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 10, 2010
(Date of earliest event reported)

Cinedigm Digital Cinema 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.)


55 Madison Avenue, Suite 300, Morristown, New Jersey
07960
(Address of principal executive offices)
(Zip Code)


973-290-0080
(Registrant’s telephone number, including area code)

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

 Item 5.02.
 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
 Item 5.07
 Submission of Matters to a Vote of Security Holders.
 Item 9.01
 Financial Statements and Exhibits
 Signature
 

 
 

 

 
2
 


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

(e)                  At the Company’s Annual Meeting of Stockholders on September 14, 2010 (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 and to extend the term thereof until June 1, 2020.

The foregoing description of the Plan Amendment 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.

On September 10, 2010, Cinedigm Digital Cinema Corp. (the “Company”) entered into two Severance Agreements (the “Severance Agreements”), one with Charles Goldwater and the other with Gary S. Loffredo (each, an “Employee,” and together the “Employees”).  Pursuant to the Severance Agreements, each Employee shall receive certain severance benefits in the event his employment with the Company is terminated without reason or resigns for Good Cause (as defined in the Severance Agreements).  The severance benefits provided by the Severance Agreements include twelve months base salary following the effective date of a Severance Event (as defined in the Severance Agreements) and the conversion of certain unvested or partially vested stock options.

The foregoing description of the Severance Agreements is qualified in its entirety by reference to the Severance Agreements, which are attached as Exhibit 10.2 and 10.3 and are incorporated herein by reference.


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

At the Annual Meeting, the stockholders of the Company voted to approve three proposals.  Proxies for the Annual Meeting were solicited pursuant to Regulation 14A under the Exchange Act.  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.  Details of the voting are provided below:

Proposal 1:

To elect ten (10) members of the Company’s Board of Directors to serve until the 2011 Annual Meeting of Stockholders (or until successors are elected or directors resign or are removed).

 
 
Votes For
 
Votes Withheld
 
Broker Non-Votes
Adam M. Mizel
19,000,803
 
122,010
 
11,886,472
Gary S. Loffredo
19,041,429
 
81,384
 
11,886,472
Peter C. Brown
19,042,049
 
80,764
 
11,886,472
Wayne L. Clevenger
18,859,024
 
263,789
 
11,886,472
Gerald C. Crotty
18,902,543
 
220,270
 
11,886,472
Robert Davidoff
18,557,719
 
565,094
 
11,886,472
Matthew W. Finlay
19,043,429
 
79,384
 
11,886,472
Edward A. Gilhuly
19,066,789
 
56,024
 
11,886,472
Martin B. O’Connor, II
18,940,961
 
181,852
 
11,886,472
Laura Nisonger Sims
18,899,450
 
223,363
 
11,886,472
 
 
3
 

 
Proposal 2:

To amend the Company’s Second Amended and Restated 2000 Equity Incentive Plan to increase the total number of shares of Class A Common Stock available for issuance thereunder from 3,700,000 to 5,000,000 and to extend the term thereof until June 1, 2020.
Votes
For
14,684,088
 
Votes
Against
3,168,268
 
Abstentions
1,270,457
 
Broker
Non-Vote
11,886,472

Proposal 3:

To ratify the appointment of EisnerAmper LLP (formally Eisner LLP) as our independent auditors for the fiscal year ending March 31, 2011.
Votes
For
30,647,862
 
Votes
Against
344,537
 
Abstentions
16,886
 
Broker
Non-Vote
0

 
Item 9.01
Financial Statements and Exhibits.

The exhibits are listed in the Exhibit Index following the Signature.

 
4
 

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  September 16, 2010

     
   
By: 
/s/ Brian D. Pflug 
   
Name:
Brian D. Pflug
   
Title:
Senior Vice President—Accounting and Finance
       



 
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EXHIBIT INDEX


Exhibit No.
 
Description
     
10.1
 
Amendment No. 4 dated September 14, 2010 to Second Amended and Restated 2000 Equity Incentive Plan of the Company.
10.2
 
Severance Agreement between Cinedigm Digital Cinema Corp. and Charles Goldwater, dated as of September 10, 2010.
10.3
 
Severance Agreement between Cinedigm Digital Cinema Corp. and Gary S. Loffredo, dated as of September 10, 2010.



