UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
13E-3
(Amendment
No. 3)
(RULE
13e-100)
RULE
13E-3 TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE
SECURITIES
EXCHANGE ACT OF 1934
THE ORCHARD ENTERPRISES, INC.
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(Name
of the Issuer)
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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
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(Name
of Person(s) Filing Statement)
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Common Stock, Par Value $0.01
Per Share
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(Title
of Class of Securities)
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25388X 20 5
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(CUSIP
Number of Class of Securities)
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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
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Joseph
D. Samberg
Director
Dimensional
Associates, LLC
1091
Boston Post Road
Rye,
NY 10580
Tel:
914.921.3030
Fax:
914.921.4305
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(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
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Sey-Hyo
Lee, Esq.
Chadbourne
& Parke LLP
30
Rockefeller Plaza
New
York, NY 10112
Tel:
212.408.5100
Fax:
212.541.5369
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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
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This
statement is filed in connection with (check the appropriate box):
x
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a.
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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
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¨
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b.
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The
filing of a registration statement under the Securities Act of
1933.
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¨
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c.
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A
tender offer.
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¨
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d.
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None
of the above.
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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)
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Amount
of Filing Fee
(2)
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$7,474,070
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$532.90
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(1)
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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.
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(2)
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In
accordance with Exchange Act Rule 0-11(c), the filing fee was determined
by multiplying 0.00007130 by the Total Consideration
.
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x
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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.
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Amount Previously Paid:
$532.90
Form or Registration No.: Schedule
14A –
Preliminary
Proxy Statement
Filing
Party: The Orchard Enterprises, Inc.
Date
Filed: April 27, 2010
This
Amendment No. 3 to Transaction Statement on Schedule 13E-3, together with
the exhibits hereto (this “Amendment”), 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”.
The
Transaction Statement o
n
Schedule 13E-3 filed on April 27, 2010, as amended on June 7, 2010 and June 18,
2010 (the “Transaction Statement”), as further amended by this Amendment,
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.
On
June 18, 2010, the Company filed 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.
Only
those items amended are reported in this Amendment. Except as
specifically provided herein, the information contained in the Transaction
Statement remains unchanged and this Amendment does not modify any of the
information previously reported on the Transaction
Statement. Capitalized terms used herein but not defined herein shall
have the meanings ascribed to them in the Proxy Statement.
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 Amendment 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 5. Past Contacts,
Transactions, Negotiations and Agreements
(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:
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•
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“SUMMARY
TERM SHEET — The Parties to the
Merger”
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•
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“SUMMARY
TERM SHEET — The Merger and Its
Effects”
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•
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“SUMMARY
TERM SHEET — Merger Consideration”
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•
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“SUMMARY
TERM SHEET — Interests of Certain Persons in the
Merger”
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•
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“QUESTIONS
AND ANSWERS ABOUT THE MERGER AND THE ANNUAL MEETING OF
STOCKHOLDERS”
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•
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“SPECIAL
FACTORS — Background of the Merger”
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•
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“SPECIAL
FACTORS — Fairness of the Merger, Recommendation of the Special Committee
and the Board of Directors”
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•
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“SPECIAL
FACTORS — Interests of Certain Persons in the
Merger”
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•
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“HISTORICAL
RELATIONSHIP BETWEEN DIMENSIONAL ASSOCIATES AND THE
ORCHARD”
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“TRANSACTIONS
WITH RELATED PERSONS”
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•
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“APPENDIX
A — AGREEMENT AND PLAN OF MERGER”
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•
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“APPENDIX
A-1 — AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF
MERGER”
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•
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“APPENDIX
A-2 — AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF
MERGER”
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•
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“Supplement
to Proxy Statement dated July 12,
2010”
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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:
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“QUESTIONS
AND ANSWERS ABOUT THE MERGER AND THE ANNUAL MEETING OF
STOCKHOLDERS”
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•
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“SPECIAL
FACTORS — Background of the Merger”
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•
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“SPECIAL
FACTORS — Fairness of the Merger, Recommendation of the Special Committee
and the Board of Directors”
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•
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“SPECIAL
FACTORS — Purpose and Reasons for the Merger for Dimensional Associates,
Merger Sub and Certain of Their
Affiliates”
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•
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“SPECIAL
FACTORS — Position of Dimensional Associates, Merger Sub and Certain of
Their Affiliates as to the Fairness of the
Merger”
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•
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“Supplement
to Proxy Statement dated July 12,
2010”
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Item 8.
