-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VY7iuokJRdataojTQBbmmxPB8H0ZjcUo4b5u4rVN1/IUxey06FkDSZLIj5ryRYQr fgR6nKg/mCUREtVyPrwhZA== 0000921895-07-002905.txt : 20071221 0000921895-07-002905.hdr.sgml : 20071221 20071221114744 ACCESSION NUMBER: 0000921895-07-002905 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20071221 DATE AS OF CHANGE: 20071221 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CRESCENDO PARTNERS II LP CENTRAL INDEX KEY: 0001219602 IRS NUMBER: 134132983 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: O CHARLEYS INC CENTRAL INDEX KEY: 0000864233 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 621192475 STATE OF INCORPORATION: TN FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-41362 FILM NUMBER: 071321504 BUSINESS ADDRESS: STREET 1: 3038 SIDCO DR CITY: NASHVILLE STATE: TN ZIP: 37204 BUSINESS PHONE: 6152568500 MAIL ADDRESS: STREET 1: 3038 SIDEO DR CITY: NASHVILLE STATE: TN ZIP: 37204 SC 13D/A 1 sc13da207087002_12202007.htm sc13da207087002_12202007.htm
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D
(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
§ 240.13d-2(a)

(Amendment No.  2)1

O’Charley’s, Inc.
(Name of Issuer)

Common Stock, no par value
(Title of Class of Securities)

670823103
(CUSIP Number)

STEVEN WOLOSKY, ESQ.
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
(212) 451-2300
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

December 20, 2007
(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨.

Note:  Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.  See § 240.13d-7 for other parties to whom copies are to be sent.


_______________
1           The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
 
CUSIP NO. 670823103
 
1
NAME OF REPORTING PERSON
 
CRESCENDO PARTNERS II, L.P., SERIES Z
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
2,360,250
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
2,360,250
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
2,360,250
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
10.6%
14
TYPE OF REPORTING PERSON
 
PN
 
2
CUSIP NO. 670823103
 
1
NAME OF REPORTING PERSON
 
CRESCENDO INVESTMENTS II, LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
2,360,250
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
2,360,250
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
2,360,250
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
10.6%
14
TYPE OF REPORTING PERSON
 
OO
 
3
CUSIP NO. 670823103
 
1
NAME OF REPORTING PERSON
 
CRESCENDO PARTNERS III, L.P.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
136,474
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
136,474
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
136,474
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
LESS THAN 1%
14
TYPE OF REPORTING PERSON
 
PN
 
4
CUSIP NO. 670823103
 
1
NAME OF REPORTING PERSON
 
CRESCENDO INVESTMENTS III, LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
136,474
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
136,474
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
136,474
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
LESS THAN 1%
14
TYPE OF REPORTING PERSON
 
OO
 
5
CUSIP NO. 670823103
 
1
NAME OF REPORTING PERSON
 
ERIC ROSENFELD
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
2,496,724
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
2,496,724
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
2,496,724
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
11.2%
14
TYPE OF REPORTING PERSON
 
IN
 
6
CUSIP NO. 670823103
 
1
NAME OF REPORTING PERSON
 
DOUGLAS BENHAM
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
PF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
10,000
8
SHARED VOTING POWER
 
- 0 - **
9
SOLE DISPOSITIVE POWER
 
10,000
10
SHARED DISPOSITIVE POWER
 
- 0 - **
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
10,000 **
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
LESS THAN 1% **
14
TYPE OF REPORTING PERSON
 
IN
 
** See Item 5.
 
7
CUSIP NO. 670823103
 
1
NAME OF REPORTING PERSON
 
ANTHONY BERGAMO
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
PF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
5,000
8
SHARED VOTING POWER
 
- 0 - **
9
SOLE DISPOSITIVE POWER
 
5,000
10
SHARED DISPOSITIVE POWER
 
- 0 - **
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
5,000 **
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
LESS THAN 1% **
14
TYPE OF REPORTING PERSON
 
IN
 
** See Item 5.
 
8
CUSIP NO. 670823103
 
1
NAME OF REPORTING PERSON
 
ARNAUD AJDLER
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
BELGIUM
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
- 0 -
8
SHARED VOTING POWER
 
- 0 - **
9
SOLE DISPOSITIVE POWER
 
- 0 -
10
SHARED DISPOSITIVE POWER
 
- 0 - **
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
- 0 - **
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
0% **
14
TYPE OF REPORTING PERSON
 
