Schedule 13D Amendment No. 3

-----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, BsdOD/mS39LKo34sNg2IRsMFNrV5Na5KE80nnRPqDtZYz9AlrYfkDNR0QwXR5BlS TWSsRzEpOkOI9d1qM2u+qw== 0001193125-08-132084.txt : 20080611 0001193125-08-132084.hdr.sgml : 20080611 20080611165819 ACCESSION NUMBER: 0001193125-08-132084 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20080611 DATE AS OF CHANGE: 20080611 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: 08893652 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. 3 Schedule 13D Amendment No. 3

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D/A

Under The Securities Exchange Act of 1934

(Amendment No. 3)*

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)

June 9, 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 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 (See Instructions)	x
13.	Percent of Class Represented by Amount in Row (11) 0%
14.	Type of Reporting Person (See Instructions) IV

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 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 (See Instructions)	x
13.	Percent of Class Represented by Amount in Row (11) 0%
14.	Type of Reporting Person (See Instructions) OO

Item 4.

Purpose of Transaction

On June 9, 2008, counsel to TU Holdings, Inc. (“Parent”), 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 Parent was exercising its right to terminate the Merger Agreement pursuant to Section 6.1(f)(i) thereof, which termination was effective immediately and also resulted in the automatic termination of the Voting Agreement. A copy of the Letter is attached hereto as Exhibit 7.1 and is incorporated herein by reference. Merisel issued a press release dated June 10, 2008 disputing the validity of the termination. ACAS considers the Merger Agreement and Voting Agreement termination effective but Parent, Merger Sub and American Capital reserve the right to evaluate a potential transaction involving Merisel or its securities.

Item 5.

Interest in Securities of the Issuer

As of June 9, 2008, Parent and American Capital beneficially own no shares of Merisel. By virtue of the termination of the Merger Agreement and the resulting termination of the Voting Agreement, as of June 9, 2008 Parent and American Capital may no longer be deemed to be the beneficial owners of more than five percent of Merisel’s common stock (including any shares that they may have previously been deemed to beneficially own as a result of such agreements).

Item 7.

Material to Be Filed as Exhibits


Exhibit No.		Description
7.1		Letter, dated June 9, 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 11, 2008

AMERICAN CAPITAL STRATEGIES, LTD.

By:		/s/ Samuel A. Flax
Name:		Samuel A. Flax
Title:		Executive Vice President, General Counsel, Chief Compliance Officer and 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

June 9, 2008

VIA FACSIMILE AND FIRST CLASS MAIL

Collins J. Seitz, Jr., Esq.

Connolly Bove Lodge & Hutz LLP

The Nemours Building

1007 North Orange Street

Wilmington, Delaware 19899

Michael J. Aiello, Esq.

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, New York 10001

Re:

March 28, 2008 Agreement and Plan of Merger (“Agreement”) by and among Merisel, Inc. (“Company”), TU Holdings, Inc. (“Parent”) and TU Merger, Inc. (“Merger Sub”)

Gentlemen:

We are writing in connection with the above-captioned Agreement. (Capitalized terms used but not defined in this letter have the meanings given to them in the Agreement.) As you know, as part of the negotiations of the Agreement and related documentation, the parties agreed that Parent has the right to terminate the Agreement, without the need in certain circumstances to wait for the expiration of any time period, in the event that any representation or warranty was inaccurate when made and/or is not capable of being made as of the Effective Time. The specific language, set forth in Section 6.1 is:

“This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, whether before or after the Company Stockholder Approval is obtained…(f) by Parent: (i) in the event … (B) that any representation or warranty of the Company set forth in the Agreement shall have been inaccurate when made or shall not be capable of being made as of the Effective Time which would reasonably be expected to result in the condition set forth in Section 5.3(a)(ii) not being satisfied…”

As previously communicated, based on information currently available, it seems clear that (1) Merisel has experienced a Company Material Adverse Effect to its business, which is continuing, such that Merisel will not be able to satisfy the Agreement’s closing conditions and (2) certain of the representations and warranties made by Merisel in the Agreement were untrue

when made, including without limitation the representation in Section 2.6(b) that, from December 31, 2007 through the date of the Agreement, there had not been any event, development or state of circumstances that had, individually or in the aggregate, a Company Material Adverse Effect. We also note that, contrary to the June 5 letter, Merisel has materially breached its obligation under the Agreement to provide access to its books and records as it has not provided information relating to its financial performance from and after April 1, 2008, as previously requested.

Because a breach of the representations and warranties set forth in Section 2.6(b) is, by its nature, not curable, the cure period set forth in Section 6.1(f)(i) is inapplicable. Similarly, because Merisel has not used its commercially reasonable efforts to provide the financial information requested pursuant to the Agreement, no cure period is applicable to that breach. Accordingly, pursuant to authority provided to us by Parent, Parent hereby terminates the Agreement pursuant to Section 6.1(f)(i) thereof, and Parent, Merger Sub and ACAS have no obligations under the Agreement. Parent, Merger Sub and ACAS reserve all legal and equitable rights and remedies under and in connection with the Agreement.

Very truly yours,

Andrew J. Varner

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

Stewart D. Aaron

Arnold & Porter LLP

399 Park Avenue

New York, New York 10022

Fax: (212) 715-1399

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