UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
13E-3
(Amendment
No. 2)
(RULE
13e-100)
RULE
13E-3 TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE
SECURITIES
EXCHANGE ACT OF 1934
|
THE ORCHARD ENTERPRISES, INC.
|
|
(Name
of the Issuer)
|
|
|
|
The
Orchard Enterprises, Inc.
Dimensional
Associates, LLC
Orchard
Merger Sub, Inc.
JDS
Capital, L.P.
JDS
Capital Management, LLC
Joseph
D. Samberg
Daniel
C. Stein
|
|
(Name
of Person(s) Filing Statement)
|
|
|
|
Common Stock, Par Value $0.01
Per Share
|
|
(Title
of Class of Securities)
|
|
|
|
25388X 20 5
|
|
(CUSIP
Number of Class of Securities)
|
|
Alexis
Shapiro, Esq.
Senior
Vice President, General Counsel and Secretary
The
Orchard Enterprises, Inc.
23
East 4th Street, Third Floor
New
York, NY 10003
Tel:
212.201.9280
Fax:
212.201.9203
|
|
|
Joseph
D. Samberg
Director
Dimensional
Associates, LLC
1091
Boston Post Road
Rye,
NY 10580
Tel:
914.921.3030
Fax:
914.921.4305
|
(Name,
Address and Telephone Numbers of Persons Authorized to Receive Notices and
Communications on Behalf of the Persons Filing Statement)
|
John
P. Schmitt, Esq.
Edward
H. Smoot, Esq.
Patterson
Belknap Webb & Tyler LLP
1133
Avenue of the Americas
New
York, NY 10036
Tel:
212.336.2000
Fax:
212.336.2222
|
|
Sey-Hyo
Lee, Esq.
Chadbourne
& Parke LLP
30
Rockefeller Plaza
New
York, NY 10112
Tel:
212.408.5100
Fax:
212.541.5369
|
|
Thomas
L. Hanley, Esq.
Sonnenschein
Nath & Rosenthal LLP
1301
K Street, N.W.
Suite
600, East Tower
Washington,
DC 20005-3364
Tel:
202.408.6400
Fax:
202.408.6399
|
This
statement is filed in connection with (check the appropriate box):
|
x
|
|
a.
|
|
The
filing of solicitation materials or an information statement subject to
Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities
Exchange Act of 1934
|
|
|
|
|
|
|
|
¨
|
|
b.
|
|
The
filing of a registration statement under the Securities Act of
1933.
|
|
|
|
|
|
|
|
¨
|
|
c.
|
|
A
tender offer.
|
|
|
|
|
|
|
|
¨
|
|
d.
|
|
None
of the above.
|
Check
the following box if the soliciting materials or information statement referred
to in checking box (a) are preliminary copies:
o
Check the
following box if this is a final amendment reporting the results of the
transaction:
¨
CALCULATION
OF FILING FEE
|
Transaction
Valuation
(1)
|
|
Amount
of Filing Fee
(2)
|
|
$7,474,070
|
|
$532.90
|
|
(1)
|
|
Calculated
solely for purposes of determining the filing fee, the transaction value
was determined based on the product of 3,645,888 shares of common stock
that may be exchanged for cash in the transaction multiplied by the $2.05
per share cash merger consideration (the “Total
Consideration”).
Each
outstanding and unexercised stock option and stock appreciation right has
an exercise price per share greater than $2.05 and, consequently, holders
thereof will not receive any cash merger consideration at the effective
time of the merger. Nonetheless, pre-merger option and stock appreciation
rights holders will receive a contingent right to their portion, if any,
of any additional consideration in the event of a resale transaction, as
described more fully herein. Because the amount of such additional
consideration, if any, is not determinable at this time, it has not been
included in the calculation of the maximum aggregate value of the
transaction.
The
number of shares of common stock includes 5,963 shares of common stock
that are issuable upon conversion of 1,789 shares of the Company’s Series
A convertible preferred stock held by non-affiliates of Dimensional
Associates, LLC.
|
|
|
|
|
|
(2)
|
|
In
accordance with Exchange Act Rule 0-11(c), the filing fee was determined
by multiplying 0.00007130 by the Total Consideration
.
|
|
|
|
|
|
x
|
|
Check
the box if any part of the fee is offset as provided by Rule 0-11(a)(2) of
the Exchange Act and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its
filing.
|
Amount Previously Paid:
$532.90
Form or Registration No.: Schedule
14A – Definitive Proxy Statement
Filing
Party: The Orchard Enterprises, Inc.
