Delaware
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001-31810
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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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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
9.01
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Financial
Statements and Exhibits
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Signature
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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
9.01
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Financial
Statements and Exhibits.
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By:
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/s/ Brian D. Pflug | ||
Name:
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Brian
D. Pflug
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||
Title:
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Senior
Vice President—Accounting and Finance
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||
Exhibit
Number |
Description
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10.1
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Cinedigm
Digital Cinema Corp. Management Incentive Award
Plan
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3.1.
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In General
-
Participants shall be selected by the Committee from among those Employees
who, in the opinion of the Committee, are in a position to make
significant contributions to the success of the Company. The selection of
an Employee as a Participant with respect to a Performance Period shall
not entitle such individual to be selected as a Participant with respect
to any other Performance Period. If, due to hiring, promotion, or
demotion, the Committee determines that an Employee becomes eligible to
participate in the Plan for a Performance Period, or that a Participant
ceases to be so eligible, then the Committee shall have the discretion to
provide that such individual shall be eligible for a prorated Award, as
and to the extent it may determine.
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4.1
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Award
Schedule
- The
Committee shall establish, in writing, an Award Schedule for each
Performance Period
.
The Award Schedule shall set forth the applicable Performance Period,
Performance Measure(s), Performance Goal(s), and Compensation Formula(s)
and such other information as the Committee may determine. Award Schedules
may vary from Performance Period to Performance Period and from
Participant to Participant.
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4
.2
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Award Determination
- As
soon as practicable after the close of each Performance Period, the amount
of the Award, if any, earned by a Participant for such Performance Period
shall be determined in accordance with the Participant’s Compensation
Formula(s). A Participant shall be eligible to receive a payment in
respect of an Award only to the extent derived from the Compensation
Formula(s) as applied against the level of performance actually achieved
with respect to the Performance Goal(s) for such Performance Period;
provided, however, that the Committee may use its discretion to increase
or decrease the amount of the Award otherwise payable. All determinations
regarding the achievement of Performance Goal(s) and the amounts earned by
a Participant will be made by the
Committee.
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4.3
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Award Payment
- Awards
shall be paid as soon as practical after the amount thereof has been
determined, but in no event more than two and a half months after the end
of the Performance Period with respect to which such Award was earned.
Awards may be paid in cash, Company common stock (or common stock units),
or a combination thereof, as determined by the Committee. Awards of
Company common stock and common stock units may be subject to such
conditions as the Committee may determine and shall be made under, and in
accordance with the terms of, 2000 Equity Incentive Plan of Access
Integrated Technologies, Inc.
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4.4
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Clawback Provision -
To
the extent permitted by law, if the Compensation Committee determines that
a Participant has received an Award based on the achievement of financial
results or other criteria that were subsequently determined to be
incorrect and the amount of such Award would have been less had such
financial results or other criteria been correct,
then
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the
Compensation Committee may seek to recover from such Participant all or
part of such Award as it deems appropriate under the circumstances, or may
reduce future Award payments
accordingly.
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5.1.
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In General -
Notwithstanding Section 4, no Award shall be payable to a
Participant with respect to a Performance Period if such Participant is
not an Employee on the date of payment of such Award, except as otherwise
provided in the Award Schedule or this Section
5.
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5.2.
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Death, Disability or Retirement
-
If a Participant’s employment with the Company terminates due to
death, Disability or Retirement, the Participant or his estate, as the
case may be, may be paid a prorated Award or such other amount as the
Committee may determine, at the same time that Awards are otherwise paid
under the Plan.
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6.1
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In General -
The
Committee will have full and complete authority, in its sole and absolute
discretion, (i) to exercise all of the powers granted to it under the
Plan, (ii) to construe, interpret and implement the Plan and any related
document, (iii) to prescribe, amend and rescind rules relating to the
Plan, (iv) to make all determinations necessary or advisable in
administering the Plan, and (v) to correct any defect, supply any omission
and reconcile any inconsistency in the
Plan.
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6.2
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Determinations -
The
actions and determinations of the Committee or others to whom authority is
delegated under the Plan on all matters relating to the Plan and any
Awards will be final and conclusive. Such determinations need not be
uniform and may be made by it selectively among persons who receive, or
are eligible to receive, Awards under the Plan, whether or not such
persons are similarly situated.