 
6
 
 

EXHIBIT 10.1
 
AMENDMENT NO. 4
TO
SECOND AMENDED AND RESTATED
ACCESS INTEGRATED TECHNOLOGIES, INC. 2000 EQUITY INCENTIVE PLAN

AMENDMENT NO. 4, dated as of September 14, 2010 (this “Amendment”), to the Second Amended and Restated 2000 Equity Incentive Plan (as amended, the “Plan”) of Cinedigm Digital Cinema Corp., a Delaware corporation (the “Corporation”).
 
WHEREAS, the Corporation maintains the Plan, effective as of June 1, 2000; and
 
WHEREAS, in order to provide the Corporation with the flexibility to be able to grant additional stock options to its employees, 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 $0.001 per share, which may be issued and sold under the Plan from 5,000,000 shares to 7,000,000 shares and to extend the term of the Plan until June 1, 2020.
 
NOW, THEREFORE, BE IT RESOLVED the Plan is hereby amended as follows:
 
1.           The first sentence of Section 5.2 shall be revised and amended to read as follows:
 
“The total number of shares of Stock (including Restricted Stock, if any) optioned or granted under this Plan during the term of the Plan shall not exceed 7,000,000 shares.”
 
2.           The final sentence of Section 13 shall be revised and amended to read as follows:
 
“No award shall be granted under this Plan on or after June 1, 2020.”
 
3.           The amendment to Section 5.2 shall be effective as of the date first set forth above, which is the date that this Amendment was approved by a majority of the outstanding votes cast at the 2010 meeting of the holders of the Corporation’s Class A Common Stock and Class B Common Stock, and the amendment to Section 13 shall be effective as of June 1, 2010.
 
4.           In all respects not amended, the Plan is hereby ratified and confirmed and remains in full force and effect.

 
CINEDIGM DIGITAL CINEMA CORP.
     
     
 
By:
  /s/ Gary S. Loffredo
   
  Interim Co-CEO
     
     
EXHIBIT 10.2
 

SEVERANCE AGREEMENT

    THIS SEVERANCE AGREEMENT is made and entered into as of the 10 th day of September 2010, by and between Cinedigm Digital Cinema Corp., a Delaware corporation (the "Company"), and Charles Goldwater (the "Employee").

WITNESSETH:

    WHEREAS , in order to induce you to remain in the employ of the Company (all references to such employment include employment by a subsidiary of the Company) and in consideration of your continued service to the Company, the Company agrees that you shall receive certain severance benefits in the event your employment with the Company is terminated, as set forth in this Severance Agreement (the “Agreement”).

    NOW, THEREFORE , in consideration of the mutual covenants and agreements set forth herein, and intending to be legally bound hereby, the parties agree as follows:

    1.            Termination .   (a) The Company shall have the right to terminate the Employee only upon the conviction in a recognized court of law in the United States of Employee of theft or embezzlement of money or property, fraud, unauthorized appropriation of any tangible or intangible assets or property or any other felony involving dishonesty or moral turpitude.  The Company shall have no obligations to the Employee for any period subsequent to the effective date of any termination of this Agreement pursuant to this Section 1(a), except for the payment of salary and benefits earned prior to such termination.

    (b)           In the event that the Company terminates the Employee's employment for reason(s) other than those set forth in Section 1(a) or if the Employee resigns for Good Reason (each, a “Severance Event”), so long as the Employee continues to be in compliance with the provisions of Section 3(b) below, then the Employee shall be entitled to receive twelve (12) months base salary as of the effective date of such Severance Event (the “Effective Date”) payable in accordance with regular payroll practices plus any earned but not yet paid bonuses approved by the Compensation Committee of the Company’s Board of Directors for the fiscal year preceding the Effective Date.  During such period, the Employee shall have a duty to seek other employment, but shall not be required to accept any position other than a position (i) as a senior executive officer with the same general responsibilities that the Employee possessed at the Company at the time of the Employee's termination from the Company and (ii) with a company equal or larger in earnings and tangible net worth than the Company at the time of the Employee's termination.  The Employee may, however, accept any full-time position at any level and at any salary with any entity, profit or non-profit, and the Employee, by accepting such employment, shall be conclusively deemed to have fulfilled his duty to seek employment under this Section 1(b).  The Company shall be entitled to reduce the salary (including bonus) paid to the Employee during his employment by another entity by an amount equal to the amount earned by the Employee from any such employment during such period, provided, that, such salary reduction shall not apply to the extent Employee takes a one-off consulting job.  In the event that a dispute shall arise as to this Section 1(b), (i) the Company shall continue to pay the Employee's
 
 
 
 
 
salary (including bonus) into an escrow account not under the control of the Company and (ii) the Company shall pay the legal fees and expenses incurred by the Employee in litigating any dispute under this Section 1(b) in the event that the Employee prevails in such dispute.
 
