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

 

October 23, 2020

(Date of earliest event reported)

 

Cinedigm Corp.

(Exact name of registrant as specified in its charter)

 

Delaware 001-31810 22-3720962
(State or other jurisdiction
of incorporation)
(Commission File Number) (IRS Employer
Identification No.)

 

237 West 35th Street, Suite 605, New York, New York 10001
(Address of principal executive offices) (Zip Code)

 

212-206-8600

(Registrant’s telephone number, including area code)

 

(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):

 

¨Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transmission period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class Trading Symbol(s) Name of each exchange on which registered
Class A Common Stock CIDM Nasdaq Global Market

 

 

 

 

Item 5.02Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

On October 23, 2020, Cinedigm Corp. (the "Company") amended its 2017 Equity Incentive Plan (the "Plan Amendment") to increase the number of shares authorized for issuance thereunder from 4,098,270 to 14,098,270.

 

The foregoing description of the Plan Amendment is qualified in its entirety by reference to such amendment, which is filed herewith as Exhibit 10.1.

 

Item 5.03Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

On October 23, 2020, the Company filed a Certificate of Amendment to the Fifth Amended and Restated Certificate of Incorporation (the “Charter Amendment”), pursuant to which the number of shares of Class A common stock authorized for issuance was increased to 200,000,000 shares.

 

The foregoing description of the Charter Amendment is qualified in its entirety by reference to such amendment, which is filed herewith as Exhibit 3.1. 

 

Item 5.07Submission of Matters to a Vote of Security Holders.

 

(a)   At the Annual Meeting of Stockholders on October 23, 2020 (the “Annual Meeting”) of the Company, the stockholders of the Company voted on six proposals. Proxies for the Annual Meeting were solicited pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended. There was no solicitation of proxies in opposition to management’s nominees as listed in the proxy statement and all of management’s nominees were elected to our Board of Directors.

 

(b)   Details of the voting are provided below:

 

Proposal 1:

 

To elect six (6) members of the Company’s Board of Directors to serve until the 2020 Annual Meeting of Stockholders (or until successors are elected or directors resign or are removed).

 

  Votes For Votes Withheld Broker Non-Votes
Christopher J. McGurk 60,283,355 4,300,413 13,331,269
Peter C. Brown 60,568,970 4,014,798 13,331,269
Tom Bu 59,868,985 4,714,783 13,331,269
Patrick W. O’Brien 60,395,975 4,187,793 13,331,269
Zvi M. Rhine 60,914,822 3,668,946 13,331,269
Peixin Xu 57,751,848 6,831,920 13,331,269

 

Proposal 2:

  Votes For Votes Against Abstentions Broker Non-Votes

To approve by non-binding vote, executive compensation.

61,034,130 3,478,773 70,865 13,331,269

 

 

 

 

Proposal 3:        
  Votes For Votes Against Abstentions Broker Non-Votes
To approve an amendment to the Company's 2017 Equity Incentive Plan to increase the total number of shares of Class A Common Stock available for issuance thereunder. 60,985,140 3,560,706 37,922 13,331,269

 

Proposal 4:        
  Votes For Votes Against Abstentions Broker Non-Votes
To approve an amendment to the Company's Certificate of Incorporation to increase the number of shares of Class A Common Stock authorized for issuance. 68,794,904 8,968,280 151,853 N/A

 

Proposal 5:        
  Votes For Votes Against Abstentions Broker Non-Votes
To approve an amendment to the Company's Certificate of Incorporation to effect a reverse stock split, subject to the Board’s discretion. 68,524,611 9,284,326 106,100 N/A

 

Proposal 6:

  Votes For Votes Against Abstentions Broker Non-Votes
To ratify the appointment of EisnerAmper LLP as our independent auditors for the fiscal year ending March 31, 2021. 72,240,752 5,564,304 109,981 N/A

 

Item 9.01Financial Statements and Exhibits.

 

Exhibit No.Description

 

3.1Certificate of Amendment to Fifth Amended and Restated Certificate of Incorporation
10.1Amendment No. 3 to the 2017 Equity Incentive Plan.

 

 

 

 

SIGNATURE

 

Pursuant to the requirements 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.

 

    CINEDIGM CORP.
Dated: October 26, 2020   By: 

 

 

 

/s/ Gary S. Loffredo

      Gary S. Loffredo
Chief Operating Officer, President of Digital Cinema, General Counsel and Secretary

 

 

 

 

Exhibit 3.1

 

CERTIFICATE OF AMENDMENT

 

TO

 

FIFTH AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

 

OF

 

CINEDIGM CORP.