Date
Filed: June 18, 2010
This
Amendment No. 2 to Transaction Statement on Schedule 13E-3, together with
the exhibits hereto (the “Transaction Statement”), is being filed with the
Securities and Exchange Commission (“SEC”) by (a) The Orchard Enterprises, Inc.,
a Delaware corporation (the “Company”), the issuer of the common stock that is
subject to the Rule 13e-3 transaction, (b) Dimensional Associates, LLC, a New
York limited liability company (“Dimensional Associates”), (c) Orchard Merger
Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Dimensional
Associates (“Merger Sub”), (d) JDS Capital, L.P., a Delaware limited partnership
(“JDS Capital”), (e) JDS Capital Management, LLC, a Delaware limited liability
company (“JDS Capital Management”), (f) Joseph D. Samberg, an individual, and a
director and member of Dimensional Associates and managing member of JDS Capital
Management, and (g) Daniel C. Stein, an individual, and an executive and
director of Dimensional Associates and a member of the Company’s Board of
Directors (collectively, the “Filing Persons”). JDS Capital, JDS
Capital Management, Mr. Samberg and Mr. Stein are referred to herein
collectively as the “Dimensional Affiliates”.
This
Transaction Statement relates to the Agreement and Plan of Merger, dated as of
March 15, 2010, as amended (the “Merger Agreement”), by and among the Company,
Merger Sub and Dimensional Associates. The Merger Agreement provides that, upon
the terms and subject to the conditions set forth therein, Merger Sub will merge
with and into the Company, with the Company continuing as the surviving
corporation (the “Merger”). If the Merger is completed, the Company’s
common stockholders, other than Dimensional Associates and its affiliates and
stockholders that properly exercise and perfect their appraisal rights under
Delaware law, will have the right to receive, for each share of the Company’s
common stock they hold at the time of the Merger, $2.05 in cash and a contingent
right to receive additional consideration, under certain circumstances if
Dimensional Associates or the Company or any of their affiliates enters into a
commitment to sell at least 80% of the Company’s voting securities or assets
within six months of the consummation of the Merger.
Concurrently
with the filing of this Transaction Statement, the Company is filing with the
SEC a definitive Proxy Statement on Schedule 14A (the “Proxy Statement”) under
Regulation 14A of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), relating to the annual meeting of the stockholders of the Company at
which the stockholders of the Company will consider and vote upon a proposal to
approve the Merger and approve and adopt the Merger Agreement and the
transactions contemplated thereby. The approval of the Merger
will require the affirmative vote of: (i) the holders of a majority of all of
the Company’s outstanding shares of voting stock as of the record date for the
annual meeting, and (ii) the holders of a majority of all of the Company’s
outstanding shares of voting stock as of the record date for the annual meeting,
other than shares of voting stock held by Dimensional Associates and its
affiliates.
Pursuant
to General Instruction F to Schedule 13E-3, the information in the Proxy
Statement, including all annexes, exhibits and appendices thereto, is expressly
incorporated by reference herein in its entirety, and responses to each item
herein are qualified in their entirety by the information contained in the Proxy
Statement. The cross-references below are being supplied pursuant to General
Instruction G to Schedule 13E-3 and show the location in the Proxy Statement of
the information required to be included in response to the items of Schedule
13E-3. Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Proxy Statement. All information contained in this
Transaction Statement concerning any of the Filing Persons has been provided by
such Filing Person and such Filing Person takes responsibility for the accuracy
of such information.
Item 1.
Summary Term Sheet
The
information set forth in the Proxy Statement under the following captions is
incorporated herein by reference:
|
|
•
|
|
“QUESTIONS
AND ANSWERS ABOUT THE MERGER AND THE ANNUAL MEETING OF
STOCKHOLDERS”
|
Item 2.
Subject Company Information
(a)
Name and Address
. The
Company’s name and the address and telephone number of its principal executive
office are as follows: The Orchard Enterprises, Inc., 23 East 4th Street, 3rd
Floor, New York, New York 10003, (212) 201-9280.
(b)
Securities
. The information
set forth in the Proxy Statement under the following caption is incorporated
herein by reference:
|
|
•
|
|
“QUESTIONS
AND ANSWERS ABOUT THE MERGER AND THE ANNUAL MEETING OF STOCKHOLDERS — Who
is entitled to attend and vote at the annual
meeting?”
|
|
|
•
|
|
“THE
ANNUAL MEETING — Record Date; Shares Entitled to Vote;
Quorum”
|
|
|
•
|
|
“STOCK
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT”
|
(c)
Trading Market and
Price.
The Company’s common stock is currently listed
and traded on the Nasdaq Global Market. The information set forth in
the Proxy Statement under the following captions is incorporated herein by
reference:
|
|
•
|
|
“SUMMARY
TERM SHEET — Market Price of Our Common
Stock”
|
|
|
•
|
|
“IMPORTANT
INFORMATION REGARDING THE ORCHARD — Market Price of our Common Stock and
Dividend Information”
|
(d)
Dividends
. The information
set forth in the Proxy Statement under the following caption is incorporated
herein by reference:
|
|
•
|
|
“IMPORTANT
INFORMATION REGARDING THE ORCHARD — Market Price of our Common Stock and
Dividend Information”
|
(e)
Prior Public
Offerings
. None.
