Unassociated Document
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of
Report (Date of earliest event reported): April 14, 2010
The
Orchard Enterprises, Inc.
(Exact
Name of Registrant as Specified in its Charter)
|
Delaware
|
000-51761
|
20-3365526
|
|
(State
or Other Jurisdiction of Incorporation)
|
(Commission
File
Number)
|
(I.R.S.
Employer Identification No.)
|
|
23
East 4th
Street
3rd
Floor
New
York, New York
|
10003
|
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
(Registrant's
telephone number, including area code): (212)
201-9280
N/A
(Former
name or former address if changed since last report.)
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of
the registrant under any of the following provisions (see General Instruction
A.2. below):
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
x Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
□ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
□ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01 Entry Into a Material Definitive Agreement.
The
Orchard Enterprises, Inc. (the “Company”) entered into Amendment No. 2, dated as
of April 14, 2010 (the “Amendment”), to Agreement and Plan of Merger dated as of
March 15, 2010 (the “Merger Agreement”) with Dimensional Associates, LLC
(“Dimensional”) and Orchard Merger Sub, Inc., a wholly owned subsidiary of
Dimensional (“Merger Sub”), pursuant to which Merger Sub will merge with and
into the Company, with the Company as the surviving corporation (the
“Merger”).
The
Amendment extends the “go-shop” period in the Merger Agreement by one week, to
37 days from 30 days. The Company now has the right to solicit and engage in
discussions and negotiations with respect to an Acquisition Proposal (as defined
in the Merger Agreement) through April 21, 2010. After April 21, 2010, the
Company is subject to a “no-shop” restriction on its ability to solicit
third-party proposals or provide information or engage in discussions with third
parties, subject to certain exceptions.
The
foregoing summary of the Amendment does not purport to be complete and is
subject to, and qualified in its entirety by, the full text of the Amendment
attached as Exhibit 2.1 hereto and incorporated herein by
reference.
The
Company intends to file with the U.S. Securities and Exchange Commission (the
“SEC”) a preliminary proxy statement in connection with the proposed Merger and
to mail a definitive proxy statement and other relevant documents to the
Company’s stockholders. Stockholders of the Company and other
interested persons are advised to read, when available, the Company’s
preliminary proxy statement, and amendments thereto, and definitive proxy
statement in connection with the Company’s solicitation of proxies for the
stockholders meeting to be held to approve the Merger and the Merger Agreement
because these proxy statements will contain important information about the
Company, Dimensional and the proposed Merger. The definitive proxy
statement will be mailed to stockholders as of a record date to be established
for voting on the Merger and the Merger Agreement. Stockholders will
also be able to obtain a copy of the preliminary and definitive proxy
statements, without charge, once available, at the SEC’s internet site at
http://www.sec.gov or by directing a request to: Attention: Secretary, The
Orchard Enterprises, Inc., 23 East 4th Street, 3rd Floor, New York, New York
10003.
The
Company and its directors and executive officers may be deemed participants in
the solicitation of proxies from the Company’s stockholders. A list
of the names of those directors and the executive officers and descriptions of
their interests in the Company is contained in the Company’s proxy statement
dated April 29, 2009, and the Company’s Form 8-K dated February 22, 2010,
which are filed with the SEC, and will also be contained in the Company’s proxy
statement when it becomes available. The Company’s stockholders may
obtain additional information about the interests of its directors and executive
officers in the Merger by reading the Company’s proxy statement when it becomes
available.
Item
9.01 Financial Statements and Exhibits.
|
Exhibit
Number
|
|
Description
|
|
2.1
|
|
Amendment
No. 2 to Agreement and Plan of Merger among The Orchard Enterprises, Inc.,
Dimensional Associates, LLC and Orchard Merger Sub, Inc., dated as of
April 14, 2010
|
Signature
Pursuant
to the requirements of the Securities and Exchange Act of 1934, as amended, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
| |
The Orchard Enterprises,
Inc. |
|
| |
|
|
|
|
Date:
April 15, 2010
|
By:
|
/s/
Bradley Navin |
|
| |
|
Name:
Bradley Navin |
|
| |
|
Title: Chief
Executive Officer |
|
Exhibit
Index
|
Exhibit
Number
|
|
Description
|
|
2.1
|
|
Amendment
No. 2 to Agreement and Plan of Merger among The Orchard Enterprises, Inc.,
Dimensional Associates, LLC and Orchard Merger Sub, Inc., dated as of
April 14, 2010
|