void ab initio
and shall not be effective to transfer any record, legal, beneficial or any
other ownership of the number of shares which result in the violation of the NOL
Protective Charter Amendment (which shares are referred to as “Excess
Securities”). The purported transferee shall not be entitled to any rights as a
Company stockholder with respect to the Excess Securities. Instead, the
purported transferee would be required, upon demand by the Company, to transfer
the Excess Securities to an agent designated by the Company for the limited
purpose of consummating an orderly arm’s-length sale of such shares. The
net
proceeds
of the sale will be distributed first to reimburse the agent for any costs
associated with the sale, second to the purported transferee to the extent of
the price it paid, and finally any additional amount will go to the purported
transferor, or, if the purported transferor cannot be readily identified, to a
charity designated by the Board. The NOL Protective Charter Amendment
also provides the Company with various remedies to prevent or respond to a
purported transfer that violates its provisions, including that any person who
knowingly violates it, together with any persons in the same control group with
such person, are jointly and severally liable to the Company for such amounts as
will put it in the same financial position as it would have been in had such
violation not occurred. All shares of the Common Stock that were issued in the
reclassification are fully paid and non-assessable.
The NOL
Protective Charter Amendment has an “anti-takeover” effect because, among other
things, the Common Stock issued in exchange for the Old Common Stock restricts
the ability of a person, entity or group to accumulate more than five percent of
the Company’s Common Stock and the ability of persons, entities or groups now
owning more than five percent of the outstanding shares of Common Stock from
acquiring additional shares of the Company’s Common Stock without the approval
of the Board.
Other
Anti-Takeover Provisions
Tax Benefit Preservation Plan.
On August 10, 2009, in accordance with the terms of a Tax Benefit
Preservation Plan (the “Tax Benefit Preservation Plan”) between the Company and
American Stock Transfer & Trust Company, LLC, as Rights Agent, the Company’s
Board of Directors declared a dividend of one right (a “Right”) to purchase one
one-thousandth share of the Company’s Series B Junior Participating Preferred
Stock (“Series B Preferred”) for each outstanding share of Common Stock. Unless
earlier redeemed by the Company in accordance with the Tax Benefit Preservation
Plan, the Rights will become exercisable upon the earlier of (a) the tenth
day following a public announcement (or such later date as may be determined by
the Company’s Board of Directors) that a person or group of affiliated or
associated persons has acquired, or obtained the right to acquire, beneficial
ownership of 4.99% or more of the shares of Common Stock then outstanding, and
(b) the tenth business day (or such later date as may be determined by the
Company’s Board of Directors) after a person or group announces a tender or
exchange offer, the consummation of which would result in ownership by a person
or group of 4.99% or more of the then outstanding shares of Common Stock. The
earlier of such dates is referred to as the “Distribution Date.”
The Tax
Benefit Preservation Plan is intended to protect the Company's ability to carry
forward its net operating losses and certain other tax attributes (collectively,
"NOLs"). The Company has experienced and may continue to experience
substantial operating losses, and for federal and state income tax purposes, the
Company may "carry forward" net operating losses in certain circumstances to
offset current and future taxable income, which will reduce federal and state
income tax liability, subject to certain requirements and
restrictions. These federal and state NOLs can be a valuable asset of
the Company, which may inure to the benefit of the Company and its
stockholders. However, if the Company experiences an "ownership
change," as defined in Section 382 of the Internal Revenue Code of 1986, as
amended (the "Code"), its ability to use the NOLs could be substantially
limited, and the timing of the usage of the NOLs could be substantially delayed,
which could significantly impair the value of the Company's NOL
asset. Generally, an "ownership change" occurs if the percentage of
the Company's stock owned by one or more "five percent stockholders" increases
by more than fifty percentage points over the lowest percentage of stock owned
by such stockholders at any time during the prior three-year period or, if
sooner, since the last "ownership change" experienced by the
Company. A Tax Benefit Preservation Plan with a 4.99% "trigger"
threshold is intended to act as a deterrent to any person acquiring 4.99% or
more of the outstanding shares of Common Stock without the approval of the Board
of Directors. This would protect the Company's NOL asset because
changes in ownership by a person owning less than 4.99% of the Common Stock are
not included in the calculation of "ownership change" for purposes of Section
382 of the Code. The Tax Benefit Preservation Plan includes a procedure whereby
the Board of Directors may consider requests to exempt certain proposed
acquisitions of Common Stock
from the
applicable ownership trigger if the Board determines that the requested
acquisition will not jeopardize or endanger the availability of the NOLs to the
Company
The
Rights are not intended to prevent a takeover of the Company and will not do so.