(f)
Prior Stock Purchases
. The
information set forth in the Proxy Statement under the following captions is
incorporated herein by reference:
|
|
•
|
|
“IMPORTANT
INFORMATION REGARDING THE ORCHARD — Transactions in Common
Stock”
|
|
|
•
|
|
“ELECTION
OF DIRECTORS — Director
Compensation”
|
Item 3.
Identity and Background of Filing Persons
(a)
– (c)
Name and
Address
;
Business and
Background of Entities
;
Business and Background of Natural Persons
. The
information set forth in the Proxy Statement under the following captions is
incorporated herein by reference:
|
|
•
|
|
“SUMMARY
TERM SHEET — The Parties to the
Merger”
|
|
|
•
|
|
“IMPORTANT
INFORMATION REGARDING THE ORCHARD — Description of
Business”
|
|
|
•
|
|
“IMPORTANT
INFORMATION REGARDING MERGER SUB”
|
|
|
•
|
|
“IMPORTANT
INFORMATION REGARDING DIMENSIONAL ASSOCIATES AND CERTAIN OF ITS
AFFILIATES”
|
|
|
•
|
|
“ELECTION
OF DIRECTORS — Nominees”
|
Item 4.
Terms of the Transaction
(a)
Material Terms
.
(1)
Tender Offers
. Not
applicable.
(2)
Mergers or Similar
Transactions
. The information set forth in the Proxy Statement under the
following captions is incorporated herein by reference:
|
|
•
|
|
“QUESTIONS
AND ANSWERS ABOUT THE MERGER AND THE ANNUAL MEETING OF
STOCKHOLDERS”
|
|
|
•
|
|
“THE
ANNUAL MEETING — Vote Required”
|
|
|
•
|
|
“APPROVAL
AND ADOPTION OF THE MERGER AGREEMENT — Vote
Required”
|
|
|
•
|
|
“APPENDIX
A — AGREEMENT AND PLAN OF MERGER”
|
|
|
•
|
|
“APPENDIX
A-1 — AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF
MERGER”
|
|
|
•
|
|
“APPENDIX
A-2 — AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF
MERGER”
|
(c)
Different Terms
. The
information set forth in the Proxy Statement under the following captions is
incorporated herein by reference:
|
|
•
|
|
“SUMMARY
TERM SHEET — The Parties to the
Merger”
|
|
|
•
|
|
“SUMMARY
TERM SHEET — The Merger and Its
Effects”
|
|
|
•
|
|
“SUMMARY
TERM SHEET — Merger Consideration”
|
|
|
•
|
|
“SUMMARY
TERM SHEET — Treatment of Options, Restricted Stock, Stock Appreciation
Rights and Warrants”
|
|
|
•
|
|
“SPECIAL
FACTORS — Background of the Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Interests of Certain Persons in the
Merger”
|
|
|
•
|
|
“IMPORTANT
INFORMATION ABOUT THE ORCHARD”
|
|
|
•
|
|
“HISTORICAL
RELATIONSHIP BETWEEN DIMENSIONAL ASSOCIATES AND THE
ORCHARD”
|
|
|
•
|
|
“APPENDIX
A — AGREEMENT AND PLAN OF MERGER”
|
|
|
•
|
|
“APPENDIX
A-1 — AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF
MERGER”
|
|
|
•
|
|
“APPENDIX
A-2 — AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF
MERGER”
|
(d)
Appraisal Rights
. The
information set forth in the Proxy Statement under the following captions is
incorporated herein by reference:
|
|
•
|
|
“SUMMARY
TERM SHEET — Rights of Appraisal”
|
|
|
•
|
|
“SPECIAL
FACTORS — Fairness of the Merger, Recommendation of the Special Committee
and the Board of Directors — Availability of Appraisal
Rights”
|
|
|
•
|
|
“THE
ANNUAL MEETING — Rights of Stockholders Who Object to the
Merger”
|
|
|
•
|
|
“THE
MERGER AGREEMENT — Appraisal
Rights”
|
|
|
•
|
|
“APPENDIX
D — SECTION 262 OF THE GENERAL CORPORATION LAW OF THE STATE OF
DELAWARE”
|
(e)
Provisions for Unaffiliated
Security Holders
. The information set forth in the Proxy Statement under
the following caption is incorporated herein by reference:
|
|
•
|
|
“SPECIAL
FACTORS — Provisions for Non-Continuing
Stockholders”
|
(f)
Eligibility for Listing or
Trading
. Not applicable.
