Schedule 13D Amendment No. 2

-----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, BdQm0cyfKkfrDl5MYnIxq23wkBuy6lC89TT4WH2gdhH4nWYZsTBjsIPmUPbtM1Fs HNxE06frX/Czw8O9h3tJpw== 0001193125-08-127353.txt : 20080603 0001193125-08-127353.hdr.sgml : 20080603 20080603153931 ACCESSION NUMBER: 0001193125-08-127353 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20080603 DATE AS OF CHANGE: 20080603 GROUP MEMBERS: TU HOLDINGS, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MERISEL INC /DE/ CENTRAL INDEX KEY: 0000724941 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-COMPUTER & PERIPHERAL EQUIPMENT & SOFTWARE [5045] IRS NUMBER: 954172359 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-40042 FILM NUMBER: 08877424 BUSINESS ADDRESS: STREET 1: 200 CONTINENTAL BLVD CITY: EL SEGUNDO STATE: CA ZIP: 90245-0984 BUSINESS PHONE: 3106153080 MAIL ADDRESS: STREET 1: 200 CONTINENTAL BLVD CITY: EL SEGUNDO STATE: CA ZIP: 90245-0984 FORMER COMPANY: FORMER CONFORMED NAME: SOFTSEL COMPUTER PRODUCTS INC DATE OF NAME CHANGE: 19910509 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN CAPITAL STRATEGIES LTD CENTRAL INDEX KEY: 0000817473 IRS NUMBER: 521451377 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 2 BETHESDA METRO CENTER STREET 2: 14TH FL CITY: BETHESDA STATE: MD ZIP: 20814 BUSINESS PHONE: 3019516122 MAIL ADDRESS: STREET 1: 2 BETHESDA METRO CENTER STREET 2: 14TH FL CITY: BETHESDA STATE: MD ZIP: 20814 SC 13D/A 1 dsc13da.htm SCHEDULE 13D AMENDMENT NO. 2 Schedule 13D Amendment No. 2

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D/A

Under The Securities Exchange Act of 1934

(Amendment No. 2)*

Merisel, Inc.

(Name of Issuer)

Common Stock – $.01 Par Value

(Title of Class of Securities)

589849 10 8

(CUSIP Number)

Samuel A. Flax

Executive Vice President

American Capital Strategies, Ltd.

2 Bethesda Metro Center, 14th Floor

Bethesda, MD 20814

(301) 951-6122

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

May 30, 2008

(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.

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).

SCHEDULE 13D

CUSIP No. 589849 10 8


1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). American Capital Strategies, Ltd. 52-1451377
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds (See Instructions) WC
5.	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 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 0
		8. Shared Voting Power 6,590,893¹
		9. Sole Dispositive Power 0
		10. Shared Dispositive Power 6,590,893¹


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 6,590,893¹
12.	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	x
13.	Percent of Class Represented by Amount in Row (11) 68.5%
14.	Type of Reporting Person (See Instructions) IV

¹	Includes 1,590,893 shares of common stock into which the convertible preferred stock beneficially owned by the Stockholder is convertible within 60 days of June 3, 2008.

CUSIP No. 589849 10 8


1.	Names of Reporting Persons TU Holdings, Inc.
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
3.	SEC Use Only
4.	Source of Funds (See Instructions) OO
5.	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 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 0
		8. Shared Voting Power 6,590,893²
		9. Sole Dispositive Power 0
		10. Shared Dispositive Power 6,590,893²


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 6,590,893²
12.	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	x
13.	Percent of Class Represented by Amount in Row (11) 68.5%
14.	Type of Reporting Person (See Instructions) OO

²	Includes 1,590,893 shares of common stock into which the convertible preferred stock beneficially owned by the Stockholder is convertible within 60 days of June 3, 2008.

Item 4.

