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
|
Copies
to:
|
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
|
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.
|
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. |
|
•
|
“SUMMARY
TERM SHEET”
|
•
|
“QUESTIONS
AND ANSWERS ABOUT THE MERGER AND THE ANNUAL MEETING OF
STOCKHOLDERS”
|
•
|
“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”
|
•
|
“SUMMARY
TERM SHEET — Market Price of Our Common
Stock”
|
•
|
“IMPORTANT
INFORMATION REGARDING THE ORCHARD — Market Price of our Common Stock and
Dividend Information”
|
•
|
“IMPORTANT
INFORMATION REGARDING THE ORCHARD — Market Price of our Common Stock and
Dividend Information”
|
|
•
|
“IMPORTANT
INFORMATION REGARDING THE ORCHARD — Transactions in Common
Stock”
|
•
|
“ELECTION
OF DIRECTORS — Director
Compensation”
|
•
|
“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”
|
|
•
|
“SUMMARY
TERM SHEET”
|
•
|
“QUESTIONS
AND ANSWERS ABOUT THE MERGER AND THE ANNUAL MEETING OF
STOCKHOLDERS”
|
•
|
“SPECIAL
FACTORS”
|
•
|
“THE
ANNUAL MEETING — Vote Required”
|
•
|
“APPROVAL
AND ADOPTION OF THE MERGER AGREEMENT — Vote
Required”
|
•
|
“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”
|
•
|
“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”
|
•
|
“THE
MERGER AGREEMENT”
|
•
|
“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”
|
|
•
|
“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”
|
•
|
“APPRAISAL
RIGHTS”
|
•
|
“APPENDIX
D — SECTION 262 OF THE GENERAL CORPORATION LAW OF THE STATE OF
DELAWARE”
|
|
•
|
“SPECIAL
FACTORS — Provisions for Non-Continuing
Stockholders”
|
•
|
“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”
|
•
|
“THE
MERGER AGREEMENT”
|
•
|
“HISTORICAL
RELATIONSHIP BETWEEN DIMENSIONAL ASSOCIATES AND THE
ORCHARD”
|
•
|
“CERTAIN
TRANSACTIONS”
|
•
|
“TRANSACTIONS
WITH RELATED PERSONS”
|
•
|
“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”
|
•
|
“THE
MERGER AGREEMENT”
|
•
|
“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”
|
|
•
|
“SUMMARY
TERM SHEET”
|
•
|
“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”
|
•
|
“THE
MERGER AGREEMENT”
|
•
|
“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”
|
•
|
“SUMMARY
TERM SHEET”
|
•
|
“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”
|
•
|
“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”
|
|
•
|
“SUMMARY
TERM SHEET”
|
•
|
“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”
|
|
•
|
“SUMMARY
TERM SHEET”
|
•
|
“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”
|
•
|
“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”
|
•
|
“SUMMARY
TERM SHEET”
|
•
|
“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”
|
|
•
|
“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”
|
•
|
“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”
|
•
|
“SPECIAL
FACTORS — Background of the Merger”
|
•
|
“SPECIAL
FACTORS — Fairness of the Merger, 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 — 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”
|
•
|
“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”
|
•
|
“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”
|
|
•
|
“SUMMARY
TERM SHEET — Expense Reimbursement”
|
•
|
“SPECIAL
FACTORS — Financing of the Merger”
|
•
|
“SPECIAL
FACTORS — Fees and Expenses of the
Merger”
|
•
|
“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”
|
|
•
|
“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”
|
•
|
“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”
|
|
•
|
“IMPORTANT
INFORMATION REGARDING THE ORCHARD — Summarized Financial
Information”
|
•
|
“IMPORTANT
INFORMATION REGARDING THE ORCHARD — Book Value Per
Share”
|
•
|
“WHERE
YOU CAN FIND MORE INFORMATION”
|
•
|
“SUMMARY
TERM SHEET”
|
•
|
“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”
|
Exhibit
Number
|
|
Description
|
|
(a)(i)
|
|
Letter
to Stockholders of The Orchard Enterprises, Inc. (incorporated herein by
reference to the amended Schedule 14A filed with the SEC by the Company on
June 7, 2010).
|
|
(a)(ii)
|
|
Notice
of Annual Meeting of Stockholders of The Orchard Enterprises, Inc.
(incorporated herein by reference to the amended Schedule 14A filed with
the SEC by the Company on June 7, 2010).
|
|
(a)(iii)
|
|
Preliminary
Proxy Statement of The Orchard Enterprises, Inc. (incorporated herein by
reference to the amended Schedule 14A filed with the SEC by the Company on
June 7, 2010).
|
|
(a)(iv)
|
|
Form
of Preliminary Proxy Card (incorporated herein by reference to the amended
Schedule 14A filed with the SEC by the Company on June 7,
2010).
|
|
(c)(i)
|
|
Opinion
of Fesnak and Associates, LLP, dated March 15, 2010 (incorporated herein
by reference to Appendix C to the amended Schedule 14A filed with the SEC
by the Company on June 7, 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 amended Schedule 14A filed
with the SEC by the Company on June 7, 2010 ).
|
|
(f)(i)
|
|
Section
262 of the General Corporation Law of the State of Delaware (incorporated
herein by reference to Appendix D to the amended Schedule 14A filed with
the SEC by the Company on June 7,
2010).
|
THE
ORCHARD ENTERPRISES, INC.
|
||||
By:
|
/s/
Nathan Fong
|
|||
Name:
|
Nathan
Fong
|
|||
Title:
|
Executive
Vice President and Chief
Financial Officer
|
DIMENSIONAL
ASSOCIATES, LLC
|
||||
By:
|
JDS
Capital, L.P., its Manager
|
|||
By:
|
JDS
Capital Management, LLC,
its
General Partner
|
|||
By:
|
/s/
Joseph D. Samberg
|
|||
Name:
|
Joseph
D. Samberg
|
|||
Title:
|
Managing
Member
|
ORCHARD
MERGER SUB, INC.
|
||||
By:
|
/s/
Daniel C. Stein
|
|||
Name:
|
Daniel
C. Stein
|
|||
Title:
|
President
|
JDS
CAPITAL, L.P.
|
|||||
By:
|
JDS
Capital Management, LLC,
its
General Partner
|
||||
By:
|
/s/
Joseph D. Samberg
|
||||
Name:
|
Joseph
D. Samberg
|
||||
Title:
|
Managing
Member
|
JDS
CAPITAL MANAGEMENT, LLC
|
|||||
By:
|
/s/
Joseph D. Samberg
|
||||
Name:
|
Joseph
D. Samberg
|
||||
Title:
|
Managing
Member
|
JOSEPH
D. SAMBERG
|
|||||
By:
|
/s/
Joseph D. Samberg
|
||||
DANIEL
C. STEIN
|
|||||
By:
|
/s/
Daniel C. Stein
|
||||