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): March 16, 2010
The
Orchard Enterprises, Inc.
(Exact
Name of Registrant as Specified in its Charter)
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Delaware
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000-51761
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20-3365526
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File
Number)
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(I.R.S.
Employer Identification No.)
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23
East 4th
Street
3rd
Floor
New
York, New York
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10003
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(Address
of Principal Executive Offices)
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(Zip
Code)
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(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)
þ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o 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.
On March
16, 2010, The Orchard Enterprises, Inc. (the “Company”) entered into Amendment
No. 1 (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 clarifies the intention of the parties that the condition to the
completion of the Merger requiring the Merger Agreement and the Merger to be
approved and adopted by holders of a majority of the Company’s outstanding
voting securities not owned by Dimensional, its affiliates or Merger Sub, is not
waivable.
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.
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Exhibit
Number
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Description
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2.1
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Amendment
No. 1 to Agreement and Plan of Merger among The Orchard Enterprises, Inc.,
Dimensional Associates, LLC and Orchard Merger Sub, Inc., dated as of
March 16, 2010
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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.
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The
Orchard Enterprises, Inc. |
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Date:
March 17, 2010
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By:
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/s/
Bradley Navin |
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Name:
Bradley Navin |
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Title: Chief
Executive Officer |
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Exhibit
Index
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Exhibit
Number
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Description
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2.1
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Amendment
No. 1 to Agreement and Plan of Merger among The Orchard Enterprises, Inc.,
Dimensional Associates, LLC and Orchard Merger Sub, Inc., dated as of
March 16, 2010
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