 
For these purposes, “Good Reason”  means, without the Employee's consent,  (i) a material reduction in the Employee’s title, base pay or job responsibilities compared with the Employee’s title, base pay or job responsibilities on the date of this Agreement, or (ii) any requirement that the Employee relocate to a work location more than fifty (50) miles from his current location or the City of Los Angeles, California which is considered a material change; provided that, in the event of an event or condition described in (i) or (ii) above, (a) the Employee shall have provided notice to the Company within a period not to exceed 90 days of the initial existence of the event or condition and (b) the Company had at least 30 days to remedy the event or condition but did not do so.

2.            Stock Options; Restricted Stock Units.   Upon the occurrence of a Severance Event:

(a) any vested stock options may continue to be exercised for a period of six (6) months from the Effective Date;

(b) any unvested or partially-vested restricted stock units or stock options having 3-year vesting provisions that are subject to acceleration upon the achievement of specified stock price targets shall be converted, retroactive to the relevant date of grant, to vesting schedules that provide for vesting in three equal portions on the first three anniversaries of the relevant date of grant, provided that such vesting applies only if the Employee was employed by the Company in good standing on the relevant anniversary date; and

(c) all other unvested restricted stock units or stock options shall terminate as of the Effective Date.

    3.            Confidential Information; Non-Competition; Enforceability .

    (a)   The Employee shall not at any time, whether before or after the termination of this Agreement, divulge, furnish or make accessible to anyone (other than in the ordinary course of the business of the Company or any subsidiary thereof) any knowledge or information with respect to confidential or secret designs, processes, formulae, plans, devices, material, or research or development work of the Company or any subsidiary thereof, or with respect to any other confidential or secret aspect of the business of the Company or any subsidiary thereof.

    (b)   For a period of one (1) year from the Effective Date, the Employee shall not, directly or indirectly, engage or become interested in (as owner, stockholder, partner or otherwise) the operation of any business then similar to or in competition (direct or indirect) with the Company within fifty (50) miles of the City of Los Angeles, California.  If any court construes the covenant in this Section 3(b) or any part thereof, to be unenforceable because of its duration or the area covered thereby, the court shall have the power to reduce the duration or area to the extent necessary so that such provision is enforceable.  This paragraph 3(b) shall not apply
 
 
2
 
 
to Employee’s ownership of less than 5% of the stock of a corporation whose stock is traded on a nationally recognized stock exchange.

    (c)   The covenants set forth in this Section 3 shall be deemed separable and the invalidity of any covenant shall not affect the validity or enforceability of any other covenant.  If any period of time or limitation of geographical area stated in Section 3(b) is longer or greater than the maximum period or geographical area permitted by law, then the period of time or geographical area stated therein shall be deemed to be such maximum permissible period of time or geographical area, as the case may be.  All parties recognize that the foregoing covenants are a prime consideration for the Company to enter into this Agreement and that the Company's remedies at law for damages in the event of any breach shall be inadequate.  In the event that there is a breach of any of the foregoing covenants, the Company shall be entitled to institute and prosecute proceedings in any court of competent jurisdiction to enforce specific performance of any such covenants by the Employee or to enjoin the Employee from performing acts in breach of any such covenant.

    4.            Tax Withholding .   The Company shall withhold from any benefits payable under this Agreement all federal, state, local or other taxes as shall be required pursuant to any law or governmental regulation or ruling.

    5.            Effect of Prior Agreements .   This Agreement contains the entire understanding between the parties hereto and supersedes any prior employment agreement between the Company or any predecessor of the Company and the Employee.

    6.            General Provisions .

    (a)            Nonassignability .   Neither this Agreement nor any right or interest hereunder shall be assignable by the Employee or his beneficiaries or legal representatives without the Company's prior written consent; provided, however, that nothing in this Section 6(a) shall preclude (i) the Employee from designating a beneficiary to receive any benefit payable hereunder following his death, or (ii) the executors, administrators, or other legal representatives of the Employee or his estate from assigning any rights hereunder to the person or persons entitled thereto.

