Attached files
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EX-3.1 - Orchard Enterprises, Inc. | v192021_ex3-1.htm |
EX-3.2 - Orchard Enterprises, Inc. | v192021_ex3-2.htm |
EX-99.1 - Orchard Enterprises, Inc. | v192021_ex99-1.htm |
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): July 29, 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):
¨ Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ 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))
Introductory
Note
On July
29, 2010, pursuant to the terms of the Agreement and Plan of Merger dated as of
March 15, 2010, as amended (the “Merger Agreement”), among The Orchard
Enterprises, Inc., a Delaware corporation (the “Company”), Dimensional
Associates, LLC, a New York limited liability company (“Dimensional”), and
Orchard Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary
of Dimensional (“Merger Sub”), Merger Sub merged with and into the Company, with
the Company continuing as the surviving corporation and a majority-owned
subsidiary of Dimensional (the “Merger”).
In
connection with the closing of the transaction, Dimensional consented to the
non-application of provisions of the Company’s Certificate of Designations of
the Series A Convertible Preferred Stock described under Item 3.03 below and
waived the closing condition that fewer than 4% of the holders of shares of the
Company’s common stock, par value $0.01 per share (the “Common Stock”),
outstanding as of the record date for the stockholders meeting to adopt the
Merger Agreement and approve the Merger exercise their dissenter’s rights under
the General Corporation Law of Delaware (the “DGCL”).
At the
effective time of the merger (the “Effective Time”), each outstanding share of
Common Stock, other than shares held by Dimensional, its affiliates and
stockholders who properly exercised and perfected their appraisal rights under
the DGCL (such stockholders, the “Dissenting Stockholders”), was automatically
converted into the right to receive (a) $2.05 in cash and (b) a contingent right
to receive additional cash consideration, under certain circumstances if
Dimensional 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 (collectively, the “Merger
Consideration”).
Item
3.01
|
Notice
of Delisting or Failure to Satisfy a Continued Listing Rule or Standard;
Transfer of Listing.
|
On July
29, 2010, the Company notified The Nasdaq Stock Market, LLC (“Nasdaq”) of the
effectiveness of the Merger. In connection therewith, the Company
informed Nasdaq that each outstanding share of the Company’s Common Stock, other
than shares held by Dimensional, its affiliates and the Dissenting Stockholders,
was automatically converted into the right to receive the Merger Consideration,
and requested that Nasdaq suspend trading of the Common Stock effective as of
the opening of trading on July 30, 2010 and file with the Securities and
Exchange Commission an application on Form 25 to report that shares of the
Company’s Common Stock are no longer listed on Nasdaq. As a result,
the last day of trading of the Company’s Common Stock was July 29,
2010.
Item
3.03
|
Material
Modification to Rights of Security
Holders.
|
In
connection with the consummation of the Merger, each share of the Company’s
Common Stock issued and outstanding immediately prior to the Effective Time
(other than shares held by Dimensional Associates, its affiliates and the
Dissenting Stockholders) was converted into the right to receive the Merger
Consideration. Upon the Effective Time, the Company’s stockholders
immediately prior to the Effective Time ceased to have any rights as
stockholders in the Company (other than their right to receive the Merger
Consideration).
The
Certificate of Designations of the Company’s Series A Convertible Preferred
Stock, par value $0.01 per share (the “Series A Stock”), was amended to provide
that the holders of a majority of the then outstanding shares of Series A Stock
may consent to the non-application of certain provisions of the Certificate of
Designations requiring the allocation of the consideration for any transaction
constituting a “Change of Control Event” (as defined in the Certificate of
Designations) among the holders of the Series A Stock and the Common
Stock.
The
description of the amendment to the Certificate of Designations of the Series A
Stock is qualified in its entirety by the copy thereof which is filed as Exhibit
3.2 to this Current Report on Form 8-K and is incorporated herein by
reference.
Item
5.02
|
Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers.
|
As a
result of the Merger and pursuant to the terms of the Merger Agreement, the
directors of Merger Sub, Daniel C. Stein and Joseph D. Samberg, became the sole
directors of the Company as of the Effective Time. David Altschul,
Viet Dinh, Michael Donahue, Bradley Navin, Nathan Peck and Joel Straka ceased to
be directors of the Company as of the Effective Time.
Item
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
|
Pursuant
to the terms of the Merger Agreement, from and after the Effective Time the
Certificate of Incorporation of the Company, as amended (the “Old Charter”), was
amended and restated in its entirety as the Second Amended and Restated
Certificate of Incorporation (the “New Charter”).
The New
Charter does not contain the super-majority voting provision that was contained
in Article X of the Old Charter and that required the affirmative vote of
66-2/3% of the then outstanding voting securities of the Company, voting
together as a single class, to amend, repeal or modify the provisions of Article
VII (Limitation of Liability; Indemnification; Amendments), Article VIII (Number
of Directors; Election of Directors) and Article X of the Old Charter and
Sections 2.3 (Special Meeting), 2.4 (Advance Notice Procedures; Notice of
Stockholders’ Meetings) and 2.9 (Voting) of the Company’s Bylaws.