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6.3
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Appointment of Experts -
The Committee may appoint such accountants, counsel, and other
experts as it deems necessary or desirable in connection with the
administration of the Plan.
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6.4
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Delegation -
The
Committee may delegate to Employees the authority to execute and deliver
such instruments and documents, to do all such acts and things, and to
take all such other steps deemed necessary, advisable or convenient for
the effective administration of the Plan in accordance with its terms and
purposes.
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6.5
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Books and Records -
The
Committee and others to whom the Committee has delegated such duties shall
keep a record of all their proceedings and actions and shall maintain all
such books of account, records and other data as shall be necessary for
the proper administration of the
Plan.
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6.6
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Payment of Expenses
-
The Company shall pay all reasonable expenses of
administering the Plan, including, but not limited to, the payment of
professional and expert fees.
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7.1
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Nonassignability -
No
Award will be assignable or transferable (including pursuant to a pledge
or security interest) other than by will or by laws of descent and
distribution.
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7.2
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Withholding Taxes -
Whenever payments under the Plan are to be made or deferred, the
Company will withhold therefrom, or from any other amounts payable to or
in respect of the Participant, an amount sufficient to satisfy any
applicable governmental withholding tax requirements related thereto in
accordance with the Company’s normal payroll
practices.
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7.3
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Amendment or Termination of the
Plan
- The Plan may be amended or terminated by the Committee in
any respect.
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7.4
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Other Plans, Payments or Awards
-
The adoption of the Plan shall not be construed
as creating any limitations on the power of the Board of Directors of the
Company or the Committee to adopt such other incentive arrangements as
either may deem desirable, including, without limitation, cash or
equity-based compensation arrangements, either tied to performance or
otherwise.
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7.5
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Payments to Other Persons -
If payments are legally required to be made to any person other
than the person to whom any amount is payable under the Plan, such
payments will be made accordingly. Any such payment will be a complete
discharge of the liability of the Company under the
Plan.
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7.6
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Unfunded Plan -
Nothing
in this Plan will require the Company to purchase assets or place assets
in a trust or other entity to which contributions are made or otherwise to
segregate any assets for the purpose of satisfying any obligations under
the Plan. Participants will have no rights under the Plan other than as
unsecured general creditors of the
Company.
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7.7
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Limits of Liability -
Neither the Company nor any other person participating in any
determination of any question under the Plan, or in the interpretation,
administration or application of the Plan, will have any liability to any
party for any action taken or not taken in good faith under the
Plan.
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7.8
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No Right of Employment -
Nothing in this Plan will be construed as creating any contract of
employment or conferring upon any Employee or Participant any right to
continue in the employ or other service of the Company or limit in any way
the right of the Company to change such person’s compensation or other
benefits or to terminate the employment or other service of such person
with or without Cause.
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7.9
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Section Headings -
The
section headings contained herein are for convenience only, and in the
event of any conflict, the text of the Plan, rather than the section
headings, will control.
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7.10
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Invalidity -
If any term
or provision contained herein is to any extent invalid or unenforceable,
such term or provision will be reformed so that it is valid, and such
invalidity or unenforceability will not affect any other provision or part
hereof.
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7.11
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Applicable Law -
The
Plan will be governed by the laws of the State of New Jersey, as
determined without regard to the conflict of law principles
thereof.
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7.12
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Dispute Resolution -
Any
controversy or claim related in any way to the Plan shall be resolved by
arbitration on a de novo standard pursuant to this paragraph and the then
current rules of the American Arbitration Association. The arbitration
shall be held in the city in which the headquarters of the Company is
located, before an arbitrator who is an attorney knowledgeable of
employment law. The arbitrator’s decision and award shall be final and
binding and may be entered in any court having jurisdiction thereof. The
arbitrator shall not have the power to award punitive or exemplary
damages. Issues of arbitrability shall be determined in accordance with
the federal substantive and procedural laws relating to arbitration; all
other aspects shall be interpreted in accordance with the laws of the
State of New Jersey. Each party shall bear its own attorneys’ fees
associated with the arbitration and other costs and expenses of the
arbitration shall be borne as provided by the rules of the American
Arbitration Association.
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7.13
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Effective Date
- The
Plan is effective as of April 1,
2009.
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