form8a12b-a_1378001.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-A
(Amendment
No. 1)
FOR
REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT
TO SECTION 12(b) OR 12(g) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Cinedigm
Digital Cinema Corp.
(Exact
name of Registrant as specified in its charter)
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Delaware
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22-3720962
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(State
of Incorporation or Organization)
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(I.R.S.
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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Securities
to be registered pursuant to Section 12(b) of the Act:
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Title
of Each Class
To be so Registered
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Name
of Each Exchange on Which
Each Class is to be
Registered
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Class
A Common Stock
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Nasdaq
Global Market
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If
this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A. (c), please check the following box. ý
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If
this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A. (d), please check the following box. ¨
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Securities
Act registration statement file number to which this form
relates: not applicable
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Securities
to be registered pursuant to Section 12(g) of the
Act: None
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The
undersigned hereby amends, as set forth below, the Registration Statement on
Form 8-A filed by the registrant with the Securities and Exchange Commission on
April 12, 2006.
Item
1. Description of Registrant’s
Securities to be Registered.
On
October 5, 2009, Cinedigm Digital Cinema Corp., f/k/a Access Integrated
Technologies, Inc., a Delaware corporation (the "Company "), filed an amendment
(the “NOL Protective Charter Amendment”) to its Fourth Amended and Restated
Certificate of Incorporation (as amended, the “Charter”) to reclassify its
existing Class A common stock, par value $0.001 per share (the “Old Class A
Common Stock”), and Class B common stock, par value $0.001 per share (the “Old
Class B Common Stock” and, together with the Old Class A Common Stock, the “Old
Common Stock”), into shares of new Class A common stock, par value $0.001 per
share (the “Class A Common Stock”), and Class B common stock, par value $0.001
per share (the “Class B Common Stock” and, together with the Class A Common
Stock, the “Common Stock”), respectively, and impose restrictions on transfer of
the Common Stock in certain circumstances. These
restrictions on transfer prohibit certain future transfers of the Common Stock
that could adversely affect the Company’s ability to utilize its net operating
loss carryforwards and certain income tax credits to reduce its federal income
taxes. Pursuant to the NOL Protective Amendment, each share of Old
Class A Common Stock was automatically reclassified into one share of Class A
Common Stock and each share of Old Class B Common Stock was automatically
reclassified into one share of Class B Common Stock (collectively, the
“Reclassification”).
The
authorized capital stock of the Company consists of 75,000,000 shares of Class A
Common Stock, 75,000,000 shares of Old Class A Common Stock, 15,000,000 shares
of Class B Common Stock, 15,000,000 shares of Old Class B Common Stock, and
15,000,000 shares of preferred stock, $0.001 par value per share. The shares of
the Class A Common Stock are currently traded on the NASDAQ Global
Market.
Except
for the restrictions on transfer set forth in the NOL Protective Charter
Amendment and summarized below, the shares of Common Stock have the same rights
and preferences as shares of Old Common Stock.
Common
Stock
Holders
of Class A Common Stock are entitled to one vote for each share of Class A
Common Stock on matters for which shareholders may vote. Holders of
Class B Common Stock are entitled to ten (10) votes for each share of Class B
Common Stock on matters for which shareholders may vote. Each share
of Class B Common Stock is convertible at any time at the holder’s option into
one (1) share of Class A Common Stock. There are no cumulative voting
rights. Subject to preferences that may be applicable to any outstanding shares
of the Company’s preferred stock, the holders of the Common Stock are entitled
to receive ratably such dividends, if any, as may be declared by the Company’s
Board of Directors (the “Board”) out of funds legally available for the payment
of dividends. In the event of a liquidation, dissolution or winding up of the
Company, the holders of the Common Stock are entitled to share ratably in all
assets remaining after payment of liabilities and liquidation preferences of any
outstanding shares of the preferred stock of the Company. Holders of the Common
Stock have no preemptive rights or rights to convert their Common Stock into any
other securities. There are no redemption or sinking fund provisions applicable
to the Common Stock.
As a
result of the NOL Protective Charter Amendment, the shares of Common Stock are
also subject to transfer restrictions such that holders of Common Stock are
restricted from attempting to transfer (which includes any direct or indirect
acquisition, sale, transfer, assignment, conveyance, pledge or other
disposition) any of the shares of Common Stock (or options, warrants or other
rights to acquire the Common Stock, or securities convertible or exchangeable
into Common Stock), to the extent that such transfer would (i) create or
result in an individual or entity becoming a 5-percent shareholder of the Common
Stock for purposes of Section 382 of the Internal Revenue Code of 1986, as
amended and the related Treasury Regulations (which are referred to as a “Five
Percent Shareholder”) or (ii) increase the stock ownership percentage of
any existing Five Percent Shareholder.