The New
Charter added a provision that transactions between the Company and one or more
of its directors, or between the Company and any other corporation, partnership,
association or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, are not void
or voidable solely for that reason, or solely because such directors or officers
are present at, participate or vote at (with such votes being counted) in the
meeting of the board of directors of the Company or the committee thereof which
authorizes the contract or transaction so long as: (i) the material facts
regarding the transaction are known to the board of directors or the committee
and the disinterested directors approve the transaction; (ii) the material facts
regarding the transaction are known to the board of directors or the committee
and the Company’s stockholders approve the transaction; or (iii) the transaction
is fair as to the Company as of the time it is authorized, approved or ratified,
by the board of directors, a committee thereof, or the
stockholders.
The New
Charter also added a provision that whenever a compromise or arrangement is
agreed between the Company and its creditors and/or its stockholders, such
compromise or arrangement will be binding, if properly sanctioned by a court, on
the Company and on all the creditors and/or stockholders, as applicable, of the
Company if the compromise or arrangement is approved by a majority in number
representing three-fourths in value of the creditors and/or of the stockholders,
as applicable.
The
description of the New Charter is qualified in its entirety by the copy thereof
which is attached as Exhibit 3.1 to this Current Report.
Item
5.07
|
Submission
of Matters to a Vote of Security
Holders.
|
At the
2010 Annual Meeting of Stockholders of the Company held July 29, 2010 the
following proposals were voted on and approved:
(1) To
approve and adopt the Merger Agreement to approve the Merger.
Vote of
the holders of the Common Stock and the holders of the Series A Stock voting
together as a single class.
For
|
Against
|
Abstain
|
Broker Non-Votes
|
|||
6,360,746
|
|
797,880
|
|
1,317
|
|
348,638
|
Vote of
the holders of the Common Stock and the holders of the Series A Stock, in each
case, other than Dimensional and its affiliates, voting together as a single
class.
For
|
Against
|
Abstain
|
Broker Non-Votes
|
|||
2,132,693
|
|
797,880
|
|
1,317
|
|
348,638
|
(2) To
approve an amendment to the Certificate of Designations of the Series A
Stock.
Vote of
the holders of the Common Stock and the holders of the Series A Stock voting
together as a single class.
For
|
Against
|
Abstain
|
Broker Non-Votes
|
|||
6,270,421
|
|
854,147
|
|
35,375
|
|
348,638
|
Vote of
the holders of the Series A Stock voting separately as a class.
For
|
Against
|
Abstain
|
Broker Non-Votes
|
|||
1,495,689
|
|
—
|
|
—
|
|
—
|
(3) To
elect seven members of the Company’s board of directors each to serve a one-year
term expiring at the next annual meeting of stockholders.
Votes For
|
Votes Withheld
|
Broker Non-Votes
|
||||
David
Altschul
|
6,293,631
|
866,312
|
348,638
|
|||
Viet
Dinh
|
6,293,631
|
866,312
|
348,638
|
|||
Michael
Donahue
|
6,293,631
|
866,312
|
348,638
|
|||
Bradley
Navin
|
6,293,531
|
866,412
|
348,638
|
|||
Nathan
Peck
|
6,293,631
|
866,312
|
348,638
|
|||
Daniel
Stein
|
6,352,215
|
807,728
|
348,638
|
|||
Joel
Straka
|
|
6,293,631
|
|
866,312
|
|
348,638
|
(4) To
ratify the appointment of Marcum LLP as the Company's independent registered
public accounting firm for fiscal year 2010.
For
|
Against
|
Abstain
|
||
6,831,285
|
|
673,195
|
|
4,101
|
(5) To
approve an adjournment of the Annual Meeting of Stockholders, if necessary, to
permit further solicitation and vote of proxies if there were insufficient votes
at the time of the Annual Meeting to approve the Merger and to approve and adopt
the Merger Agreement.
For
|
Against
|
Abstain
|
Broker Non-Votes
|
|||
6,700,498
|
|
715,183
|
|
92,900
|
|
—
|
Item 8.01
|
Other
Events.
|
The
disclosure under the heading Introductory Note in this Current Report is
incorporated into this Item 8.01 by reference.
The
Company issued a press release dated July 29, 2010 announcing the completion of
the Merger. A copy of the press release is attached hereto as
Exhibit 99.1 and is incorporated herein by reference.
Item 9.01
|
Financial Statements and
Exhibits.
|
Exhibit Number
|
Description
|
|
3.1
|
Second
Amended and Restated Certificate of Incorporation of the
Company
|
|
3.2
|
Certificate
of Amendment to the Certificate of Designations of Series A Convertible
Preferred Stock of the Company
|
|
99.1
|
Press
Release of the Company dated July 29,
2010
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
The
Orchard Enterprises, Inc.
|
||
Date:
July 30, 2010
|
By:
|
/s/ Bradley Navin
|
Name:
Bradley Navin
|
||
Title: Chief
Executive Officer
|
Exhibit
Index
Exhibit Number
|
Description
|
|
3.1
|
Second
Amended and Restated Certificate of Incorporation of the
Company
|
|
3.2
|
Certificate
of Amendment to the Certificate of Designations of Series A Convertible
Preferred Stock of the Company
|
|
99.1
|
Press
Release of the Company dated July 29,
2010
|