UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
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FORM
CURRENT REPORT
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Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers, Compensatory Arrangements of Certain Officers.
On October 17, 2022, Cinedigm Corp. (the “Company”) entered into an employment agreement with Christopher J. McGurk (the “McGurk Employment Agreement”). The McGurk Employment Agreement takes effect on April 1, 2023, after the current employment agreement between the Company and Mr. McGurk (the “Prior Agreement”) terminates on March 31, 2023, and has a term ending on March 31, 2026 with an automatic one-year renewal unless either party provides written notice to the other no later than ninety days prior to the expiration of the initial term. Pursuant to the McGurk Employment Agreement, Mr. McGurk will continue to serve as the Chief Executive Officer and Chairman of the Board of the Company.
The McGurk Employment Agreement also provides that Mr. McGurk will receive an annual base salary of $650,000 and will be eligible for (i) under the Company’s Management Annual Incentive Plan, a target bonus opportunity of $650,000 (the “Target Bonus”) consistent with goals established from time to time by the Compensation Committee (the “Compensation Committee”) of the Company’s Board of Directors, (ii) under the Company’s 2017 Equity Incentive Plan (the “Plan”), performance share units for up to 500,000 shares of the Company’s Class A common stock (the “Common Stock”), subject to EBITDA targets to be determined in the sole and absolute discretion of the Compensation Committee and financial performance targets, and such other terms as the Compensation Committee shall determine, and (iii) under the Plan, 2,500,000 stock appreciation rights (“SARs”) having an exercise price of $0.48 and a term of ten (10) years, one-third (1/3) of which will vest on April 1 of each of 2023, 2024 and 2025, provided that any unvested SARs shall immediately vest upon termination following a Change in Control (as defined in the Plan) or a termination other than for Cause (as defined in the McGurk Employment Agreement). Mr. McGurk will also be entitled to participate in all benefit plans and programs that the Company provides to its senior executives.
The McGurk Employment Agreement provides that, in the event of a termination without Cause (as defined in the McGurk Employment Agreement) or a resignation for Good Reason (as defined in the McGurk Employment Agreement), Mr. McGurk shall be entitled to payment of (i) the greater of any Base Salary for the remainder of the Term or eighteen (18) months’ Base Salary at the time of termination and (ii) an amount equivalent to one and one-half (1.5) times the average of the last two (2) bonus payments under the MAIP, if any, under the McGurk Employment Agreement. In the event of, on or after April 1, 2023 and within two (2) years after a Change in Control (as defined in the Plan), a termination without Cause (other than due to Mr. McGurk’s death or disability), a resignation for Good Reason, or upon notice by the Company that it does not wish to renew the Term (as defined in the McGurk Employment Agreement), then in lieu of receiving the amounts described above, Mr. McGurk would be entitled to receive a lump sum payment equal to three (3) times the sum of (a) his then-current annual Base Salary and (b) his Target Bonus for the year of termination.
The foregoing description of the McGurk Employment Agreement is qualified in its entirety by reference to such agreement, which is filed herewith as Exhibit 10.1.
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Item 9.01 Financial Statements and Exhibits.
EXHIBIT INDEX
| Exhibit No. | Description | |
| 10.1 | Employment Agreement between Cinedigm Corp. and Christopher J. McGurk dated as of October 17, 2022.* | |
| 10.2 | Form of Notice of Performance-Based Restricted Stock Unit Award | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
| * | Portions of this exhibit have been omitted pursuant to Rule 601(b)(10) of Regulation S-K. The omitted information is not material and would likely cause competitive harm to the registrant if publicly disclosed. |
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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: October 19, 2022
| By: | /s/ Gary S. Loffredo | |
| Name: | Gary S. Loffredo | |
| Title: | President, Chief Operating Officer, General Counsel & Secretary |
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Exhibit 10.1
**Portions of this exhibit have been omitted pursuant to Rule 601(b)(10) of Regulation S-K. The omitted information is not material and would likely cause competitive harm to the registrant if publicly disclosed.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of the 17th day of October, 2022, effective as of the 1st day of April, 2023, by and between Cinedigm Corp., a Delaware Corporation, 244 Fifth Avenue, Suite M289, New York, NY 10001 (the “Company”), and Christopher J. McGurk, having an address at 8383 Wilshire Blvd., Suite 400, Beverly Hills, CA 90211 (the “Employee”).
WITNESSETH:
WHEREAS, the Company and the Employee entered into an amended and restated employment agreement on December 10, 2020, which expires on March 31, 2023;
WHEREAS, the Company desires to continue to employ the services of the Employee and the Employee desires to continue to be employed by the Company beyond March 31, 2023 upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and intending to be legally bound hereby, the parties hereby agree as follows:
1. Employment.
(a) The Company agrees to employ the Employee, and the Employee agrees to be employed by the Company under the terms of this Agreement, for the period stated in paragraph 3 hereof and upon the other terms and conditions herein provided.