 

The undersigned, being the Chief Executive Officer of Cinedigm Corp., a Delaware corporation (the “Corporation”), pursuant to Section 242 of the General Corporation Law of the State of Delaware, as amended (the “DGCL”), does hereby certify as follows:

 

  1. Pursuant to action duly take by the Board of Directors of the Corporation (the “Board”), the Board adopted resolutions (the “Amending Resolutions”) to further amend the Corporation’s Fifth Amended and Restated Certificate of Incorporation of the Corporation (the “Certificate of Incorporation”), as filed with the Delaware Secretary of State on October 31, 2017;
     
  2. Pursuant to a majority action by the Corporation’s Shareholders in accordance with Section 228 of the DGCL, the holders of the Corporation’s outstanding capital stock approved the Amending Resolutions; and

 

  3. The Amending Resolutions were duly adopted in accordance with Section 242 of the DGCL.

 

NOW, THEREFORE, to effect the Amending Resolutions, Section 4.1 of the Certificate of Incorporation shall be deleted in its entirety and replaced as follows:

 

“Section 4.1 Authorized Shares.

 

The total number of shares of capital stock that the Corporation shall have authority to issue is two hundred fifteen million (215,000,000) shares as follows: (i) two hundred million (200,000,000) shares of common stock, of which two hundred million (200,000,000) shares shall be Class A Common Stock, par value $0.001 per share (the “Class A Common Stock”); and (ii) fifteen million (15,000,000) shares of preferred stock, par value $0.001 per share (the “Preferred Stock”) of which twenty (20) shares shall be “Series A Preferred Stock,” and 14,999,980 of which the Board of Directors shall have the authority by resolution or resolutions to fix all of the powers, preferences and rights, and the qualifications, limitations and restrictions of the Preferred Stock permitted by the Delaware General Corporation Law and to divide the Preferred Stock into one or more class and/or classes and designate all of the powers, preferences and rights, and the qualifications, limitations and restrictions of each class permitted by the Delaware General Corporation Law.”

 

 

Except as specifically set forth herein, the Certificate of Incorporation shall not be amended, modified or otherwise altered by this Certificate of Amendment.

 

* * *

 

 

[Signature page follows]

 

 

 

 

IN WITNESS WHEREOF, the Corporation has caused this Amendment to the Certificate of Incorporation of Cinedigm Corp. to be signed by Christopher J. McGurk, its Chief Executive Officer, this 23rd day of October, 2020, who acknowledges that the foregoing is the act and deed of the Corporation and that the facts stated herein are true.

 

  By: /s/ Christopher J. McGurk
  Name: Christopher J. McGurk
  Title: Chief Executive Officer

 

 

 

Exhibit 10.1

 

 

AMENDMENT NO. 3

TO

CINEDIGM CORP. 2017 EQUITY INCENTIVE PLAN

 

AMENDMENT NO. 3, dated as of October 23, 2020 (this "Amendment"), to the 2017 Equity Incentive Plan (as amended, the "Plan") of Cinedigm Corp., a Delaware corporation (the "Corporation").

 

WHEREAS, the Corporation maintains the Plan, effective as of August 31, 2017; and

 

WHEREAS, the Board of Directors of the Corporation deems it to be in the best interest of the Corporation and its stockholders to amend the Plan in order to increase the maximum number of shares of the Corporation's Class A Common Stock, par value $.001 per share, which may be issued and sold under the Plan from 4,098,270 shares to 14,098,270 shares.

 

NOW, THEREFORE, BE IT RESOLVED the Plan is hereby amended as follows:

 

1.The first sentence of Section 4.1(a) shall be revised and amended to read as follows:

 

"The maximum number of Shares available for issuance to Participants under this Plan, inclusive of Shares issued and Shares underlying outstanding awards granted on or after the Effective Date, is 14,098,270 Shares, which includes 128,270 unused Shares carried over from the Existing Incentive Plan."

 

2.This Amendment shall be effective as of the date first set forth above.

 

3.In all respects not amended, the Plan is hereby ratified and confirmed and remains in full force and effect.

 

 

  CINEDIGM CORP.
     
  By: /s/ Christopher J. McGurk
  Name: Christopher J. McGurk
  Title: Chief Executive Officer