SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [x]
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Preliminary Proxy Statement
Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
Definitive Proxy Statement [x]
Definitive Additional Materials
Soliciting Material Pursuant to ss.240.14a-11(c) or ss.240.14a-
12
TM Entertainment & Media
(Name of Registrant as Specified in Its Charter)
Opportunity Partners L.P.
Name of Person(s) Filing Proxy Statement, if other than the
Registrant)
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No fee required [x].
Fee computed on table below per Exchange Act Rules 14a-6(i)(4)
and 0-11.
(1) Title of each class of securities to which transaction
applies:
(2) Aggregate number of securities to which transaction
applies:
(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (Set forth the
amount on which the filing fee is calculated and state how it
was determined):
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(4) Date Filed:
Opportunity Partners L.P., 60 Heritage Drive, Pleasantville, NY 10570
(914) 747-5262 // Fax: (914) 747-2150 // pgoldstein@bulldoginvestors.com
December 30, 2008
Dear Fellow Shareholder of TM Entertainment and Media, Inc. (TMI):
TMIs trust account contains about $7.91 per share. Since its stock price
is far below $7.91, we believe it is in the best interests of the public
shareholders to distribute substantially all the cash in the trust account
and leave TMI as a shell corporation with a de minimus amount of cash.
To that end, we propose (1) adopting a bylaw to take effect immediately to
increase the size of the board from four to nine directors, and (2) electing
a slate of directors to fill the five open seats thereby created that is
committed to distribute substantially all the cash in the trust account.
The key question for public shareholders is: What is the likelihood that the
shares will trade above $7.91 by October 17, 2009, TMIs deadline of for
completing a transaction? We think it is virtually nil and that public
shareholders can therefore maximize their rate of return by having
substantially all the cash in the trust account distributed now.
TMIs promoters disagree. They point to several SPACs that they say recently
completed a transaction successfully: Vector Intersect, FMG, Heckman,
and Hyde Park. Success is indeed in the eye of the beholder.
None of those SPACs traded above their liquidating value when the successful
transaction closed. Worse, the public shareholders that voted in favor of
the transactions have lost money because the stock prices of these former
SPACs immediately fell and are respectively now about 16%, 67%, 32% and
45% lower than the cash in their (former) trust accounts!
Moreover, TMIs warrants are trading at about one cent and on the verge of
failing to meet the stock exchanges listing requirements. That reflects
extreme pessimism that any transaction will be completed by October 17, 2009.
Why are TMIs promoters opposed to distributing substantially all the cash in
the trust account? The answer is likely that their founders shares and
warrants will then become virtually worthless. Since they face is an obvious
conflict of interest you need to make your own decision about what is best for
you. We think you will come to the same conclusion we have reached.
If you agree with us, please complete and return the enclosed consent card
immediately.
Very truly yours,
Phillip Goldstein
Kimball & Winthrop, Inc.
General Partner
CONSENT STATEMENT OF OPPORTUNITY PARTNERS L.P. TO OBTAIN CONTROL OF THE BOARD
OF DIRECTORS IN ORDER DISTRIBUTE SUBSTANTIALLY ALL THE CASH IN THE TRUST
ACCOUNT OF TM ENTERTAINMENT AND MEDIA, INC. (TMI)
Opportunity Partners L.P. is a private investment partnership in the Bulldog
Investors group of funds and is a major shareholder of TMI. We are seeking
the consent of the shareholders of TMI of record as of December 19, 2008 to:
(1)adopt a bylaw to take effect immediately to increase the size of the board
of directors from four, its current size, to nine, and (2) nominate a slate
of directors committed, barring any material changes in circumstances,
to distribute substantially all the cash in the trust account, to fill the
five open seats thereby created. After such distribution, TMI would be a
shell corporation with a de minimus amount of cash.
REASON FOR THE CONSENT SOLICITATION
As of December 12, 2008, TMIs shares were at $7.23 and the trust account had
cash of about $7.91 per share. Since TMIs stock price is significantly below
the value of the trust account, we believe it is in the best interests of
TMIs shareholders to distribute substantially all the cash in the trust
account and leave TMI as a shell corporation with a de minimus amount of cash.