Item 5. Past Contacts,
Transactions, Negotiations and Agreements
(a)
Transactions
. The
information set forth in the Proxy Statement under the following captions is
incorporated herein by reference:
|
|
•
|
|
“SUMMARY
TERM SHEET — Interests of Certain Persons in the
Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Background of the Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Interests of Certain Persons in the
Merger”
|
|
|
•
|
|
“HISTORICAL
RELATIONSHIP BETWEEN DIMENSIONAL ASSOCIATES AND THE
ORCHARD”
|
|
|
•
|
|
“TRANSACTIONS
WITH RELATED PERSONS”
|
(b) –
(c)
Significant Corporate
Events; Negotiations or Contacts
. The information set forth in the Proxy
Statement under the following captions is incorporated herein by
reference:
|
|
•
|
|
“SUMMARY
TERM SHEET — The Parties to the
Merger”
|
|
|
•
|
|
“SUMMARY
TERM SHEET — The Merger and Its
Effects”
|
|
|
•
|
|
“SUMMARY
TERM SHEET — Merger Consideration”
|
|
|
•
|
|
“SUMMARY
TERM SHEET — Interests of Certain Persons in the
Merger”
|
|
|
•
|
|
“QUESTIONS
AND ANSWERS ABOUT THE MERGER AND THE ANNUAL MEETING OF
STOCKHOLDERS”
|
|
|
•
|
|
“SPECIAL
FACTORS — Background of the Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Fairness of the Merger, Recommendation of the Special Committee
and the Board of Directors”
|
|
|
•
|
|
“SPECIAL
FACTORS — Interests of Certain Persons in the
Merger”
|
|
|
•
|
|
“HISTORICAL
RELATIONSHIP BETWEEN DIMENSIONAL ASSOCIATES AND THE
ORCHARD”
|
|
|
•
|
|
“TRANSACTIONS
WITH RELATED PERSONS”
|
|
|
•
|
|
“APPENDIX
A — AGREEMENT AND PLAN OF MERGER”
|
|
|
•
|
|
“APPENDIX
A-1 — AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF
MERGER”
|
|
|
•
|
|
“APPENDIX
A-2 — AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF
MERGER”
|
(e)
Agreements Involving the Subject
Company’s Securities
. The information set forth in the Proxy Statement
under the following captions is incorporated herein by reference:
|
|
•
|
|
“QUESTIONS
AND ANSWERS ABOUT THE MERGER AND THE ANNUAL MEETING OF
STOCKHOLDERS”
|
|
|
•
|
|
“SPECIAL
FACTORS — Background of the Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Fairness of the Merger, Recommendation of the Special Committee
and the Board of Directors”
|
|
|
•
|
|
“SPECIAL
FACTORS — Interests of Certain Persons in the
Merger”
|
|
|
•
|
|
“HISTORICAL
RELATIONSHIP BETWEEN DIMENSIONAL ASSOCIATES AND THE
ORCHARD”
|
|
|
•
|
|
“TRANSACTIONS
WITH RELATED PERSONS”
|
|
|
•
|
|
“WHERE
YOU CAN FIND MORE INFORMATION”
|
|
|
•
|
|
“APPENDIX
A — AGREEMENT AND PLAN OF MERGER”
|
|
|
•
|
|
“APPENDIX
A-1 — AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF
MERGER”
|
|
|
•
|
|
“APPENDIX
A-2 — AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF
MERGER”
|
Item 6.
Purposes of the Transaction and Plans or Proposals
(b) –
(c)
Use of Securities
Acquired
;
Plans
.
The information set forth in the Proxy Statement under the following captions is
incorporated herein by reference:
|
|
•
|
|
“QUESTIONS
AND ANSWERS ABOUT THE MERGER AND THE ANNUAL MEETING OF
STOCKHOLDERS”
|
|
|
•
|
|
“SPECIAL
FACTORS — Background of the Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Fairness of the Merger, Recommendation of the Special Committee
and the Board of Directors”
|
|
|
•
|
|
“SPECIAL
FACTORS — Purpose and Reasons for the Merger for Dimensional Associates,
Merger Sub and Certain of Their
Affiliates”
|
|
|
•
|
|
“SPECIAL
FACTORS — Plans for The Orchard after the
Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Interests of Certain Persons in the
Merger”
|
|
|
•
|
|
“APPROVAL
AND ADOPTION OF THE MERGER
AGREEMENT”
|
|
|
•
|
|
“APPENDIX
A — AGREEMENT AND PLAN OF MERGER”
|
|
|
•
|
|
“APPENDIX
A-1 — AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF
MERGER”
|
|
|
•
|
|
“APPENDIX
A-2 — AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF
MERGER”
|
Item 7.