Purpose of Transaction

On May 30, 2008, counsel to TU Holdings, Inc. (“Holdings”), TU Merger Sub, Inc. (“Merger Sub”) and American Capital Strategies, Ltd. (“American Capital” and collectively with Holdings and Merger Sub, “ACAS”) notified counsel to Merisel, Inc. (“Merisel”) in writing (the “Letter”) that based upon the information currently available to ACAS, including information in Merisel’s Form 10-Q for the first quarter that was filed on May 15, 2008, which included financial results that were even worse than those that had been previously disclosed by Merisel, ACAS has concluded that Merisel has experienced a Company Material Adverse Effect to its business, which is continuing, such that Merisel will not be able to satisfy the Merger Agreement’s closing conditions. In addition, counsel to ACAS indicated that this Company Material Adverse Effect suggests that the representations and warranties in the Merger Agreement were untrue when made. Under the Letter, ACAS reserved any and all of its contractual and non-contractual rights and remedies, including, but not limited to, the right to terminate the Merger Agreement. A copy of the Letter is attached hereto as Exhibit 7.1 and is incorporated herein by reference.

Item 7.

Material to Be Filed as Exhibits


Exhibit No.		Description
7.1		Letter, dated May 30, 2008, from counsel to American Capital Strategies, Ltd. to counsel to Merisel, Inc.

Signature

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: June 3, 2008


AMERICAN CAPITAL STRATEGIES, LTD.

By:		/s/ Cydonii Fairfax
Name:		Cydonii Fairfax
Title:		Vice President and Assistant Secretary

TU HOLDINGS, INC.

By:		/s/ Dean Anderson
Name:		Dean Anderson
Title:		President

EX-7.1 2 dex71.htm LETTER Letter

Exhibit 7.1

LETTERHEAD OF O’MELVENY & MYERS LLP

May 30, 2008

VIA FACSIMILE & FIRST CLASS MAIL

Michael J. Aiello

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, New York 10153

Re:

March 28, 2008 Agreement and Plan of Merger by and among

Merisel, Inc., TU Holdings, Inc. and TU Merger, Inc.

Dear Mike:

Please refer to my letter to you dated May 8, 2008. In my letter, ACAS set forth three possible alternatives: (i) renegotiating the transaction price; (ii) mutually agreeing to terminate the merger agreement; or (iii) waiting to see if the closing conditions are all satisfied by the outside date. Based on our discussions, it appears that your client will not renegotiate the transaction price at a level that ACAS believes is appropriate. In addition, we understand that your client will not mutually agree to terminate the merger agreement.

As you know, one of the conditions to closing the merger is that since the date of the merger agreement, there shall not have occurred and be continuing any Company Material Adverse Effect. In addition, Merisel represented and warranted that from December 31, 2007 through the date of the merger agreement, there had not been a Company Material Adverse Effect. Since sending my May 8 letter, we have reviewed Merisel’s 10Q for the first quarter that was released on May 15, which included financial results that were even worse than those that had been previously disclosed. Merisel’s business has deteriorated substantially in the first quarter of 2008, as compared to the February 7, 2008 forecasts we received from Merisel management.

Those forecasts projected that Merisel’s EBITDA for the first quarter of 2008 would total $2,554,000 (after adjusting for actual January performance). However, Merisel’s actual EBITDA for the quarter was only $811,000 (according to Merisel’s 10Q), a 68.2% negative variance. We note that ACAS has requested, but not yet received, Merisel’s April financial results.

In the circumstances, based upon the information currently available to ACAS, it seems clear that Merisel has experienced a Company Material Adverse Effect to its business, which is continuing, such that Merisel will not be able to satisfy the merger agreement’s closing conditions. This Company Material Adverse Effect also suggests that the representations and warranties in the merger agreement were untrue when made.

ACAS hereby reserves its right to terminate the merger agreement pursuant to Section 6.1(f)(i) thereof, and also reserves any and all of its contractual and non-contractual rights and remedies arising out of this situation.

Very truly yours,

Gregory P. Patti, Jr.

of O’MELVENY & MYERS LLP


Enclosure

cc:		Merisel, Inc.
		127 West 30^th Street, 5^th floor New York, New York 10001
		Fax: (917) 351-5889
		Attn: Mr. Donald R. Uzzi

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