(b) The Employee affirms and represents that, other than as provided herein, he is under no obligation to any party that is in any way inconsistent with, or that imposes material restrictions upon, the Employee’s employment by the Company or the Employee’s responsibilities or undertakings under this Agreement.
2. Position and Responsibilities. The Employee shall continue to serve as Chief Executive Officer (“CEO”) and Chairman of the Board of Directors of the Company (the “Board”). The Employee’s principal place of employment will be located in metropolitan Los Angeles, California or remotely as agreed by the Employee and the Company. The Employee shall be responsible for such duties as are commensurate with his office and as may from time to time be reasonably assigned to the Employee by the Board. The Employee shall report directly to the Board of Directors of the Company. Except as otherwise provided herein, the Employee will devote his substantial full business time throughout the Term to the services required of him hereunder. The Employee will render his business services to the Company during the Term and will use his best efforts, judgment and energy to improve and advance the operations, programs, services and interests of the Company in a manner consistent with the duties of his position. Notwithstanding the foregoing, as long as it does not materially interfere with the Employee’s employment hereunder, the Employee may participate in educational, welfare, social, religious and civic organizations. The Employee may serve on additional boards of directors, other than the one he currently holds at IDW Media Holdings, Inc., only with the approval of the Compensation Committee of the Board (“Committee”), which approval shall not be unreasonably withheld or delayed.
3. Term. Except as otherwise provided for herein, the term of this Agreement (“the Term”) shall be from April 1, 2023 (the “Effective Date”) to March 31, 2026. This Agreement shall automatically renew for another one (1) year term, unless either party provides written notice to the other party no later than ninety (90) days before the expiration of the Term that the party does not wish to renew the Term of this Agreement. Upon the expiration of the Term, this Agreement, except for the provisions that survive pursuant to this paragraph 3 and paragraphs 8 and 6(c), will have no further force or effect.
4. Compensation, Reimbursement of Expenses.
(a) Salary. For all services rendered by the Employee in any capacity during his employment under this Agreement, including, without limitation, service as an executive, officer, director, or member of any committee of the Company or of any subsidiary, affiliate, or division thereof, the Company shall pay the Employee, in accordance with the Company’s normal payroll practices, a salary (“Base Salary”) at the rate of $650,000 per year commencing with the Effective Date, subject to annual reviews and increases in the sole discretion of the Committee.
(b) Bonus. Employee shall be eligible to participate in the Company’s Management Annual Incentive Plan or any amended or successor plan thereto (“MAIP”). The target bonus shall be $650,000 (each such target bonus for the applicable fiscal year, the “Target Bonus”). The Employee’s Target Bonus shall be based on Company performance with goals to be established annually by the Compensation Committee with consultation of the Employee provided that the ultimate decision shall be made by the Compensation Committee in its sole discretion. Bonuses shall be paid at the same time bonuses are paid to other executives of the Company, which payment shall be during the calendar year that includes the close of such fiscal year, but no later than August 31st following the fiscal year for which the bonus is earned, and shall be subject to the terms of the MAIP.
(c) Reimbursement of Expenses. In accordance with Company policies then in effect, the Company shall pay directly, or reimburse the Employee for, reasonable travel, entertainment and other business-related expenses incurred by the Employee in the performance of his duties under this Agreement.
(d) Performance Share Units. The Employee is a participant in the Company’s 2017 Equity Incentive Plan (“EIP”) and shall be awarded 500,000 performance share units (“PSUs”) as approved by the Board of Directors. Subject to EBITDA targets to be determined in the sole and absolute discretion of the Compensation Committee and the Board of Directors, the Employee will also be eligible to receive shares of Company common stock (“PSU Shares”), subject to the Company’s discretion to pay such award in cash or in stock. The award described in this paragraph will be subject to the specific terms of separate Notices of Award that will be provided to the Employee; provided, however, that if ** ($ ** ) in annual fiscal year revenue is achieved between the Effective Date of this Agreement and March 31, 2026, the Employee shall vest in 100% of any PSUs awarded under this paragraph; and further provided that, in the event of any conflict between the provisions of this paragraph and the Notices of Award, the provisions of this paragraph shall control.