    (b)            No Attachment .   Except as required by law, no right to receive payments under this Agreement shall be subject to anticipation, commutation, alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or to execution, attachment, levy, or similar process or assignment by operation of law, and any attempt, voluntary or involuntary, to effect any such action shall be null, void and of no effect.

    (c)            Binding Agreement .   This Agreement shall be binding upon, and inure to the benefit of, the Employee and the Company and their respective permitted successors and assigns.

 
    (d)            Compliance with Section 409A . Notwithstanding any provision of this Agreement to the contrary, distribution of any amounts that constitute “deferred compensation”
 
 
3
 
 
to the Employee due to his “separation from service” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), shall not be made before six months after such separation from service or the Employee’s death, if earlier (the “Six Month Limitation”). At the end of such six-month period, payments that would have been made but for the Six Month Limitation shall be paid in a lump sum, without interest, on the first day of the seventh month following separation from service and remaining payments shall commence, or continue, in accordance with the relevant provisions of this Agreement ;  provided, however , that in the event that any amounts of “deferred compensation” payable to the Employee due to his “separation from service” constitute “separation pay only upon an involuntary separation from service” within the meaning of Section 409A of the Code (“Separation Pay”), then a portion of such Separation Pay, up to two times the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the separation from service occurs (i.e., $490,000 in the event of a separation from service during 2010), whether paid under this Agreement or otherwise, may be paid to the Employee during the six-month period following such separation from service.
 
    7.            Modification and Waiver .

    (a)            Amendment of Agreement .  This Agreement may not be modified or amended except by an instrument in writing signed by the parties hereto, and approved by a majority of the members of the Board who were not nominated by Employee.

    (b)            Waiver .  No term or condition of this Agreement shall be deemed to have been waived, nor shall there be any estoppel against the enforcement of any provision of this Agreement, except by written instrument of the party charged with such waiver or estoppel.  No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than that specifically waived.

    8.            Severability .   If, for any reason, any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement not held so invalid, and each such other provision shall to the full extent consistent with law continue in full force and effect. If any provision of this Agreement shall be held invalid in part, such invalidity shall in no way affect the rest of such provision not held so invalid, and the rest of such provision, together with all other provisions of this Agreement, shall to the full extent consistent with law continue in full force and effect

    9.            Headings .   The headings of sections herein are included solely for convenience of reference and shall not control the meaning or interpretation of any of the provisions of this Agreement.

    10.            Governing Law .   This Agreement has been executed and delivered in the State of New York, and its validity, interpretation, performance, and enforcement shall be governed by the laws of said State other than the conflict of laws provisions of such laws.
 
 
4
 

 
    IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its officers thereunto duly authorized, and the Employee has signed this Agreement, all as of the day and year first above written.

CINEDIGM DIGITAL CINEMA CORP.

By: /s/ Gary S. Loffredo                                                                                             
Gary S. Loffredo
Title: Interim Co-Chief Executive Officer, Senior Vice President—Business Affairs, General Counsel and Secretary

Employee

/s/ Charles Goldwater                                                                                                           
Charles Goldwater

 
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EXHIBIT 10.3
 

SEVERANCE AGREEMENT

THIS SEVERANCE AGREEMENT is made and entered into as of the 10 th day of September 2010, by and between Cinedigm Digital Cinema Corp., a Delaware corporation (the "Company"), and Gary S. Loffredo (the "Employee").

WITNESSETH:

WHEREAS , in order to induce you to remain in the employ of the Company (all references to such employment include employment by a subsidiary of the Company) and in consideration of your continued service to the Company, the Company agrees that you shall receive certain severance benefits in the event your employment with the Company is terminated, as set forth in this Severance Agreement (the “Agreement”).

NOW, THEREFORE , in consideration of the mutual covenants and agreements set forth herein, and intending to be legally bound hereby, the parties agree as follows:

  1.            Termination .   (a) The Company shall have the right to terminate the Employee only upon the conviction in a recognized court of law in the United States of Employee of theft or embezzlement of money or property, fraud, unauthorized appropriation of any tangible or intangible assets or property or any other felony involving dishonesty or moral turpitude.  The Company shall have no obligations to the Employee for any period subsequent to the effective date of any termination of this Agreement pursuant to this Section 1(a), except for the payment of salary and benefits earned prior to such termination.