However, the Rights may have the effect of rendering more difficult or
discouraging an acquisition of the Company deemed undesirable by the Board of
Directors. The Rights may cause substantial dilution to a person or group that
attempts to acquire the Company on terms or in a manner not approved by the
Company’s Board of Directors, except pursuant to an offer conditioned upon the
negation, purchase or redemption of the Rights.
Undesignated Preferred Stock.
The Company’s Board of Directors has the ability to issue preferred stock with
voting or other rights or preferences that could impede the success of any
attempt to change control of the Company.
No Cumulative Voting. The
Delaware General Corporation Law provides that stockholders are not entitled to
the right to cumulate votes in the election of directors unless the certificate
of incorporation of the company provides otherwise. The Charter and the
Company’s bylaws do not provide for cumulative voting.
Anti-Takeover Statutes. The
Company is subject to Section 203 of the Delaware General Corporation Law
which regulates corporate acquisitions of publicly held companies. This law
provides that specified persons who, together with affiliates and associates,
owns, or within three years did own, 15% or more of the outstanding voting stock
of a publicly held Delaware corporation, or an interested stockholder, may not
engage in business combinations with the corporation for a period of three years
after the date on which the person became an interested stockholder, unless the
business combination or the transaction in which the person became an interested
stockholder is approved in advance of the a manner prescribed by Delaware law.
The law defines the term “business combination” to include mergers, asset sales
and other transactions in which the interested stockholder receives or could
receive a financial benefit on other than a pro rata basis with other
stockholders. This provision has an anti-takeover effect with respect to
transactions not approved in advance by the Company’s Board of Directors,
including discouraging takeover attempts that might result in a premium over the
market price for the shares of the Company’s Common Stock.
The
foregoing description is qualified in its entirety by reference to the NOL
Protective Charter Amendment, which is filed as Exhibit 3.1 to this Form 8-K and
is hereby incorporated by reference.
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Item
5.02
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers.
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(d) On
September 30, 2009, the Company increased the number of directors on Board from
nine (9) to ten (10) and appointed Laura Nisonger Sims to fill the resulting
vacancy. These actions were taken pursuant to the terms of the
previously disclosed Private Placement (as defined below) and the approval by
the Company’s stockholders of certain of such terms at the Company’s Annual
Meeting of Stockholders on September 30, 2009 (the “Annual
Meeting”). As previously disclosed, pursuant to the Purchase
Agreement (as defined below), on August 11, 2009, the Company increased the
number of directors on the Board from eight (8) to nine (9) and appointed Edward
A. Gilhuly, a designee of the Majority Holders (as defined in the Purchase
Agreement) to fill the resulting vacancy. Pursuant to the Purchase
Agreement, the Company included in the Proxy Statement a proposal to grant the
Majority Holders the right to designate a second nominee to the
Board. Such proposal was approved by the Company’s stockholders at
the Annual Meeting. In connection with her service on the Board, Ms.
Sims will be entitled to receive retainer fees and awards to which all
non-employee directors are entitled.
Ms. Sims
joined Sageview Capital LP (“Sageview”) as a Principal in 2008. Prior to joining
Sageview, she attended the Stanford Graduate School of Business from
2006 to 2008, obtaining her Masters in Business Administration in 2008. Ms. Sims
had previously been an Associate with TPG Capital from 2003 until 2006. Prior to
joining TPG, Ms. Sims was an analyst at Goldman, Sachs & Co. in the
Communications, Media and Entertainment group of the Investment Banking
Division.