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(e) Long-Term Incentive Award. The Employee shall receive an award of 2,500,000 stock appreciation rights (“SARs”) pursuant to the EIP upon mutual execution of this Agreement. The SARs will have an exercise/strike price equal to the fair market value of the date of the grant. The SARs granted under this paragraph shall vest as follows: one-third (1/3) on April 1, 2023; one-third (1/3) on April 1, 2024; and one-third (1/3) on April 1, 2025. Any unvested SARs shall immediately vest upon termination following a Change in Control (as defined in the EIP) or a termination other than for Cause under Section 6 of this Agreement. SARs may be settled by the Company in cash or shares at the sole and absolute discretion of the Compensation Committee, which may consider, among other factors, the availability of shares under the EIP. Other SARs features such as length of term, and termination provisions shall be consistent with prior option grants, subject to the sole and absolute discretion of the Compensation Committee. The award described in this paragraph will be subject to the specific terms of separate Notices of Award that will be provided to the Employee.
5. Participation in Benefit Plans; Office Support. The Employee will be eligible to participate in all benefit plans and programs that the Company provides to its senior executives in line with the Company’s current practices, including medical, dental, vision, disability, life insurance and paid time off plans, all in accordance with the terms and conditions of such benefit plans and programs as may be modified by the Company in its sole discretion or as required by law from time to time.
The Company will provide the Employee with office and clerical support appropriate to his position, including a private office, an administrative assistant and parking privileges. Notwithstanding the foregoing, the Employee will not be entitled to any automobile allowance.
6. Termination.
(a) The Company shall have the right to terminate this Agreement and the Employee’s employment prior to the expiration of the Term for “Cause” (as defined below). The Employee has the right to resign and terminate this Agreement at any time without “Good Reason” (as defined below) upon thirty (30) days’ written notice, which notice period may be waived at the discretion of the Company. 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 paragraph 6(a), except any and all obligations provided by law and the payment of Base Salary (pursuant to paragraph 4(a)) up to and including the termination date, bonus earned and approved by the Committee (pursuant to paragraph 4(b) and/or 4(e)), reimbursement of expenses incurred prior to the termination date (pursuant to paragraph 4(c)), and benefits accrued prior to the termination date (pursuant to paragraph 5).
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(b) The Company shall also have the right to terminate this Agreement and the Employee’s employment prior to the expiration of the Term other than for Cause upon thirty (30) days’ notice and the Employee has the right to resign and terminate this Agreement at any time for Good Reason (each such termination shall not include a termination of employee’s employment with the Company due to the Employee’s death or Disability). If, prior to the end of the Term, the Company terminates this Agreement and the Employee’s employment for any reason other than for Cause (and other than due to the Employee’s death or Disability) or if the Employee resigns for Good Reason (as defined below), the Employee shall be entitled to receive the amounts payable under paragraph 6(a), plus the payment of (i) any Salary for the remainder of the Term or eighteen (18) month’s Base Salary at the time of termination, whichever is greater and (ii) an amount equivalent to one and one-half (1.5) times the average of the last two (2) payments of the MAIP Bonus, if any, under this Agreement (collectively referred to herein as “Severance”). Subject to paragraph 6(f) below, the Severance shall be paid in equal monthly installments, as of the first day of each month following the date of termination; provided that the first of such payment shall be made in the month following sixty (60) days after such termination; provided that the first of such payments would include any amounts that would have been payable absent the 60-day delay in commencement date, and such payments shall continue for the duration of the Term or such 18-month period, as applicable (which payment period is referred to herein as the “Severance Period”). The Company shall be entitled to reduce the amounts paid under this paragraph 6(b) by the amounts paid to the Employee in the same period by any other entity.
(c) If, beginning on April 1, 2023 and prior to the end of the Term, and within two (2) years after a Change in Control (as defined in the EIP), the Employee’s employment is terminated (i) by the Company without Cause (and other than due to the Employee’s death or Disability), (ii) by the Employee for Good Reason, or (iii) upon notice by the Company under paragraph 3 of this Agreement that the Company does not wish to renew the Term of this Agreement, then in lieu of the amount payable under paragraph 6(b), Employee will receive a lump sum payment equal to three (3) times the sum of (a) Employee’s then-current annual Base Salary, and (b) Employee’s Target Bonus for the year of termination; provided, however, that such payment shall be limited to an amount which would not result in an “excess parachute payment” as that term is defined in Internal Revenue Code section 280G, as determined in the sole good faith discretion of the Company. Subject to paragraph 6(f) below, payment of the amount due under this paragraph 6(c) shall be made as soon as practicable following the date on which the termination occurs; but in no event later than sixty (60) days following the date of such termination and the Employee will not have the right to designate the taxable year of the payment.