IN
 
** See Item 5.
 
9
CUSIP NO. 670823103
 
1
NAME OF REPORTING PERSON
 
GREGORY MONAHAN
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
- 0 -
8
SHARED VOTING POWER
 
- 0 - **
9
SOLE DISPOSITIVE POWER
 
- 0 -
10
SHARED DISPOSITIVE POWER
 
- 0 - **
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
- 0 - **
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
0% **
14
TYPE OF REPORTING PERSON
 
IN
 
** See Item 5.
 
10
CUSIP NO. 670823103
 
The following constitutes Amendment No. 2 (“Amendment No. 2”) to the Schedule 13D filed by the undersigned (the “Schedule 13D”).  This Amendment No. 2 amends the Schedule 13D as specifically set forth.

Item 2 is hereby amended to add the following:

Douglas Benham, Anthony Bergamo, Arnaud Ajdler and Gregory Monahan are hereby added as Reporting Persons to the Schedule 13D (together, with the original Reporting Persons, the “Crescendo Group”).

Douglas Benham (“Mr. Benham”) is a nominee for the Board of Directors of the Issuer and his principal occupation is serving as President and Chief Executive Officer of DNB Advisors, LLC.  The principal business address of Mr. Benham is c/o DNB Advisors, LLC, 2905 Andrews Drive, Atlanta, Georgia 30305.  Mr. Benham is a citizen of the United States of America.

Anthony Bergamo (“Mr. Bergamo”) is a nominee for the Board of Directors of the Issuer and his principal occupation is serving as Vice Chairman of MB Real Estate. The principal business address of Mr. Bergamo is c/o MB Real Estate, 335 Madison Avenue, 14th Floor, New York, New York 10017.  Mr. Bergamo is a citizen of the United States of America.

Arnaud Ajdler (“Mr. Ajdler”) is a nominee for the Board of Directors of the Issuer and his principal occupation is serving as Managing Director of Crescendo Partners II, L.P.  The principal business address of Mr. Ajdler is c/o Crescendo Partners, L.P., 825 Third Avenue, 40th Floor, New York, New York 10022.  Mr. Ajdler is a citizen of Belgium.

Gregory Monahan (“Mr. Monahan”) is a nominee for the Board of Directors of the Issuer and his principal occupation is serving as Vice President of Crescendo Partners II, L.P.  The principal business address of Mr. Monahan is c/o Crescendo Partners, L.P., 825 Third Avenue, 40th Floor, New York, New York 10022.  Mr. Monahan is a citizen of the United States of America.

Item 3 is hereby amended and restated to read as follows:

The aggregate purchase price of the 2,496,724 Shares owned in the aggregate by Crescendo Partners II and Crescendo Partners III is approximately $37,642,642 including brokerage commissions.  The Shares owned by Crescendo Partners II and Crescendo Partners III were acquired with partnership funds.

Item 4 is hereby amended to add the following:

The Reporting Persons continue to believe that the Shares are significantly undervalued and that the current price of the Shares does not reflect (i) the intrinsic value of the Issuer’s real estate assets, (ii) the opportunity to increase profitability through refranchising of Issuer-owned restaurants in under-penetrated markets and (iii) the opportunity to accelerate the nationwide rollout of the Issuer’s O’Charley's-brand concept through franchising agreements.
 
11
CUSIP NO. 670823103
 

The Reporting Persons have engaged in discussions with certain members of the Issuer’s senior management regarding representation on the Issuer’s Board and various strategic alternatives to maximize shareholder value, including (i) a significant repurchase of shares, (ii) the sale-leaseback of the Issuer’s real estate assets, (iii) a sale of the Issuer’s Stoney River restaurant concept, (iv) the refranchising of Issuer-owned restaurants in under-penetrated markets and (v) the outright sale of the Issuer.  Such discussions between certain of the Reporting Persons and certain members of the Issuer’s senior management have currently ceased and the Reporting Persons were unable to reach an agreement with the Issuer regarding Board representation.

As a result, on December 20, 2007, Crescendo Partners II hand-delivered a letter dated December 19, 2007 to the Corporate Secretary of the Issuer (the "Nomination Letter") nominating Messrs. Benham, Bergamo, Ajdler and Monahan, as set forth therein, for election to the Board at the Issuer's 2008 annual meeting of shareholders (the "2008 Annual Meeting").  The Reporting Persons may seek to re-engage in discussions with certain members of the Issuer’s senior management and Board regarding the matters discussed above.