  (b)           In the event that the Company terminates the Employee's employment for reason(s) other than those set forth in Section 1(a) or if the Employee resigns for Good Reason (each, a “Severance Event”), so long as the Employee continues to be in compliance with the provisions of Section 3(b) below, then the Employee shall be entitled to receive twelve (12) months base salary as of the effective date of such Severance Event (the “Effective Date”) payable in accordance with regular payroll practices plus any earned but not yet paid bonuses approved by the Compensation Committee of the Company’s Board of Directors for the fiscal year preceding the Effective Date.  During such period, the Employee shall have a duty to seek other employment, but shall not be required to accept any position other than a position (i) as a senior executive officer with the same general responsibilities that the Employee possessed at the Company at the time of the Employee's termination from the Company and (ii) with a company equal or larger in earnings and tangible net worth than the Company at the time of the Employee's termination.  The Employee may, however, accept any full-time position at any level and at any salary with any entity, profit or non-profit, and the Employee, by accepting such employment, shall be conclusively deemed to have fulfilled his duty to seek employment under this Section 1(b).  The Company shall be entitled to reduce the salary (including bonus) paid to the Employee during his employment by another entity by an amount equal to the amount earned by the Employee from any such employment during such period, provided, that, such salary reduction shall not apply to the extent Employee takes a one-off consulting job.  In the event that a dispute shall arise as to this Section 1(b), (i) the Company shall continue to pay the Employee's
 
 
 
 
 
salary (including bonus) into an escrow account not under the control of the Company and (ii) the Company shall pay the legal fees and expenses incurred by the Employee in litigating any dispute under this Section 1(b) in the event that the Employee prevails in such dispute.

   For these purposes, “Good Reason”  means, without the Employee's consent,  (i) a material reduction in the Employee’s title, base pay or job responsibilities compared with the Employee’s title, base pay or job responsibilities on the date of this Agreement, or (ii) any requirement that the Employee relocate to a work location more than fifty (50) miles from his current location or the City of New York, New York which is considered a material change; provided that, in the event of an event or condition described in (i) or (ii) above, (a) the Employee shall have provided notice to the Company within a period not to exceed 90 days of the initial existence of the event or condition and (b) the Company had at least 30 days to remedy the event or condition but did not do so.

2.            Stock Options; Restricted Stock Units.   Upon the occurrence of a Severance Event:

(a) any vested stock options may continue to be exercised for a period of six (6) months from the Effective Date;

(b) any of the 90,000 restricted stock units granted on May 9, 2008 that remain unvested and any of the 90,000 stock options granted on October 21, 2009 that remain unvested shall immediately vest;

(c) any unvested or partially-vested restricted stock units or stock options having 3-year vesting provisions that are subject to acceleration upon the achievement of specified stock price targets shall be converted, retroactive to the relevant date of grant, to vesting schedules that provide for vesting in three equal portions on the first three anniversaries of the relevant date of grant, provided that such vesting applies only if the Employee was employed by the Company in good standing on the relevant anniversary date; and

(d) all other unvested restricted stock units or stock options shall terminate as of the Effective Date.

    3.            Confidential Information; Non-Competition; Enforceability .

    (a)   The Employee shall not at any time, whether before or after the termination of this Agreement, divulge, furnish or make accessible to anyone (other than in the ordinary course of the business of the Company or any subsidiary thereof) any knowledge or information with respect to confidential or secret designs, processes, formulae, plans, devices, material, or research or development work of the Company or any subsidiary thereof, or with respect to any other confidential or secret aspect of the business of the Company or any subsidiary thereof.

    (b)   For a period of one (1) year from the Effective Date, the Employee shall not, directly or indirectly, engage or become interested in (as owner, stockholder, partner or otherwise) the operation of any business then similar to or in competition (direct or indirect) with the Company within fifty (50) miles of the City of New York, New York.  If any court construes
 
 
2
 
 
the covenant in this Section 3(b) or any part thereof, to be unenforceable because of its duration or the area covered thereby, the court shall have the power to reduce the duration or area to the extent necessary so that such provision is enforceable.  This paragraph 3(b) shall not apply to Employee’s ownership of less than 5% of the stock of a corporation whose stock is traded on a nationally recognized stock exchange.