(d) For purposes of this Agreement, “Cause” means any of the following: (i) the Employee’s conviction of or plea of nolo contendere to a felony or other crime involving moral turpitude, (ii) the Employee’s material breach of a material provision of this Agreement that is not corrected within thirty (30) days following written notice of such breach sent by the Company to the Employee, (iii) the Employee’s willful misconduct in the performance of his material duties under this Agreement, (iv) the Employee’s performance of his material duties in a manner that is grossly negligent, and (v) the Employee’s failure to attempt to fully comply with any lawful directive of the Board which is not corrected within thirty (30) days following written notice of such breach sent by the Company to the Employee. Whether or not “Cause” exists shall be determined solely by the Company in its reasonable, good faith discretion.
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(e) For purposes of this Agreement, “Good Reason” means, without the Employee’s written consent, (i) a material and substantially adverse reduction in title or job responsibilities compared with title or job responsibilities on the Effective Date, which may include a change of title and position during the Term (provided that such change in title relates to a material and substantially adverse reduction in job responsibilities or reporting structure), (ii) any requirement that the Employee relocate to a work location more than 50 miles from the metropolitan Los Angeles area; or (iii) any material breach of the Agreement by the Company. Notwithstanding the foregoing, Good Reason will be deemed to exist only in the event that: (i) the Employee gives written notice to the Company of his claim of Good Reason and the specific grounds for his claim within ninety (90) days following the occurrence of the event upon which his claim rests, (ii) the Company fails to cure such breach within thirty days (30) of receiving such notice (“Cure Period”), and (iii) the Employee gives written notice to the Company to terminate his employment within fifteen (15) days following the Cure Period.
(f) Notwithstanding the foregoing, if Employee is a “specified employee” (as such term is defined in Section 409A of the Internal Revenue Code (“Section 409A”)) and the provisions of Treasury Regulation 1.409A-3(i)(2) apply because payments due under this Agreement constitute deferred compensation for purposes of Section 409A, payments under this paragraph 6 shall in no event be made prior to six months after the Participant’s separation from service (the “Suspension Period”). All payments suspended during the Suspension Period will be paid in a lump sum and the normal payment schedule will resume at the end of the Suspension Period. Each of the affected payments under this paragraph (f) shall be a separate payment for purposes of Section 409A of the Code.
(g) Notwithstanding any other provision of this Agreement to the contrary, the Employee shall not be entitled to Severance or Change in Control payments, and the Company shall not be obligated to make such payments, under this paragraph 6 unless (i) the Employee materially complies with the restrictive covenants by which he is bound (whether pursuant to this Agreement or otherwise), including, but not limited to, any non-competition agreement, non-solicitation agreement, confidentiality agreement or invention assignment agreement signed by the Employee, and (ii) the Employee executes, delivers and does not revoke a commercially reasonable general release in form and substance acceptable to both the Company and Employee no later than sixty (60) days following the effective date of termination of employment. To the extent the Company makes any Severance or Change in Control payment to the Employee prior to the execution and delivery or a permissible revocation of the release described in clause (ii), the Employee fails to execute or deliver the release or otherwise revokes the release, then the Employee will be obligated to repay to the Company the full amount of any such Severance or Change in Control payment theretofore made to the Employee within ninety (90) days following the termination of the Employee’s employment.
7. Death or Disability. Upon the death or Disability (as defined below) of the Employee prior to the end of the Term, this Agreement shall terminate and no further payments shall be made other than those provided for by law and the payment of Base Salary (pursuant to paragraph 4(a)) up to and including the termination date, bonus earned and approved by the Committee (pursuant to paragraph 4(b), (e) and/or (f)), reimbursement of expenses incurred prior to such termination (pursuant to paragraph 4(c)), and benefits (pursuant to paragraph 5) accrued prior to the date of such death or Disability but not yet paid. For purposes of this paragraph 7, Disability shall mean any physical or mental incapacity that is documented by qualified medical experts and that results in the Employee’s inability to perform his essential material duties and responsibilities for the Company, with reasonable accommodation, for a period of ninety (90) days in any consecutive twelve (12) month period, all as determined in the good faith judgment of the Board.
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8. Restrictive Covenants. The Employee hereby covenants, agrees and acknowledges as follows:
(a) Confidential Information. In the course of his employment by the Company, the Employee will receive and/or be in possession of confidential information of the Company and its parent, subsidiaries, affiliates and divisions, including, but not limited to, information relating to: (i) operational procedures, financial statements or other financial information, contract proposals, business plans, training and operations methods and manuals, personnel records, and management systems policies or procedures; (ii) information pertaining to future plans and developments; and (iii) other tangible and intangible property that is used in the operations of the Company but not made public. The information and trade secrets relating to the business of the Company described in this paragraph 8(a) are hereinafter referred to collectively as the “Confidential Information,” provided that the term Confidential Information will not include any information: (x) that is or becomes generally publicly available (other than as a result of violation of this Agreement by the Employee or someone under his control or direction or (y) that the Employee receives on a non-confidential basis from a source (other than the Company or its representatives) that is not known by him to be bound by an obligation of secrecy or confidentiality to the Company.