Transfers
that violate the provisions of the NOL Protective Charter Amendment shall be
null and void ab initio
and shall not be effective to transfer any record, legal, beneficial or any
other ownership of the number of shares which result in the violation of the NOL
Protective Charter Amendment (which shares are referred to as “Excess
Securities”). The purported transferee shall not be entitled to any rights as a
Company stockholder with respect to the Excess Securities. Instead, the
purported transferee would be required, upon demand by the Company, to transfer
the Excess Securities to an agent designated by the Company for the limited
purpose of consummating an orderly arm’s-length sale of such shares. The net
proceeds of the sale will be distributed first to reimburse the agent for any
costs associated with the sale, second to the purported transferee to the extent
of the price it paid, and finally any additional amount will go to the purported
transferor, or, if the purported transferor cannot be readily identified, to a
charity designated by the Board. The NOL Protective Charter Amendment
also provides the Company with various remedies to prevent or respond to a
purported transfer that violates its provisions, including that any person who
knowingly violates it, together with any persons in the same control group with
such person, are jointly and severally liable to the Company for such amounts as
will put it in the same financial position as it would have been in had such
violation not occurred. All shares of the Common Stock that were issued in the
reclassification are fully paid and non-assessable.
The NOL
Protective Charter Amendment has an “anti-takeover” effect because, among other
things, the Common Stock issued in exchange for the Old Common Stock restricts
the ability of a person, entity or group to accumulate more than five percent of
the Company’s Common Stock and the ability of persons, entities or groups now
owning more than five percent of the outstanding shares of Common Stock from
acquiring additional shares of the Company’s Common Stock without the approval
of the Board.
Other
Anti-Takeover Provisions
Tax Benefit Preservation Plan.
On August 10, 2009, in accordance with the terms of a Tax Benefit
Preservation Plan (the “Tax Benefit Preservation Plan”) between the Company and
American Stock Transfer & Trust Company, LLC, as Rights Agent, the Company’s
Board of Directors declared a dividend of one right (a “Right”) to purchase one
one-thousandth share of the Company’s Series B Junior Participating Preferred
Stock (“Series B Preferred”) for each outstanding share of Common Stock. Unless
earlier redeemed by the Company in accordance with the Tax Benefit Preservation
Plan, the Rights will become exercisable upon the earlier of (a) the tenth
day following a public announcement (or such later date as may be determined by
the Company’s Board of Directors) that a person or group of affiliated or
associated persons has acquired, or obtained the right to acquire, beneficial
ownership of 4.99% or more of the shares of Common Stock then outstanding, and
(b) the tenth business day (or such later date as may be determined by the
Company’s Board of Directors) after a person or group announces a tender or
exchange offer, the consummation of which would result in ownership by a person
or group of 4.99% or more of the then outstanding shares of Common Stock. The
earlier of such dates is referred to as the “Distribution Date.”
The Tax
Benefit Preservation Plan is intended to protect the Company's ability to carry
forward its net operating losses and certain other tax attributes (collectively,
"NOLs"). The Company has experienced and may continue to experience
substantial operating losses, and for federal and state income tax purposes, the
Company may "carry forward" net operating losses in certain circumstances to
offset current and future taxable income, which will reduce federal and state
income tax liability, subject to certain requirements and
restrictions. These federal and state NOLs can be a valuable asset of
the Company, which may inure to the benefit of the Company and its
stockholders. However, if the Company experiences an "ownership
change," as defined in Section 382 of the Internal Revenue Code of 1986, as
amended (the "Code"), its ability to use the NOLs could be substantially
limited, and the timing of the usage of the NOLs could be substantially delayed,
which could significantly impair the value of the Company's NOL
asset. Generally, an "ownership change" occurs if the percentage of
the Company's stock owned by one or more "five percent stockholders" increases
by more than fifty percentage points over the lowest percentage of stock owned
by such stockholders at any time during the prior three-year period or, if
sooner, since the last "ownership change" experienced by the
Company. A Tax Benefit Preservation Plan with a 4.99% "trigger"
threshold is intended to act as a deterrent to any person acquiring 4.99% or
more of the outstanding shares of Common Stock
without
the approval of the Board of Directors. This would protect the
Company's NOL asset because changes in ownership by a person owning less than
4.99% of the Common Stock are not included in the calculation of "ownership
change" for purposes of Section 382 of the Code. The Tax Benefit Preservation
Plan includes a procedure whereby the Board of Directors may consider requests
to exempt certain proposed acquisitions of Common Stock from the applicable
ownership trigger if the Board determines that the requested acquisition will
not jeopardize or endanger the availability of the NOLs to the
Company
The
Rights are not intended to prevent a takeover of the Company and will not do so.