Item 5(a) is hereby amended and restated to read as follows:

(a)           The aggregate percentage of Shares reported owned by each person named herein is based upon 22,197,359 Shares outstanding, which is the total number of Shares reported to be outstanding as of November 12, 2007 in the Issuer’s Quarterly Report on Form 10-Q, as filed with the Securities and Exchange Commission on November 14, 2007.

As of the close of business on December 20, 2007, Crescendo Partners II beneficially owned 2,360,250 Shares, constituting approximately 10.6% of the Shares outstanding.  As the general partner of Crescendo Partners II, Crescendo Investments II may be deemed to beneficially own the 2,360,250 Shares owned by Crescendo Partners II, constituting approximately 10.6% of the Shares outstanding.  As the managing member of Crescendo Investments II, which in turn is the general partner of Crescendo Partners II, Mr. Rosenfeld may be deemed to beneficially own the 2,360,250 Shares owned by Crescendo Partners II, constituting approximately 10.6% of the Shares outstanding.  Mr. Rosenfeld has sole voting and dispositive power with respect to the 2,360,250 Shares owned by Crescendo Partners II by virtue of his authority to vote and dispose of such Shares.  Crescendo Investments II and Mr. Rosenfeld disclaim beneficial ownership of the Shares held by Crescendo Partners II, except to the extent of their pecuniary interest therein.

As of the close of business on December 20, 2007, Crescendo Partners III beneficially owned 136,474 Shares, constituting less than one percent of the Shares outstanding.  As the general partner of Crescendo Partners III, Crescendo Investments III may be deemed to beneficially own the 136,474 Shares owned by Crescendo Partners II, constituting less than one percent of the Shares outstanding.  As the managing member of Crescendo Investments III, the general partner of Crescendo Partners III, Mr. Rosenfeld may be deemed to beneficially own the 136,474 Shares owned by Crescendo Partners III, constituting less than one percent of the Shares outstanding.  Mr. Rosenfeld has sole voting and dispositive power with respect to the 136,474 Shares owned by Crescendo Partners III by virtue of his authority to vote and dispose of such Shares.  Crescendo Investments III and Mr. Rosenfeld disclaim beneficial ownership of the Shares held by Crescendo Partners III, except to the extent of their pecuniary interest therein.
12
CUSIP NO. 670823103
 
As of the close of business on December 21, 2007, Mr. Benham beneficially owned 10,000 Shares, constituting less than one percent of the Shares outstanding.  Mr. Benham, as a member of a “group” for the purposes of Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as amended, may be deemed to beneficially own the 2,360,250 Shares owned by Crescendo Partners II and the 136,474 Shares owned by Crescendo Partners III.  Mr. Benham disclaims beneficial ownership of the Shares owned by Crescendo Partners II and Crescendo Partners III.

As of the close of business on December 20, 2007, Anthony Bergamo beneficially owned 5,000 Shares, constituting less than one percent of the Shares outstanding.  Mr. Bergamo, as a member of a “group” for the purposes of Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as amended, may be deemed to beneficially own the 2,360,250 Shares owned by Crescendo Partners II and the 136,474 Shares owned by Crescendo Partners III.  Mr. Bergamo disclaims beneficial ownership of the Shares owned by Crescendo Partners II and Crescendo Partners III.

Neither of Messrs. Ajdler and Monahan directly owns any Shares nor have they entered into any transactions in the Shares since the filing of Amendment No.1 to the Schedule 13D.  Each of Messrs. Ajdler and Monahan as members of a “group” for the purposes of Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as amended, may be deemed to beneficially own the 2,360,250 Shares owned by Crescendo Partners II and the 136,474 Shares owned by Crescendo Partners III.  Each of Messrs. Ajdler and Monahan disclaims beneficial ownership of such Shares

Item 5(c) is hereby amended to add the following:

(c)           Schedule A annexed hereto lists all transactions in the Shares by the Reporting Persons since the filing of Amendment No. 1 to the Schedule 13D.  All of such transactions were effected in the open market.