(b) Non-Disclosure. The Employee agrees that he will not, without the prior written consent of the Company, during the period of his employment or at any time thereafter, disclose or make use of any such Confidential Information, except as may be required by law (and, in such case, he will immediately notify the Company of such disclosure request) or in the course of his employment hereunder. The Employee agrees that all tangible materials containing Confidential Information, whether created by the Employee or others, that comes into his custody or possession during his employment, will be and are the exclusive property of the Company.
(c) Return of Confidential Information and Property. Upon termination of the Employee’s employment for any reason whatsoever, he will immediately surrender to the Company all Confidential Information and property of the Company in his possession, custody or control in whatever form maintained (including, without limitation, computer discs and other electronic media), including all copies thereof. The Employee shall be allowed to make and keep a copy of all personal information, including, but not limited to, personal information contained in his contacts directory. Any Confidential Information that cannot be returned or destroyed shall be kept confidential by the Employee at all times.
(d) Non-Competition. The Employee agrees that, while employed by the Company and for one year after the cessation of his employment with the Company for any reason other than expiration of the Term or a termination pursuant to paragraph 6(b) or 6(c), he will not become employed by or otherwise engage in or carry on, whether directly or indirectly as a principal, agent, consultant, partner or otherwise, any business with any person, partnership, business, corporation, company or other entity (or any affiliate, subsidiary, parent or division thereof) that is in direct competition with the Company.
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(e) Non-Solicitation/No-Hiring. The Employee agrees that, while employed by the Company and for the greater of one year after the cessation of his employment with the Company for any reason or the period during which the Employee receives Severance or Change in Control payments, he will not (i) solicit or induce or attempt to solicit or induce any employee, director or consultant to terminate his or her employment or other engagement with the Company or (ii) employ or retain (or in any way assist, participate in or arrange for the employment or retention of) any person who is employed or retained by the Company or any of its parents, subsidiaries, affiliates and divisions or who was employed or retained by the Company or any of its parents, subsidiaries, affiliates and divisions both within the six (6) month period immediately preceding the Employee’s contemplated employment or retention of such person and on the date the Employee’s employment with the Company ended.
(f) Injunctive Relief and Other Remedies. The Employee acknowledges that the foregoing confidentiality, non-competition and non-solicitation/no-hiring provisions are reasonable and necessary for the protection of the Company and its parent, subsidiaries, affiliates and divisions, and that they will be materially and irrevocably damaged if these provisions are not specifically enforced. Accordingly, the Employee agrees that, in addition to any other relief or remedies available to the Company and its parent, subsidiaries, affiliates and divisions, the Company will be entitled to seek an appropriate injunctive or other equitable remedy for the purposes of restraining Employee from any actual or threatened breach of those provisions, and no bond or security will be required in connection therewith. If any of the foregoing confidentiality, non-competition and no-solicitation/no-hiring provisions are deemed invalid or unenforceable, these provisions will be deemed modified and limited to the extent necessary to make them valid and enforceable.
9. 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.
10. Effect of Prior Agreements. This Agreement contains the entire understanding between the parties hereto and supersedes any and all prior agreements between the Company and the Employee.
11. Notices. All notices that are required or may be given pursuant to the terms of this Agreement will be in writing and will be sufficient in all respects if given in writing and (i) delivered personally, (ii) mailed by certified or registered mail, return receipt requested and postage prepaid, or (iii) sent via a responsible overnight courier, to the parties at their respective addresses set forth above, or to such other address or addresses as either party will have designated in writing to the other party hereto. The date of the giving of such notices delivered personally or by carrier will be the date of their delivery and the date of giving of such notices by certified or registered mail will be the date five days after the posting of the mail.
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12. 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, which shall not be unreasonably withheld or delayed; provided, however, that nothing in this paragraph 12(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 409A.
(i) Notwithstanding any other provision of this Agreement, it is intended that the provisions of this Agreement satisfy the provisions of Section 409A of the Internal Revenue Code and this Agreement shall be interpreted and administered, as necessary, so that the payments and benefits set forth herein either shall be exempt from or shall comply with the requirements of Section 409A. To the extent that the Company determines that any provision of this Agreement would cause the Employee to incur any additional tax or interest under Section 409A, the Company shall be entitled to reform such provision to attempt to comply with or be exempt from Section 409A. To the extent that any provision hereof is modified in order to comply with Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Employee and the Company without violating the provisions of Section 409A.