In August
2009, the Company entered into a securities purchase agreement (the “Purchase
Agreement”) with an affiliate of Sageview (the “Purchaser”) pursuant to which
the Company agreed to issue a Senior Secured Note (the “2009 Note”) in the
aggregate principal amount of $75,000,000, all of which is outstanding as of the
date hereof, and warrants (the “2009 Warrants”) to purchase 16,000,000 shares of
Class A Common Stock (the “Private Placement”). The 2009 Note has a
five-year term, which may be extended for up to one 12 month period at the
discretion of the Company if certain conditions are satisfied. Interest on the
2009 Note is 8% per annum to be accrued as an increase in the aggregate
principal amount of the 2009 Note and 7% per annum paid in cash, subject to
increase under certain conditions. No principal or interest has yet been paid on
the Note. The 2009 Note is guaranteed by certain of the Company’s
existing and future subsidiaries. The 2009 Warrants have a seven-year term,
subject to extension in limited circumstances, and an initial exercise price of
$1.37, subject to customary anti-dilution adjustments.
(e) On
September 30, 2009, at the Annual Meeting, the stockholders of the Company
approved an amendment (the “Plan Amendment”) to the Company's Second Amended and
Restated 2000 Equity Incentive Plan, as amended, to increase the total number of
shares of the Company's Class A Common Stock available for issuance thereunder
from 3,700,000 shares to 5,000,000 shares. The Plan Amendment became
effective on September 30, 2009.
The
foregoing description is qualified in its entirety by reference to the Plan
Amendment, which is filed as Exhibit 10.1 to this Form 8-K and is hereby
incorporated by reference.
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Item
5.03
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Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
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On
September 30, 2009, at the Annual Meeting, the stockholders of the Company
approved an amendment to the Charter, and on October 5, 2009 the Company filed
with the Secretary of State of the State of Delaware a Certificate of Amendment
to the Charter (the “Authorized Shares Charter Amendment”) pursuant to Section
242 of the Delaware General Corporation Law. Pursuant to the
Authorized Shares Charter Amendment, the Charter was amended to increase the
number of shares of stock authorized for issuance by an additional 10,000,000
shares and to designate the additional shares as Class A Common Stock. The
proposal to approve the Authorized Shares Charter Amendment was disclosed in the
Proxy Statement.
The
information set forth in Item 3.03 above relating to the NOL Protective Charter
Amendment is incorporated herein by reference.
On
September 30, 2009, at the Annual Meeting, the stockholders of the Company
approved an amendment to the Charter, and on October 5, 2009 the Company filed
with the Secretary of State of the State of Delaware a Certificate of Amendment
to the Charter (the “Name Change Charter Amendment”) pursuant to Section 242 of
the Delaware General Corporation Law. Pursuant to the Name Change
Charter Amendment, the Charter was amended to change the name of the Company
from Access Integrated Technologies, Inc. to Cinedigm Digital Cinema
Corp. The Company’s Class A Common Stock will continue to trade on
the Nasdaq Global Market under the symbol “CIDM.” The proposal to approve the
Name Change Charter Amendment was disclosed in the Proxy
Statement.
The
foregoing descriptions are qualified in their entirety by reference to the
Authorized Shares Charter Amendment and the Name Change Charter Amendment, which
are filed as Exhibit 3.2 and Exhibit 3.3, respectively, to this Form 8-K and are
hereby incorporated by reference.
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Item
9.01
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Financial
Statements and Exhibits.
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The
exhibits are listed in the Exhibit Index following the Signature.
SIGNATURE
Pursuant
to the requirements of Section 13 or 15 (d) of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
Dated as
of October 6, 2009
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By:
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/s/
Gary S. Loffredo |
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Name:
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Gary
S. Loffredo
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Title:
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Senior
Vice President—Business Affairs, General Counsel and
Secretary
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EXHIBIT
INDEX
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Exhibit
Number
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Description
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3.1
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Amendment
dated October 5, 2009 to Fourth Amended and Restated Certificate of
Incorporation of the Company relating to the reclassification of the
Company’s common stock.
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3.2
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Amendment
dated October 5, 2009 to Fourth Amended and Restated Certificate of
Incorporation of the Company relating to the increase in the number of
authorized shares.
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3.3
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Amendment
dated October 5, 2009 to Fourth Amended and Restated Certificate of
Incorporation of the Company relating to the change of the Company’s
name.
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10.1
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Amendment
No. 3 dated September 30, 2009 to Second Amended and Restated 2000 Equity
Incentive Plan of the Company
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