Item 6 is hereby amended to add the following:

On December 21, 2007, the Reporting Persons entered into a Joint Filing and Solicitation Agreement, in which, among other things, (a) the parties agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer to the extent required under applicable securities laws and (b) the parties agreed to form the group for the purpose of soliciting proxies or written consents for the election of the persons nominated by Crescendo Partners II to the Issuer’s Board at the 2008 Annual Meeting and for the purpose of taking all other actions incidental to the foregoing.

Item 7 is hereby amended to include the following exhibits:

Exhibit 99.1.  The Joint Filing and Solicitation Agreement, dated as of December 21, 2007, by and among Crescendo Partners II, L.P., Series Z, Crescendo Investments II, LLC, Crescendo Partners III, L.P., Crescendo Investments III, LLC, Eric Rosenfeld, Mr. Benham, Mr. Bergamo, Mr. Ajdler and Mr. Monahan.
 
13
CUSIP NO. 670823103
 
 
SIGNATURES

After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: December 21, 2007
CRESCENDO PARTNERS II, L.P., SERIES Z
   
 
By:
Crescendo Investments II, LLC
General Partner
   
 
By:
  /s/ Eric Rosenfeld
 
Name:
Eric Rosenfeld
 
Title:
Managing Member


 
CRESCENDO INVESTMENTS II, LLC
   
 
By:
  /s/ Eric Rosenfeld
 
Name:
Eric Rosenfeld
 
Title:
Managing Member


 
CRESCENDO PARTNERS III, L.P.
   
 
By:
Crescendo Investments III, LLC
General Partner
   
 
By:
  /s/ Eric Rosenfeld
 
Name:
Eric Rosenfeld
 
Title:
Managing Member


 
CRESCENDO INVESTMENTS III, LLC
   
 
By:
  /s/ Eric Rosenfeld
 
Name:
Eric Rosenfeld
 
Title:
Managing Member


   /s/ Eric Rosenfeld
 
ERIC ROSENFELD


   /s/ Douglas Benham
 
DOUGLAS BENHAM
 
 
14
CUSIP NO. 670823103

 
   /s/ Anthony Bergamo
 
ANTHONY BERGAMO


   /s/ Arnaud Ajdler
 
ARNAUD AJDLER


   /s/ Gregory Monahan
 
GREGORY MONAHAN

 
15
CUSIP NO. 670823103
 

SCHEDULE A
Transactions in the Shares Since Filing of Amendment No. 1 to the Schedule 13D

Shares of Common Stock
Purchased
Price Per
Share($U.S.)
Date of
Purchase

CRESCENDO PARTNERS II, L.P., SERIES Z
38,000
14.7210
12/05/07
45,000
15.4823
12/14/07
50,000
15.4732
12/17/07
26,500
14.7132
12/19/07
69,500
14.7506
12/20/07

CRESCENDO INVESTMENTS II, LLC
None

CRESCENDO PARTNERS III, L.P.
None

CRESCENDO INVESTMENTS III, LLC
None

ERIC ROSENFELD
None

DOUGLAS BENHAM
9,000
15.6200
12/17/07

ANTHONY BERGAMO
100
15.6400
12/13/07
100
15.5299
12/13/07
200
15.6644
12/13/07
300
15.5300
12/13/07
300
15.6500
12/13/07
300
15.6600
12/13/07
500
15.6300
12/13/07
600
15.6499
12/13/07
900
15.5200
12/13/07
1,700
15.5500
12/13/07


 
16
CUSIP NO. 670823103
 


ARNAUD AJDLER
None


GREGORY MONAHAN
None

 
17
 












 EX-99.1 2 ex99to13da207087002_12202007.htm ex99to13da207087002_12202007.htm
JOINT FILING AND SOLICITATION AGREEMENT
 
WHEREAS, certain of the undersigned are stockholders, direct or beneficial, of O’Charley’s Inc., a Tennessee corporation (the “Company”);
 
WHEREAS, Crescendo Partners II, L.P., Series Z (“Crescendo Partners II”), Crescendo Investments II, LLC, Crescendo Partners III, L.P., Crescendo Investments III, LLC, Eric Rosenfeld, Douglas Benham, Anthony Bergamo, Arnaud Ajdler and Gregory Monahan  wish to form a group for the purpose of seeking representation on the Board of Directors of the Company at the 2008 annual meeting of stockholders of the Company, or any other meeting of stockholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof (the “2008 Annual Meeting”) and for the purpose of taking all other action necessary to achieve the foregoing.
 