(ii) Notwithstanding anything in this Agreement or elsewhere to the contrary, a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits that constitute “non-qualified deferred compensation” within the meaning of Section 409A upon or following a termination of the Employee’s employment unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service” and the date of such separation from service shall be the termination date for purposes of any such payment or benefits. In no event may the Employee, directly or indirectly, designate the calendar year of any payment to be made under this Agreement or otherwise which constitutes a “deferral of compensation” within the meaning of Section 409A.
(iii) All expenses or other reimbursements paid pursuant to this Agreement or other policy or program of the Company that are taxable income to the Employee shall in no event be paid later than the end of the calendar year next following the calendar year in which the Employee incurs such expense or pays such related tax. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, and (iii) such payments shall be made on or before the last day of the Employee’s taxable year following the taxable year in which the expense was incurred.
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(iv) Nothing contained in this Agreement or any other agreement between the Employee and the Company or any policy, plan, program or arrangement of the Company shall constitute any representation or warranty by the Company regarding compliance with Section 409A.
13. Entire Agreement; Modification; Waiver.
(a) Entire Agreement. This Agreement represents the complete agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, promises or representations of the parties, including any prior employment agreement or similar agreement between the parties.
(b) 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 the Employee.
(c) 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.
14. 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.
15. Headings. The headings of paragraphs herein are included solely for convenience of reference and shall not control the meaning or interpretation of any of the provisions of this Agreement.
16. Governing Law. This Agreement shall be governed by and construed in accordance with, the laws of the State of New York, without giving effect to the choice of law principles thereof to the extent that the application of the laws of another jurisdiction would be required thereby. The Employee and the Company hereby consent to the jurisdiction of the Federal and State courts located in the borough of Manhattan in New York City, New York, and each party waives any objection to the venue of any such suit, action or proceeding and the right to assert that any such forum is not a convenient forum, and irrevocably consents to the jurisdiction of the Federal and State courts located in the borough of Manhattan in New York City, New York in any such suit, action or proceeding
17. Survival of Provisions. Neither the termination of this Agreement, nor of the Employee’s employment hereunder, will terminate or affect in any manner any provision of this Agreement that is intended by its terms to survive such termination, including without limitation, the provisions of paragraph 8 of this Agreement.
18. Authority to Enter into this Agreement. Both the Company and the Employee represent that they have the authority to enter into this Agreement and neither party is subject to any restriction or limitation that would prevent them from performing their duties and obligations hereunder.
19. Indemnification. The Company shall indemnify the Employee in the event the Employee is a party, or is threatened to be made a party, to any threatened, pending or contemplated action, suit, or proceeding (other than an action by or in the right of the Company) by reason of the fact that the Employee is an officer or director of the Company against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the Employee in connection with such action, suit, or proceeding if the Employee acted in good faith and in a manner the Employee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe the Employee’s conduct was unlawful.
[signature page follows]
9
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 Corp. | ||
| By: | /s/ Gary S. Loffredo | |
|
Gary S. Loffredo | ||
| Chief Operating Officer and General Counsel | ||
| Christopher J. McGurk | |
| /s/ Christopher J. McGurk | |
| Christopher J. McGurk |
10
Exhibit 10.2
Template for PSU Grants
Open Performance Criteria and Alternative Provisions
NOTICE OF PERFORMANCE–BASED RESTRICTED STOCK UNIT AWARD
under the
CINEDIGM CORP. 2017 EQUITY INCENTIVE PLAN
This AWARD, made as of the __ day of _________, 20__, by Cinedigm Corp., a Delaware corporation (the “Company”), to «Name» (“Participant”), is made pursuant to and subject to the provisions of the Company’s 2017 Equity Incentive Plan (the “Plan”). All terms that are used herein that are defined in the Plan shall have the same meanings given them in the Plan.
Contingent Performance Share Units
| 1. | Grant Date. Pursuant to the Plan, the Company, on ___________ __, 20__ (the “Grant Date”), granted Participant an incentive award (“Award”) in the form of [_#_] Performance-Based Restricted Stock Units (“Performance Share Units” or “PSU”) (which number of Units is also referred to herein as the “Target Units”), subject to the terms and conditions of the Plan and subject to the terms and conditions set forth herein. Each Performance Share Unit shall have a value equal to one share of the Company’s Class A Common Stock based on the Market Price of the Stock on the relevant determination date. |
[IF APPLICABLE-- The Award shall be divided into separate tranches as follows-- ___________________________________. Unless otherwise indicated below, the provisions of this Notice of Award shall apply to [both/all] Unit Tranches.].