However, the Rights may have the effect of rendering more difficult or
discouraging an acquisition of the Company deemed undesirable by the Board of
Directors. The Rights may cause substantial dilution to a person or group that
attempts to acquire the Company on terms or in a manner not approved by the
Company’s Board of Directors, except pursuant to an offer conditioned upon the
negation, purchase or redemption of the Rights.
Undesignated Preferred Stock.
The Company’s Board of Directors has the ability to issue preferred stock with
voting or other rights or preferences that could impede the success of any
attempt to change control of the Company.
No Cumulative Voting. The
Delaware General Corporation Law provides that stockholders are not entitled to
the right to cumulate votes in the election of directors unless the certificate
of incorporation of the company provides otherwise. The Charter and the
Company’s bylaws do not provide for cumulative voting.
Anti-Takeover Statutes. The
Company is subject to Section 203 of the Delaware General Corporation Law
which regulates corporate acquisitions of publicly held companies. This law
provides that specified persons who, together with affiliates and associates,
owns, or within three years did own, 15% or more of the outstanding voting stock
of a publicly held Delaware corporation, or an interested stockholder, may not
engage in business combinations with the corporation for a period of three years
after the date on which the person became an interested stockholder, unless the
business combination or the transaction in which the person became an interested
stockholder is approved in advance of the a manner prescribed by Delaware law.
The law defines the term “business combination” to include mergers, asset sales
and other transactions in which the interested stockholder receives or could
receive a financial benefit on other than a pro rata basis with other
stockholders. This provision has an anti-takeover effect with respect to
transactions not approved in advance by the Company’s Board of Directors,
including discouraging takeover attempts that might result in a premium over the
market price for the shares of the Company’s Common Stock.
This
summary description of the NOL Protective Charter Amendment does not purport to
be complete and is qualified in its entirety by reference to the NOL Protective
Charter Amendment, which is filed as Exhibit 3.3 to this Form 8-A and is hereby
incorporated by reference.
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Item
2.
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Exhibits.
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The
following exhibits are filed as a part of this Registration
Statement:
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Exhibit
No.
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Description
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3.1
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Fourth
Amended and Restated Certificate of Incorporation of the Company, as
amended. (1)
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3.2
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Certificate
Of Designations of Series B Junior Participating Preferred Stock.
(2)
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3.3
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Amendment
dated October 5, 2009 to Fourth Amended and Restated Certificate of
Incorporation of the Company relating to the reclassification of the
Company’s common stock.
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3.4
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Bylaws
of the Company. (3)
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4.1
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Tax
Benefit Preservation Plan, dated as of August 10, 2009, between the
Company and American Stock Transfer & Trust Company, as Rights Agent.
(2)
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(1)
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Previously
filed with the Securities and Exchange Commission on February 9, 2009 as
an exhibit to the Company's Form 10-Q for the quarter ended December 31,
2008 (File No. 000-51910).
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(2)
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Previously
filed with the Securities and Exchange Commission on August 12, 2009 as an
exhibit to the Company’s Form 8-K (File No.
001-51910).
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Previously
filed with the Securities and Exchange Commission on August 6, 2003 as an
exhibit to the Company’s Registration Statement on Form SB-2 (File No.
333-107711).
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SIGNATURE
Pursuant to the requirements of Section
12 of the Securities Exchange Act of 1934, the registrant has duly caused this
registration statement to be signed on its behalf by the undersigned, thereto
duly authorized.
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CINEDIGM
DIGITAL CINEMA CORP.
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Date:
October 6, 2009
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By:
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/s/ Gary S. Loffredo |
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Name:
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Gary
S. Loffredo
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Title:
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Senior
Vice President – Business Affairs
and
General Counsel
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INDEX TO
EXHIBITS
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Exhibit No.
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Description
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3.1
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Fourth
Amended and Restated Certificate of Incorporation of the Company, as
amended. (1)
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3.2
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Certificate
Of Designations of Series B Junior Participating Preferred Stock.
(2)
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3.3
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Amendment
dated October 5, 2009 to Fourth Amended and Restated Certificate of
Incorporation of the Company relating to the reclassification of the
Company’s common stock.
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3.4
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Bylaws
of the Company. (3)
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4.1
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Tax
Benefit Preservation Plan, dated as of August 10, 2009, between the
Company and American Stock Transfer & Trust Company, as Rights Agent.
(2)
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Previously
filed with the Securities and Exchange Commission on February 9, 2009 as
an exhibit to the Company's Form 10-Q for the quarter ended December 31,
2008 (File No. 000-51910).
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Previously
filed with the Securities and Exchange Commission on August 12, 2009 as an
exhibit to the Company’s Form 8-K (File No.
001-51910).
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(3)
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Previously
filed with the Securities and Exchange Commission on August 6, 2003 as an
exhibit to the Company’s Registration Statement on Form SB-2 (File No.
333-107711).
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