NOW, IT IS AGREED, this 21st day of December 2007 by the parties hereto:
 
1.           In accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), each of the undersigned (collectively, the “Group”) agrees to the joint filing on behalf of each of them of statements on Schedule 13D, and any amendments thereto, with respect to the securities of the Company.  Each member of the Group shall be responsible for the accuracy and completeness of his/its own disclosure therein, and is not responsible for the accuracy and completeness of the information concerning the other members, unless such member knows or has reason to know that such information is inaccurate.  
 
2.           So long as this Agreement is in effect, each of the undersigned shall provide written notice to Olshan Grundman Frome Rosenzweig & Wolosky LLP (“Olshan”) of (i) any of their purchases or sales of securities of the Company; or (ii) any securities of the Company over which they acquire or dispose of beneficial ownership.  Notice shall be given no later than 24 hours after each such transaction.
 
3.           Each of the undersigned agrees to form the Group for the purpose of soliciting proxies or written consents for the election of the persons nominated by the Group to the Board of Directors of the Company at the 2008 Annual Meeting and for the purpose of taking all other actions incidental to the foregoing.
 
4.           Crescendo Partners II agrees to bear all expenses incurred in connection with the Group’s activities, including expenses incurred by any of the parties in the Solicitation.  Notwithstanding the foregoing, Crescendo Partners II shall not be required to reimburse any party for (i) out-of-pocket expenses incurred by a party in the aggregate in excess of $250 without Crescendo Partners II’s prior written approval; (ii) the value of the time of any party; (iii) legal fees incurred without Crescendo Partner II’s prior written approval; or (iv) the costs of any counsel, other than Olshan, employed in connection with any pending or threatened litigation without Crescendo Partner II’s prior written approval.
 
 

5.           The relationship of the parties hereto shall be limited to carrying on the business of the Group in accordance with the terms of this Agreement.  Such relationship shall be construed and deemed to be for the sole and limited purpose of carrying on such business as described herein.  Nothing herein shall be construed to authorize any party to act as an agent for any other party, or to create a joint venture or partnership, or to constitute an indemnification.  Nothing herein shall restrict any party’s right to purchase or sell securities of the Company, as he/it deems appropriate, in his/its sole discretion, provided that all such sales are made in compliance with all applicable securities laws.
 
6.           This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute but one and the same instrument, which may be sufficiently evidenced by one counterpart.
 
7.           In the event of any dispute arising out of the provisions of this Agreement or their investment in the Company, the parties hereto consent and submit to the exclusive jurisdiction of the Federal and State Courts in the State of New York.
 
8.           Any party hereto may terminate his/its obligations under this Agreement on 24 hours’ written notice to all other parties, with a copy by fax to Steven Wolosky at Olshan, Fax No. (212) 451-2222.
 
9.           Each party acknowledges that Olshan shall act as counsel for both the Group and Crescendo Partners II and its affiliates relating to their investment in the Company.
 
10.           Each of the undersigned parties hereby agrees that this Agreement shall be filed as an exhibit to a Schedule 13D pursuant to Rule 13d-1(k)(1)(iii) under the Exchange Act.

 

 
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.
 

 
CRESCENDO PARTNERS II, L.P., SERIES Z
   
 
By:
Crescendo Investments II, LLC
General Partner
   
 
By:
/s/ Eric Rosenfeld
   
Name:
Eric Rosenfeld
   
Title:
Managing Member


 
CRESCENDO INVESTMENTS II, LLC
   
 
By:
/s./ Eric Rosenfeld
   
Name:
Eric Rosenfeld
   
Title:
Managing Member


 
CRESCENDO PARTNERS III, L.P.
   
 
By:
Crescendo Investments II, LLC
General Partner
   
 
By:
/s/ Eric Rosenfeld
   
Name:
Eric Rosenfeld
   
Title:
Managing Member


 
CRESCENDO INVESTMENTS III, LLC
   
 
By:
/s/ Eric Rosenfeld
   
Name:
Eric Rosenfeld
   
Title:
Managing Member


 
/s/ Eric Rosenfeld
 
ERIC ROSENFELD



 
/s/ Douglas Benham
 
DOUGLAS BENHAM


 
/s/ Anthony Bergamo
 
ANTHONY BERGAMO


 
/s/ Arnaud Ajdler
 
ARNAUD AJDLER


 
/s/ Gregory Monahan
 
GREGORY MONAHAN




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