Purposes, Alternatives, Reasons and Effects
(a) –
(c)
Purposes
;
Alternatives
;
Reasons
. The information set
forth in the Proxy Statement under the following captions is incorporated herein
by reference:
|
|
•
|
|
“QUESTIONS
AND ANSWERS ABOUT THE MERGER AND THE ANNUAL MEETING OF
STOCKHOLDERS”
|
|
|
•
|
|
“SPECIAL
FACTORS — Background of the Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Fairness of the Merger, Recommendation of the Special Committee
and the Board of Directors”
|
|
|
•
|
|
“SPECIAL
FACTORS — Purpose and Reasons for the Merger for Dimensional Associates,
Merger Sub and Certain of Their
Affiliates”
|
|
|
•
|
|
“SPECIAL
FACTORS — Position of Dimensional Associates, Merger Sub and Certain of
Their Affiliates as to the Fairness of the
Merger”
|
(d)
Effects
. The information set
forth in the Proxy Statement under the following captions is incorporated herein
by reference:
|
|
•
|
|
“QUESTIONS
AND ANSWERS ABOUT THE MERGER AND THE ANNUAL MEETING OF
STOCKHOLDERS”
|
|
|
•
|
|
“SPECIAL
FACTORS — Background of the Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Fairness of the Merger, Recommendation of the Special Committee
and the Board of Directors”
|
|
|
•
|
|
“SPECIAL
FACTORS — Plans for The Orchard after the
Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Certain Financial
Projections”
|
|
|
•
|
|
“SPECIAL
FACTORS — Material United States Federal Income Tax Consequences of the
Merger”
|
|
|
•
|
|
“APPENDIX
A — AGREEMENT AND PLAN OF MERGER”
|
|
|
•
|
|
“APPENDIX
A-1 — AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF
MERGER”
|
|
|
•
|
|
“APPENDIX
A-2 — AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF
MERGER”
|
Item 8.
Fairness of the Transaction
(a) –
(b)
Fairness
;
Factors Considered in Determining
Fairness
. The information set forth in the Proxy Statement under the
following captions is incorporated herein by reference:
|
|
•
|
|
“QUESTIONS
AND ANSWERS ABOUT THE MERGER AND THE ANNUAL MEETING OF
STOCKHOLDERS”
|
|
|
•
|
|
“SPECIAL
FACTORS — Background of the Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Fairness of the Merger, Recommendation of the Special Committee
and the Board of Directors”
|
|
|
•
|
|
“SPECIAL
FACTORS — Opinion of the Special Committee's Financial
Advisor”
|
|
|
•
|
|
“SPECIAL
FACTORS — Position of Dimensional Associates, Merger Sub and Certain of
Their Affiliates as to the Fairness of the
Merger”
|
|
|
•
|
|
“APPROVAL
AND ADOPTION OF THE MERGER AGREEMENT — Recommendation of the
Board”
|
|
|
•
|
|
“APPENDIX
C — OPINION OF FESNAK AND
ASSOCIATES”
|
(c)
Approval of Security
Holders
. The information set forth in the Proxy
Statement under the following captions is incorporated herein by
reference:
|
|
•
|
|
“SUMMARY
TERM SHEET — Required Vote for Merger
Proposal”
|
|
|
•
|
|
“SUMMARY
TERM SHEET — Conditions to the Completion of the
Merger”
|
|
|
•
|
|
“QUESTIONS
AND ANSWERS ABOUT THE MERGER AND THE ANNUAL MEETING OF
STOCKHOLDERS”
|
|
|
•
|
|
“SPECIAL
FACTORS — Background of the Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Fairness of the Merger, Recommendation of the Special Committee
and the Board of Directors”
|
|
|
•
|
|
“SPECIAL
FACTORS — Position of Dimensional Associates, Merger Sub and Certain of
Their Affiliates as to the Fairness of the
Merger”
|
|
|
•
|
|
“THE
ANNUAL MEETING — Record Date; Shares Entitled to Vote;
Quorum”
|
|
|
•
|
|
“THE
ANNUAL MEETING — Vote
Required”
|
|
|
•
|
|
“APPROVAL
AND ADOPTION OF THE MERGER AGREEMENT — Vote
Required”
|
|
|
•
|
|
“THE
MERGER AGREEMENT — Conditions to Completion of the
Merger”
|
|
|
•
|
|
“APPENDIX
A — AGREEMENT AND PLAN OF MERGER”
|
|
|
•
|
|
“APPENDIX
A-1 — AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF
MERGER”
|
|
|
•
|
|
“APPENDIX
A-2 — AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF
MERGER”
|
(d) –
(e)
Unaffiliated
Representative
;
Approval of Directors
. The information set forth in the Proxy Statement
under the following captions is incorporated herein by reference:
|
|
•
|
|
“SUMMARY
TERM SHEET — Interests of Certain Persons in the
Merger”
|
|
|
•
|
|
“SUMMARY
TERM SHEET— Recommendation of the Special Committee and the Board of
Directors”
|
|
|
•
|
|
“SUMMARY
TERM SHEET — Opinion of Fesnak and Associates,
LLP”
|
|
|
•
|
|
“SPECIAL
FACTORS — Background of the Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Fairness of the Merger, Recommendation of the Special Committee
and the Board of Directors”
|
|
|
•
|
|
“SPECIAL
FACTORS — Opinion of the Special Committee's Financial
Advisor”
|
|
|
•
|
|
“SPECIAL
FACTORS — Purpose and Reasons for the Merger for Dimensional Associates,
Merger Sub and Certain of Their
Affiliates”
|
|
|
•
|
|
“SPECIAL
FACTORS — Position of Dimensional Associates, Merger Sub and Certain of
Their Affiliates as to the Fairness of the
Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Interests of Certain Persons in the
Merger”
|
|
|
•
|
|
“THE
ANNUAL MEETING — Purpose of the Annual
Meeting”
|
|
|
•
|
|
“APPROVAL
AND ADOPTION OF THE MERGER
AGREEMENT”
|
|
|
•
|
|
“APPENDIX
C — OPINION OF FESNAK AND
ASSOCIATES”
|
(f)
Other
Offers
. The information set forth in the Proxy Statement
under the following captions is incorporated herein by reference:
|
|
•
|
|
“SPECIAL
FACTORS — Background of the Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Fairness of the Merger, Recommendation of the Special Committee
and the Board of Directors”
|
Item 9.