Fairness of the Transaction
(f)
Other
Offers
. The information set forth in the Proxy Statement
under the following captions is incorporated herein by reference:
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•
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“SPECIAL
FACTORS — Background of the Merger”
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•
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“SPECIAL
FACTORS — Fairness of the Merger, Recommendation of the Special Committee
and the Board of Directors”
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•
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“Supplement
to Proxy Statement dated July 12,
2010”
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Item 15.
Additional Information
(b)
Other Material Information
.
The information set forth in the Proxy Statement, including all appendices
thereto, and the information set forth in the
Supplement
to Proxy Statement dated July 12, 2010
are incorporated
in their entirety herein by this reference.
Item 16.
Exhibits
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Exhibit
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(a)(i)
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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).
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(a)(ii)
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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).
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(a)(iii)
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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).
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(a)(iv)
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Form
of Proxy Card (incorporated herein by reference to the Schedule 14A filed
with the SEC by the Company on June 18, 2010).
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(a)(v)
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Supplement
to Proxy Statement dated July 12, 2010 (incorporated herein by reference
to the Schedule 14A filed with the SEC by the Company on July 12,
2010).
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(c)(i)
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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 ).
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(c)(ii)
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The
Orchard Enterprises, Inc. Fairness Opinion Addendum, dated March 15,
2010.*
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(c)(iii)
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November
12, 2009 Draft Presentation to the Special Committee of the Board of
Directors of The Orchard Enterprises, Inc.**
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(c)(iv)
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November
24, 2009 Draft Presentation to the Special Committee of the Board of
Directors of The Orchard Enterprises, Inc.**
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(c)(v)
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December
23, 2009 Draft Presentation to the Special Committee of the Board of
Directors of The Orchard Enterprises, Inc.**
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(c)(vi)
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Draft
Opinion of Fesnak and Associates, LLP, dated March 15,
2010.**
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(c)(vii)
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The Orchard
Enterprises, Inc. Draft Fairness Opinion Addendum, dated March 15,
2010.**
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(d)(i)
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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 ).
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(f)(i)
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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).
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* 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:
July 12, 2010
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THE
ORCHARD ENTERPRISES, INC.
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By:
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/s/
Nathan Fong
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Name:
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Nathan
Fong
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Title:
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Executive
Vice President and
Chief
Financial Officer
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Dated:
July 12, 2010
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DIMENSIONAL
ASSOCIATES, LLC
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By:
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JDS
Capital, L.P., its Manager
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By:
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JDS
Capital Management, LLC,
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By:
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/s/
Joseph D. Samberg
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Name:
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Joseph
D. Samberg
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Title:
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Managing
Member
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Dated:
July 12, 2010
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ORCHARD
MERGER SUB, INC.
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By:
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/s/
Daniel C. Stein
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Name:
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Daniel
C. Stein
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Title:
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President
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Dated:
July 12, 2010
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JDS
CAPITAL, L.P.
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By:
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JDS
Capital Management, LLC,
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By:
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/s/
Joseph D. Samberg
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Name:
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Joseph
D. Samberg
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Title:
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Managing
Member
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Dated:
July 12, 2010
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JDS
CAPITAL MANAGEMENT, LLC
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By:
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/s/
Joseph D. Samberg
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Name:
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Joseph
D. Samberg
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Title:
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Managing
Member
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Dated:
July 12, 2010
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JOSEPH
D. SAMBERG
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By:
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/s/
Joseph D. Samberg
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Dated:
July 12, 2010
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DANIEL
C. STEIN
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By:
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/s/
Daniel C. Stein
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