| 2. | Restrictions. Except as otherwise provided in this Award, the Performance Share Units are unearned, nontransferable and are subject to a substantial risk of forfeiture. In addition, the Performance Share Units shall not be earned, and Participant’s interest in the Performance Share Units granted hereunder shall be forfeited, except to the extent that the following paragraphs are satisfied. |
| 3. | Participant Bound by Plan. Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof. |
| 4. | Performance Criteria. Participant’s Performance Share Units shall be earned as soon as practicable after the end of the relevant Measurement Period based on the formulae and terms below (to the nearest whole Performance Share Unit). Such Performance Share Units shall be subject to the terms and conditions set forth in the following paragraphs of this Notice of Award. |
| (a) | The Measurement Period for the Performance Share Units is the period running from ____________ __, 20__ to __________________ __, 20__. |
| (b) |
[Description of Performance Criteria and Definitions of all Relevant Terms to be inserted]
Page 1 of 5
Template for PSU Grants
Open Performance Criteria and Alternative Provisions
| 5. | Earning and Vesting of Performance Share Units. As soon as practicable after the end of the Measurement Period, a determination shall be made by the Committee of the number of whole Units that Participant has earned. The date as of which the Committee determines the number of Units earned shall be the “Award Date.” All Units that are earned [As applicable— |
ALTERNATIVE A-- shall be vested in accordance with the following schedule:
OR
ALTERNATIVE B--shall be immediately vested.
| 6. | Time of Payment. Payment of Participant’s vested Performance Share Units shall be made as soon as practicable after the Award has become vested, but in no event later than March 15th of the calendar year after the year in which the Award becomes vested. |
| 7. | Form of Payment. The vested Performance Share Units shall be paid, as determined solely at the discretion of the Company, [As Applicable-- in (a) whole shares of the Company’s Common Stock, (b) cash, or (c) a combination of both Stock and cash.] |
Termination of Employment [During the Measurement Period/Before the Award Date] [or Vesting Period]
| 8. | [(a) During the Measurement Period/Before the Award Date]. Anything in this Notice of Award to the contrary notwithstanding, if Participant separates from service during the Measurement Period but prior to the forfeiture of the Performance Share Units under paragraph 9, |
ALTERNATIVE A-- all PSUs that are forfeitable shall be forfeited. OR
ALTERNATIVE B-- if the separation from service is due to a Qualifying Termination Event (as defined below), all PSUs that are forfeitable shall become fully earned and vested as of the Award Date that would apply if there was no separation from service. OR
ALTERNATIVE C-- if the separation from service is due to a Qualifying Termination Event (as defined below), the portion of the PSUs that are forfeitable shall become earned and vested as of the Award Date that would apply if there was no separation from service as to a pro rata portion of the unearned and unvested portion of the PSUs, as determined in accordance with the following sentence. The pro rata portion of the PSUs that shall be earned and vested pursuant to the preceding sentence shall be equal to a fraction (not to exceed 1) of the total PSUs in each unvested Tranche of the PSUs where the numerator of such fraction shall be the number of full months of service performed by Participant after the Grant Date and prior to the Qualifying Termination Date, and the denominator of such fraction shall be determined in accordance with the following table:
| Tranche No. | Denominator |
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Template for PSU Grants
Open Performance Criteria and Alternative Provisions
The non-vested portion of the PSUs shall be forfeited.
[IF APPLICABLE -- (b) After the Measurement Period but prior to the Award Date. Anything in this Notice of Award to the contrary notwithstanding if, after the Measurement Period ends, but prior to the Award Date, Participant experiences a Qualifying Termination Event (as defined below), such Participant shall be entitled to their Target Units as of the Award Date to the extent earned pursuant to paragraph 4, and such earned Units shall be fully vested as of the Award Date.]
| 9. | Forfeiture. Except as provided in paragraph 17, Performance Share Units that are unearned and/or forfeitable shall be forfeited if Participant’s employment with the Company or an Affiliate terminates for any reason other than by reason of a [Qualifying Termination Event or] Change in Control as outlined in Paragraph[s 8, 18 and] 17. |
| 10. | Death of Participant. If Participant dies prior to the vesting of their Performance Share Units, any earned Performance Share Units shall be paid to their Beneficiary. Participant shall have the right to designate a Beneficiary in accordance with procedures established under the Plan for such purpose. If Participant fails to designate a Beneficiary, or if at the time of the Participant’s death there is no surviving Beneficiary, any earned Performance Share Units will go to the Participant’s estate. |
General Provisions
| 11. | No Right to Continued Employment. Neither this Award nor the granting, earning or vesting of Performance Share Units shall confer upon Participant any right with respect to continuance of employment by the Company or an Affiliate, nor shall it interfere in any way with the right of the Company or an Affiliate to terminate the Participant’s employment at any time. |
| 12. | Change in Capital Structure. In accordance with the terms of the Plan, the terms of this grant shall be adjusted as the Committee determines is equitable in the event the Company effects one or more stock dividends, stock split-ups, subdivisions or consolidations of shares or other similar changes in capitalization. |
14. Governing Law. This Award shall be governed by the laws of the State of Delaware and applicable Federal law. All disputes arising under this Award shall be adjudicated solely within the state or federal courts located within the State of Delaware.