Reports, Opinions, Appraisals and Negotiations
(a) –
(b)
Report, Opinion or
Appraisal
;
Preparer and
Summary of the Report, Opinion, or Appraisal
. The information set forth
in the Proxy Statement under the following captions is incorporated herein by
reference:
|
|
•
|
|
“SUMMARY
TERM SHEET — Opinion of Fesnak and Associates,
LLP”
|
|
|
•
|
|
“SPECIAL
FACTORS — Background of the Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Fairness of the Merger, Recommendation of the Special Committee
and the Board of Directors”
|
|
|
•
|
|
“SPECIAL
FACTORS — Opinion of the Special Committee's Financial
Advisor”
|
|
|
•
|
|
“SPECIAL
FACTORS — Position of Dimensional Associates, Merger Sub and Certain of
Their Affiliates as to the Fairness of the
Merger”
|
|
|
•
|
|
“APPENDIX
C — OPINION OF FESNAK AND
ASSOCIATES”
|
(c)
Availability of Documents
.
The reports, opinions or appraisals referenced in this Item 9 will be made
available for inspection and copying at the principal executive offices of the
Company during its regular business hours by any interested holder of the
Company’s common stock, and copies may be obtained by requesting them in writing
or by telephone from the Company at the address provided under the caption
“WHERE YOU CAN FIND MORE INFORMATION” in the Proxy Statement, which is
incorporated herein by reference.
Item 10.
Source and Amounts of Funds or Other Consideration
(a) –
(b)
Sources of Funds;
Conditions
. The merger consideration to be paid by
Dimensional Associates will be all cash, and Dimensional Associates will not
require financing to complete the transaction. There are no material
conditions to the financing discussed in response to paragraph (a) of this
section, nor are there any alternative financing arrangements or alternative
financing plans in the event the primary financing plans fall
through. The information set forth in the Proxy Statement under the
following captions is incorporated herein by reference:
|
|
•
|
|
“SUMMARY
TERM SHEET — Merger Consideration”
|
|
|
•
|
|
“SUMMARY
TERM SHEET — Treatment of Options, Restricted Stock, Stock Appreciation
Rights and Warrants”
|
|
|
•
|
|
“QUESTIONS
AND ANSWERS ABOUT THE MERGER AND THE ANNUAL MEETING OF
STOCKHOLDERS”
|
|
|
•
|
|
“SPECIAL
FACTORS — Fairness of the Merger, Recommendation of the Special Committee
and the Board of Directors”
|
|
|
•
|
|
“SPECIAL
FACTORS — Financing of the Merger”
|
|
|
•
|
|
“APPENDIX
A — AGREEMENT AND PLAN OF MERGER”
|
|
|
•
|
|
“APPENDIX
A-1 — AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF
MERGER”
|
|
|
•
|
|
“APPENDIX
A-2 — AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF
MERGER”
|
(c)
Expenses
. The information
set forth in the Proxy Statement under the following caption is incorporated
herein by reference:
|
|
•
|
|
“SUMMARY
TERM SHEET — Expense Reimbursement”
|
|
|
•
|
|
“SPECIAL
FACTORS — Financing of the Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Fees and Expenses of the
Merger”
|
|
|
•
|
|
“APPENDIX
A — AGREEMENT AND PLAN OF MERGER”
|
|
|
•
|
|
“APPENDIX
A-1 — AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF
MERGER”
|
|
|
•
|
|
“APPENDIX
A-2 — AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF
MERGER”
|
(d)
Borrowed
Funds
. Not applicable.
Item 11. Interest in Securities
of the Subject Company
(a) –
(b)
Securities Ownership;
Securities Transactions
. The information set forth in the Proxy Statement
under the following captions is incorporated herein by reference:
|
|
•
|
|
“SUMMARY
TERM SHEET — Interests of Certain Persons in the
Merger”
|
|
|
•
|
|
“SUMMARY
TERM SHEET — Share Ownership of Directors and Executive
Officers”
|
|
|
•
|
|
“IMPORTANT
INFORMATION REGARDING THE ORCHARD — Transactions in Common
Stock”
|
|
|
•
|
|
“IMPORTANT
INFORMATION REGARDING MERGER SUB”
|
|
|
•
|
|
“IMPORTANT
INFORMATION REGARDING DIMENSIONAL ASSOCIATES AND CERTAIN OF ITS
AFFILIATES”
|
|
|
•
|
|
“STOCK
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT”
|
Item 12.