    (c)   The covenants set forth in this Section 3 shall be deemed separable and the invalidity of any covenant shall not affect the validity or enforceability of any other covenant.  If any period of time or limitation of geographical area stated in Section 3(b) is longer or greater than the maximum period or geographical area permitted by law, then the period of time or geographical area stated therein shall be deemed to be such maximum permissible period of time or geographical area, as the case may be.  All parties recognize that the foregoing covenants are a prime consideration for the Company to enter into this Agreement and that the Company's remedies at law for damages in the event of any breach shall be inadequate.  In the event that there is a breach of any of the foregoing covenants, the Company shall be entitled to institute and prosecute proceedings in any court of competent jurisdiction to enforce specific performance of any such covenants by the Employee or to enjoin the Employee from performing acts in breach of any such covenant.

    4.            Tax Withholding .   The Company shall withhold from any benefits payable under this Agreement all federal, state, local or other taxes as shall be required pursuant to any law or governmental regulation or ruling.

    5.            Effect of Prior Agreements .   This Agreement contains the entire understanding between the parties hereto and supersedes any prior employment agreement between the Company or any predecessor of the Company and the Employee.

    6.            General Provisions .

    (a)            Nonassignability .   Neither this Agreement nor any right or interest hereunder shall be assignable by the Employee or his beneficiaries or legal representatives without the Company's prior written consent; provided, however, that nothing in this Section 6(a) shall preclude (i) the Employee from designating a beneficiary to receive any benefit payable hereunder following his death, or (ii) the executors, administrators, or other legal representatives of the Employee or his estate from assigning any rights hereunder to the person or persons entitled thereto.

    (b)            No Attachment .   Except as required by law, no right to receive payments under this Agreement shall be subject to anticipation, commutation, alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or to execution, attachment, levy, or similar process or assignment by operation of law, and any attempt, voluntary or involuntary, to effect any such action shall be null, void and of no effect.

    (c)            Binding Agreement .   This Agreement shall be binding upon, and inure to the benefit of, the Employee and the Company and their respective permitted successors and assigns.
 
 
3
 
 
    (d)            Compliance with Section 409A . Notwithstanding any provision of this Agreement to the contrary, distribution of any amounts that constitute “deferred compensation” to the Employee due to his “separation from service” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), shall not be made before six months after such separation from service or the Employee’s death, if earlier (the “Six Month Limitation”). At the end of such six-month period, payments that would have been made but for the Six Month Limitation shall be paid in a lump sum, without interest, on the first day of the seventh month following separation from service and remaining payments shall commence, or continue, in accordance with the relevant provisions of this Agreement ;  provided, however , that in the event that any amounts of “deferred compensation” payable to the Employee due to his “separation from service” constitute “separation pay only upon an involuntary separation from service” within the meaning of Section 409A of the Code (“Separation Pay”), then a portion of such Separation Pay, up to two times the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the separation from service occurs (i.e., $490,000 in the event of a separation from service during 2010), whether paid under this Agreement or otherwise, may be paid to the Employee during the six-month period following such separation from service.
 

    7.            Modification and Waiver .

    (a)            Amendment of Agreement .  This Agreement may not be modified or amended except by an instrument in writing signed by the parties hereto, and approved by a majority of the members of the Board who were not nominated by Employee.

    (b)            Waiver .  No term or condition of this Agreement shall be deemed to have been waived, nor shall there be any estoppel against the enforcement of any provision of this Agreement, except by written instrument of the party charged with such waiver or estoppel.  No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than that specifically waived.

    8.            Severability .   If, for any reason, any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement not held so invalid, and each such other provision shall to the full extent consistent with law continue in full force and effect. If any provision of this Agreement shall be held invalid in part, such invalidity shall in no way affect the rest of such provision not held so invalid, and the rest of such provision, together with all other provisions of this Agreement, shall to the full extent consistent with law continue in full force and effect

    9.            Headings .   The headings of sections herein are included solely for convenience of reference and shall not control the meaning or interpretation of any of the provisions of this Agreement.

    10.            Governing Law .   This Agreement has been executed and delivered in the State of New York, and its validity, interpretation, performance, and enforcement shall be governed by the laws of said State other than the conflict of laws provisions of such laws.
 
 
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    IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its officers thereunto duly authorized, and the Employee has signed this Agreement, all as of the day and year first above written.

CINEDIGM DIGITAL CINEMA CORP.

By: /s/ Brian D. Pflug                                                                                         
Name: Brian D. Pflug
Title:   SVP

Employee

/s/ Gary S. Loffredo                                                                                                                         
Gary S. Loffredo


 
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