15. Conflicts.
(a) In the event of any conflict between the provisions of the Plan as in effect on the Grant Date and the provisions of this Award, the provisions of the Plan shall govern. All references herein to the Plan shall mean the Plan as in effect on the Grant Date.
(b) In the event of any conflict between the provisions of this Award and the provisions of any separate Agreement between the Company and the Participant, the provisions of that separate Agreement shall govern.
Page 3 of 5
Template for PSU Grants
Open Performance Criteria and Alternative Provisions
| 16. | Binding Effect. Subject to the limitations stated above and in the Plan, this Award shall be binding upon and inure to the benefit of the legatees, distributees, and personal representatives of Participant and the successors of the Company. |
| 17. | Change in Control. Anything in this Notice of Award to the contrary notwithstanding, upon a Change in Control (as defined in the Plan), prior to the forfeiture of the Performance Share Units under paragraph 9, |
ALTERNATIVE A -- [all/a pro-rata portion] of the Target Units shall be earned and non-forfeitable as of the date of the Change in Control, based on the higher of actual or target performance as of such date. OR
ALTERNATIVE B—[describe other treatment in compliance with Article 18 of the Plan]
18. [Qualifying Termination Event and] Other Terms.
[If Applicable-- (a) For purposes of this Award, Qualifying Termination Event shall mean a Participant’s death, Disability, termination by the Company or an Affiliate other than for Cause, or voluntary termination for Good Reason.
(b) “Disability” shall mean a Participant’s permanent and total disability within the meaning of Section 22(e)(3) of the Code.
(c)] If the events described in [subparagraph (a) or] paragraph 17 occur after the date that the Participant is advised (upon recommendation by the Committee) that their employment is being, or will be, terminated for Cause, on account of performance or in circumstances that prevent them from being in good standing with the Company, accelerated vesting shall not occur and all rights under this Award shall terminate, and this Award shall expire on the date of Participant’s termination of employment. The Committee shall have the authority to determine whether Participant’s termination from employment is for Cause or for any reason other than Cause.
| 19. | Taxes. Tax withholding requirements attributable to the earning and vesting of these PSUs, including employment taxes, Federal income taxes, and state and local income taxes with respect to the state and locality where, according to the Company’s system of records, Participant resides at the time this Award is earned and vests, except as otherwise might be determined to be required by the Company, will be satisfied by Participant as instructed in the established procedures of the Company. For these purposes, the Company may, at the request of the Participant, withhold from the Award, to the extent paid in Shares, the number of whole Shares of common stock necessary to satisfy tax-withholding requirements attributable to the earning and vesting of the Award. It is Participant’s responsibility to properly report all income and remit all Federal, state, and local taxes that may be due to the relevant taxing authorities as the result of the earning and Vesting of this Award. |
| 20. | Recoupment. In addition to any other applicable provision of the Plan, this Award is subject to the terms of any separate Clawback Policy maintained by the Company, as such Policy may be amended from time to time. |
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Template for PSU Grants
Open Performance Criteria and Alternative Provisions
IN WITNESS WHEREOF, the Company and Participant have each caused this Award to be signed on their behalf.
| CINEDIGM CORP. | ||
| By: | ||
| By: | ||
| Participant | ||
Page 5 of 5
Cover |
Oct. 17, 2022 |
|---|---|
| Cover [Abstract] | |
| Document Type | 8-K |
| Amendment Flag | false |
| Document Period End Date | Oct. 17, 2022 |
| Entity File Number | 001-31810 |
| Entity Registrant Name | Cinedigm Corp. |
| Entity Central Index Key | 0001173204 |
| Entity Tax Identification Number | 22-3720962 |
| Entity Incorporation, State or Country Code | DE |
| Entity Address, Address Line One | 244 Fifth Avenue |
| Entity Address, Address Line Two | Suite M289 |
| Entity Address, City or Town | New York |
| Entity Address, State or Province | NY |
| Entity Address, Postal Zip Code | 10001 |
| City Area Code | 212 |
| Local Phone Number | 206-8600 |
| Written Communications | false |
| Soliciting Material | false |
| Pre-commencement Tender Offer | false |
| Pre-commencement Issuer Tender Offer | false |
| Title of 12(b) Security | Class A Common Stock |
| Trading Symbol | CIDM |
| Security Exchange Name | NASDAQ |
| Entity Emerging Growth Company | false |