The Solicitation or Recommendation
(d) –
(e)
Intent to Tender or
Vote in a Going-Private Transaction
;
Recommendations of Others
.
The information set forth in the Proxy Statement under the following captions is
incorporated herein by reference:
|
|
•
|
|
“SUMMARY
TERM SHEET — Interests of Certain Persons in the
Merger”
|
|
|
•
|
|
“SUMMARY
TERM SHEET— Recommendation of the Special Committee and the Board of
Directors”
|
|
|
•
|
|
“SUMMARY
TERM SHEET — Opinion of Fesnak and Associates,
LLP”
|
|
|
•
|
|
“SPECIAL
FACTORS — Background of the Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Fairness of the Merger, Recommendation of the Special Committee
and the Board of Directors”
|
|
|
•
|
|
“SPECIAL
FACTORS — Opinion of the Special Committee's Financial
Advisor”
|
|
|
•
|
|
“SPECIAL
FACTORS — Purpose and Reasons for the Merger for Dimensional Associates,
Merger Sub and Certain of Their
Affiliates”
|
|
|
•
|
|
“SPECIAL
FACTORS — Position of Dimensional Associates, Merger Sub and Certain of
Their Affiliates as to the Fairness of the
Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Interests of Certain Persons in the
Merger”
|
|
|
•
|
|
“THE
ANNUAL MEETING — Purpose of the Annual
Meeting”
|
|
|
•
|
|
“THE
ANNUAL MEETING — Vote Required”
|
|
|
•
|
|
“APPROVAL
AND ADOPTION OF THE MERGER
AGREEMENT”
|
|
|
•
|
|
“APPENDIX
C — OPINION OF FESNAK AND
ASSOCIATES”
|
Item 13.
Financial Statements
(a) –
(b)
Financial
Information; Pro Forma Information.
The audited consolidated
financial statements set forth in the Company’s Annual Report on Form 10-K for
the year ended December 31, 2009
, as
amended, the unaudited condensed consolidated financial statements set forth in
the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31,
2010
and the information set forth in the Proxy Statement under the
following captions is incorporated herein by reference:
|
|
•
|
|
“IMPORTANT
INFORMATION REGARDING THE ORCHARD — Summarized Financial
Information”
|
|
|
•
|
|
“IMPORTANT
INFORMATION REGARDING THE ORCHARD — Book Value Per
Share”
|
|
|
•
|
|
“WHERE
YOU CAN FIND MORE INFORMATION”
|
Item 14.
Persons/Assets, Retained, Employed, Compensated or Used
(a) –
(b)
Solicitations or
Recommendations
;
Employees and Corporate Assets
. The information set forth in the Proxy
Statement under the following captions is incorporated herein by
reference:
|
|
•
|
|
“QUESTIONS
AND ANSWERS ABOUT THE MERGER AND THE ANNUAL MEETING OF
STOCKHOLDERS”
|
|
|
•
|
|
“SPECIAL
FACTORS — Background of the Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Fairness of the Merger, Recommendation of the Special Committee
and the Board of Directors”
|
|
|
•
|
|
“SPECIAL
FACTORS — Interests of Certain Persons in the
Merger”
|
|
|
•
|
|
“SPECIAL
FACTORS — Fees and Expenses of the
Merger”
|
|
|
•
|
|
“THE
ANNUAL MEETING — Solicitation of
Proxies”
|
Item 15.
Additional Information
(b)
Other Material Information
.
The information set forth in the Proxy Statement, including all appendices
thereto, is incorporated in its entirety herein by this reference.
Item 16.
Exhibits
|
|
|
|
|
Exhibit
|
|
|
|
(a)(i)
|
|
Letter
to Stockholders of The Orchard Enterprises, Inc. (incorporated herein by
reference to the Schedule 14A filed with the SEC by the Company on June
18, 2010).
|
|
|
|
|
(a)(ii)
|
|
Notice
of Annual Meeting of Stockholders of The Orchard Enterprises, Inc.