CONSENT PROCEDURE
Section 228 of the Delaware General Corporation Law (DGCL) provides that any
action that may be taken at a meeting of TMIs shareholders may be taken
without a meeting, without prior notice and without a vote if written consents
of the action are signed by the holders of more than 50% of TMIs 12,505,000
outstanding shares and are properly delivered to TMI. Pursuant to Section 278
of the DGCL,TMIs corporate life is currently set to expire on October 17, 2009
unless shareholders vote to extend it (in connection with the consummation of
a business combination). Recently, the boards of several SPACs, including
China Healthcare Acquisition Corp. have determined to substantially liquidate
the trust account before their corporate life expired. We know of no reason
that shareholders cannot act by written consent to elect directors that are
committed to distribute substantially all the cash in the trust account and
leave TMI as a shell corporation with a de minimus amount of cash.
For an action to be effective, properly unrevoked written consents from
shareholders owning more than 50% of TMIs outstanding shares must be delivered
to TMI within 60 days of the earliest dated written consent delivered to TMI.
You may revoke your consent at any time prior to that date by delivering a
written revocation to us or to TMI. After that date all consents will become
invalid. We will make a public filing promptly after we deliver our first
written consent to TMI with the Securities and Exchange Commission to notify
shareholders when our consent solicitation will expire. If you complete and
return a GREEN consent card to us, your shares will be aggregated with those
of all other shareholders that return GREEN consent cards.
If, prior to the expiration date, we have received what we believe are
unrevoked consent cards from the holders of more than 50% of TMIs outstanding
shares, we will promptly deliver them to TMI.
If the aforementioned actions become effective as a result of this consent
solicitation, Section 228(e) of the DGCL requires TMI to notify stockholders
who have not executed written consents as promptly as possible by press
release or otherwise.
INCUMBENT AND PROPOSED NOMINEES
The incumbent directors are Theodore S. Green, Malcolm Bird, Jonathan F. Miller
and John W. Hyde, each of whom opposes this consent solicitation. We are
seeking your consent to elect the following five persons as directors.
They are committed to distribute substantially all the cash in the trust
account and leave TMI as a shell corporation with a de minimus amount of cash:
Gerald Hellerman ( born 1937 ); 5431 NW 21st Avenue, Boca Raton, FL 33496
Mr. Hellerman is a director of MVC Acquisition Corp. and is a director and
Chairman of the Audit Committee of MVC Capital, Inc. Mr. Hellerman owns and
has served as Managing Director of Hellerman Associates, a financial and
corporate consulting firm, since the firms inception in 1993. He currently
serves as a director, chief financial officer and chief compliance officer for
The Mexico Equity and Income Fund, Inc. (NYSE: MXE), and is a manager and
Chairman of the Audit Committee of the Old Mutual Absolute Return and Emerging
Managers fund complex, which consists of six funds, a director of Brantley
Capital Corporation and was a director and Chairman of the Audit Committee of
AirNet Systems, Inc. until June 2008.
Andrew Dakos (born 1966); Park 80 West, Plaza Two, Suite 750, Saddle Brook,
NJ 07663 Mr. Dakos is a self-employed investment advisor and a principal
of the general partner of six private investment partnerships in the Bulldog
Investors group of funds. He has been a director of the Mexico Equity and
Income Fund since 2001 and Brantley Capital Corporation since 2007.
Phillip Goldstein (born 1945); Park 80 West, Plaza Two, Suite 750, Saddle Brook
NJ 07663 Mr. Goldstein is an investment advisor and a principal of the general
partner of six investment partnerships in the Bulldog Investors group of funds.
He has been a director of the Mexico Equity and Income Fund since 2000,
Brantley Capital Corporation since 2001 and ASA Ltd since 2008.