(incorporated herein by reference to the Schedule 14A filed with the SEC
by the Company on June 18, 2010).
|
|
|
|
|
(a)(iii)
|
|
Definitive
Proxy Statement of The Orchard Enterprises, Inc. (incorporated herein by
reference to the Schedule 14A filed with the SEC by the Company on June
18, 2010).
|
|
|
|
|
(a)(iv)
|
|
Form
of Proxy Card (incorporated herein by reference to the Schedule 14A filed
with the SEC by the Company on June 18, 2010).
|
|
|
|
|
(c)(i)
|
|
Opinion
of Fesnak and Associates, LLP, dated March 15, 2010 (incorporated herein
by reference to Appendix C to the Schedule 14A filed with the SEC by the
Company on June 18, 2010 ).
|
|
|
|
|
(c)(ii)
|
|
The
Orchard Enterprises, Inc. Fairness Opinion Addendum, dated March 15,
2010.*
|
|
|
|
|
(c)(iii)
|
|
November
12, 2009 Draft Presentation to the Special Committee of the Board of
Directors of The Orchard Enterprises, Inc.**
|
|
|
|
|
|
(c)(iv)
|
|
November
24, 2009 Draft Presentation to the Special Committee of the Board of
Directors of The Orchard Enterprises, Inc.**
|
|
|
|
|
|
(c)(v)
|
|
December
23, 2009 Draft Presentation to the Special Committee of the Board of
Directors of The Orchard Enterprises, Inc.**
|
|
|
|
|
|
(c)(vi)
|
|
Draft
Opinion of Fesnak and Associates, LLP, dated March 15,
2010.**
|
|
|
|
|
|
(c)(vii)
|
|
The Orchard
Enterprises, Inc. Draft Fairness Opinion Addendum, dated March 15,
2010.**
|
|
|
|
|
|
(d)(i)
|
|
Agreement
and Plan of Merger, dated as of March 15, 2010, as amended March 16, 2010
and April 14, 2010, among The Orchard Enterprises, Inc., Dimensional
Associates, LLC and Orchard Merger Sub, Inc. (incorporated herein by
reference to Appendices A, A-1 and A-2 to the Schedule 14A filed with the
SEC by the Company on June 18, 2010 ).
|
|
|
|
|
(f)(i)
|
|
Section
262 of the General Corporation Law of the State of Delaware (incorporated
herein by reference to Appendix D to the Schedule 14A filed with the SEC
by the Company on June 18,
2010).
|
* Previously filed on April 27, 2010.
** Previously filed on June 7, 2010.
SIGNATURES
After due
inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and
correct.
Dated:
June 18, 2010
|
|
|
|
|
|
|
|
THE
ORCHARD ENTERPRISES, INC.
|
|
|
|
|
|
|
|
By:
|
|
/s/
Nathan Fong
|
|
|
|
Name:
|
|
Nathan
Fong
|
|
|
|
Title:
|
|
Executive
Vice President and
Chief
Financial Officer
|
Dated:
June 18, 2010
|
|
|
|
|
|
|
|
DIMENSIONAL
ASSOCIATES, LLC
|
|
|
|
|
|
|
|
By:
|
|
JDS
Capital, L.P., its Manager
|
|
|
|
|
|
|
|
By:
|
|
JDS
Capital Management, LLC,
|
|
|
|
|
|
|
|
By:
|
|
/s/
Joseph D. Samberg
|
|
|
|
Name:
|
|
Joseph
D. Samberg
|
|
|
|
Title:
|
|
Managing
Member
|
Dated:
June 18, 2010
|
|
|
|
|
|
|
|
ORCHARD
MERGER SUB, INC.
|
|
|
|
|
|
|
|
By:
|
|
/s/
Daniel C. Stein
|
|
|
|
Name:
|
|
Daniel
C. Stein
|
|
|
|
Title:
|
|
President
|
Dated:
June 18, 2010
|
|
|
|
|
|
|
|
JDS
CAPITAL, L.P.
|
|
|
|
|
|
|
|
By:
|
|
JDS
Capital Management, LLC,
|
|
|
|
|
|
|
|
By:
|
|
/s/
Joseph D. Samberg
|
|
|
|
Name:
|
|
Joseph
D. Samberg
|
|
|
|
Title:
|
|
Managing
Member
|
Dated:
June 18, 2010
|
|
|
|
|
|
|
|
JDS
CAPITAL MANAGEMENT, LLC
|
|
|
|
|
|
|
|
By:
|
|
/s/
Joseph D. Samberg
|
|
|
|
Name:
|
|
Joseph
D. Samberg
|
|
|
|
Title:
|
|
Managing
Member
|
Dated:
June 18, 2010
|
|
|
|
|
|
|
|
JOSEPH
D. SAMBERG
|
|
|
|
|
|
|
|
By:
|
|
/s/
Joseph D. Samberg
|
|
|
|
|
|
|
Dated:
June 18, 2010
|
|
|
|
|
|
|
|
DANIEL
C. STEIN
|
|
|
|
|
|
|
|
By:
|
|
/s/
Daniel C. Stein
|
|
|
|
|
|
|
Orchard Enterprise (MM) (NASDAQ:ORCD)
Historical Stock Chart
From Oct 2024 to Nov 2024
Orchard Enterprise (MM) (NASDAQ:ORCD)
Historical Stock Chart
From Nov 2023 to Nov 2024