Rajeev Das (born 1968); Park 80 West, Plaza Two, Suite 750, Saddle Brook,
NJ 07663 Mr. Das Principal of the Bulldog Investors group of funds and
Managing Member of the general partner of Opportunity Income Plus L.P.;
Director of Mexico Equity and Income Fund, Inc. (since 2001).
In 2006 he served as director of Brantley Capital Corporation.
Steven Samuels (born 1956); Park 80 West, Plaza Two, Suite 750, Saddle Brook,
NJ 07663 Mr. Samuels is a principal of the general partner of six investment
partnerships in the Bulldog Investors group of funds.
THE SOLICITATION
The SEC deems a nominee to be a participant in a solicitation. We believe
that is misleading since it suggests that the nominee has a greater role in a
solicitation than is the case. Nevertheless, using the SECs definition of
participant, no participant or associate of any participant in this
solicitation is or has been a party to any contract, arrangements or
understanding with any person with respect to any securities of TMI or has
any arrangement or understanding with any person with respect to future
employment by TMI or any of its affiliates or to any future transactions to
which TMI or any of its affiliates will or may be a party.
Persons affiliated with or employed by us or our affiliates may assist us
in the solicitation of consents. Banks, brokerage houses and other custodians,
nominees and fiduciaries will be requested to forward our solicitation material
to the beneficial owners of TMI shares for whom they hold such shares.
We will reimburse these organizations for their reasonable out-of-pocket
expenses. Initially, we will bear all of the expenses related to this consent
solicitation. Because we believe that TMI will benefit from this consent
solicitation, we intend to seek reimbursement of our expenses from TMI.
Shareholders will not be asked to vote on the reimbursement of our expenses
which we estimate will be $10,000.
UNRELATED LITIGATION
On January 31, 2007, the Acting Director of the Securities Division of the
Massachusetts Secretary of State (the Secretary) filed a complaint against
Opportunity Partners L.P. and certain related parties (the Bulldog Parties)
alleging that they violated Massachusetts law by making information about
certain unregistered securities available on the Bulldog Investors website
and by providing information about such investments to an individual who
requested it without first determining that the individual was eligible to
invest in such securities.
On October 17, 2007, the Secretary issued a cease and desist order and
imposed a fine of $25,000 on the Bulldog Parties which the Bulldog Parties
have appealed in Massachusetts Superior Court. That appeal is pending.
On March 23, 2007, the Bulldog Parties filed a lawsuit in Massachusetts
Superior Court to enjoin the aforementioned enforcement action on several
grounds including that it violates the Bulldog Parties right of free speech.
On March 25, 2008, the Bulldog Parties filed an amended complaint in
Massachusetts Superior Court to include a claim that the Secretary does not
have personal jurisdiction over them. A final judgment in that case has not
been reached.
Other Information
As of December 19, 2008, Opportunity Partners and affiliated entities
beneficially owned 2,316,050 common shares of TMI, all of which were purchased
since October 17, 2007.
Information regarding TMI, its directors, officers and large shareholders is
available in filings submitted by TMI with the SEC at www.sec.gov. In addition,
the board of TMI has indicated that it will send a counter-solicitation to
shareholders containing such information.
December 30, 2008
CONSENT CARD
This consent is in response to a consent statement dated December 30, 2008 by
Opportunity Partners L.P., a shareholder of TM Entertainment and Media, Inc.
(TMI)
I (we) am a shareholder of TMI. I (we) hereby consent to (1) adopt a bylaw to
take effect immediately to increase the size of the board from four to nine
directors, and (2) elect the following persons who, barring any material
changes in circumstances, are committed to distribute substantially all the
cash in the trust account and to leave TMI as a shell corporation with a
de minimus amount of cash, to fill the five open director seats thereby
created: Gerald Hellerman, Andrew Dakos, Phillip Goldstein, Rajeev Das and
Steven Samuels.
I (we) do not wish to withhold authority to elect any of the above named
persons except for the persons listed below:
___________________________________________________________________________
Please sign and date below.
Signature(s)__________________________________ Dated: _____________
Number of Shares Owned______________