- Statement of Ownership: Private Transaction (SC 13E3)
06 Aprile 2010 - 11:24PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13E-3
RULE 13E-3 TRANSACTION STATEMENT UNDER SECTION 13(e)
OF THE SECURITIES EXCHANGE ACT OF 1934
Optimal Group Inc.
(Name of Subject Company)
Optimal Group Inc.
(Name of Person(s) Filing Statement)
Class A shares
(Title of Class of Securities)
68388R208
(CUSIP Number of Class of Securities)
Leon P. Garfinkle
Senior Vice-President, General Counsel and Secretary
Optimal Group Inc.
3500 de Maisonneuve Blvd. West, Suite 800,
Montreal, Quebec, Canada, H3Z 3C1
(514) 738-8885
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications on Behalf of the Person(s) Filing Statement)
Copies to:
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Warren M. Katz, Esq.
Stikeman Elliott LLP
1155 René-Lévesque Blvd. West, 40th Floor
Montréal, Québec H3B 3V2
(514) 397-3000
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Jason J. Comerford, Esq.
Osler, Hoskin & Harcourt LLP
620 8
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Avenue, 36
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Floor
New York, New York 10036
(212)867-5800
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This statement is filed in connection with (check the appropriate box):
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a.
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¨
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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.
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b.
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¨
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The filing of a registration statement under the Securities Act of 1933.
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c.
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ý
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A tender offer.
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d.
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¨
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None of the above.
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Check the following box if the soliciting materials or information statement referred to in
checking box (a) are preliminary copies:
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Check the following box if the filing is a final amendment reporting the results of the
transaction:
¨
CALCULATION OF FILING FEE
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Transaction Valuation
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Amount of Filing Fee
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$11,477,681(1)
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$819(2)
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(1)
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Estimated solely for purpose of calculating the amount of the filing fee in accordance with
the Securities Exchange Act of 1934 based on the product of (i) $2.40 (i.e., the tender offer
price) and (ii) 4,782,367, the maximum number of Class A shares of Optimal Group Inc. that
may be tendered pursuant to the tender offer. Such number of Shares represents the 5,148,735
Shares outstanding as of March 17, 2010 and 191,400 shares of Optimal Group Inc. Class A shares
issuable upon the exercise of outstanding options and warrants, less the 405,576 Class
A shares and 152,192 shares issuable upon the exercise of warrants already beneficially
owned by 7293411 Canada Inc., its joint actors and its affiliates and associates.
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(2)
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The amount of the filing fee calculated in accordance with the Securities Exchange Act of
1934, as amended, equals $71.30 for each $1,000,000 of value. The filing fee was calculated in
accordance with Rule 0-11 under the Securities Exchange Act of 1934 and Fee Rate Advisory #3
for Fiscal Year 2010, issued October 30, 2009.
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Check the box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2)
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.
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Amount Previously Paid:
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$819
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Filing Party:
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7293411 Canada Inc.
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Form or Registration No.:
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Schedule TO-T
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Date Filed:
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March 31, 2010
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This Schedule 13E-3 Transaction Statement (this
Transaction Statement) is filed with the Securities and
Exchange Commission on
behalf Optimal Group Inc. (the Company), a company organized under the laws of Canada, and
relates to the offer made by 7293411 Canada Inc. (the Offeror), a corporation established by Mr.
Richard Yanofsky, President of WowWee Canada Inc., disclosed in the Tender Offer Statement and Rule
13E-3 Transaction Statement on Schedule TO filed by the Offeror, Richard Yanofsky and the Company
with the Securities and Exchange Commission (SEC) on March 31, 2010 (as amended from time to
time, the Schedule TO), to purchase all of the outstanding Class A shares of the Company (the
Shares) not currently owned by Offeror and its joint actors, including Shares that may become
outstanding on the conversion, exchange or exercise of options or warrants, at a price of US$2.40
per Share, subject to the terms and conditions set forth in the Offer to Purchase, dated March 31,
2010 (the Offer to Purchase) that is incorporated by reference into the Schedule TO. This
Transaction Statement is being filed on behalf of the Company
separately from the Schedule TO filed on March 31, 2010 so as to
clarify that the Company is a filing person for the purposes of
Schedule 13E-3 only, and not Schedule TO.
The Offer to Purchase and the related Letter of Transmittal together with any amendments or
supplements thereto constitute the Offer. Copies of the Offer to Purchase and the Letter of
Transmittal are attached as Exhibits (a)(1)(A) and (a)(1)(B), respectively, to this Transaction
Statement and as exhibits to the Schedule TO and are being furnished to the Companys shareholders.
On March 31, 2010, the Company filed a Schedule 14D-9 Solicitation and Recommendation Statement (as
amended from time to time, the Schedule 14D-9) with the SEC in response to the Schedule TO,
including the Directors Circular, which is attached hereto as Exhibit (a)(2)(A) (the Directors
Circular). The information set forth in the Schedule 14D-9, including all exhibits and amendments
thereto, is incorporated herein by reference, and the responses to each Item in this Transaction
Statement are qualified in their entirety by the information contained in the Schedule 14D-9 and
the exhibits thereto.
The cross references below are being supplied pursuant to General Instruction G to Schedule 13E-3.
All information contained in this Transaction Statement concerning the Company, the Offeror and
Richard Yanofsky has been provided by such person and not by any other person.
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Item 1.
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Summary Term Sheet.
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The information set forth in the section of the Offer to Purchase entitled Summary is
incorporated herein by reference.
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Item 2.
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Subject Company Information.
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(a) The Company, Optimal Group Inc., is the subject company. The information set forth in the
section of the Offer to Purchase entitled Circular Section 2 Optimal is incorporated herein
by reference.
(b) and (c) The information set forth in the section of the Offer to Purchase entitled Circular
Section 12 Information Concerning the Shares is incorporated herein by reference.
(d) The information set forth in the section of the Offer to Purchase entitled Circular Section
13 Dividends and Dividend Policy is incorporated herein by reference.
(e) Not applicable.
(f) Not applicable.
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Item 3.
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Identity and Background of Filing Person.
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(a) through (c) Optimal Group Inc., the subject company, is the filing person. The information set
forth in Annex A hereto and in the section of the Offer to Purchase entitled Circular Section 2
Optimal is incorporated herein by reference.
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Item 4.
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Terms of the Transaction.
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(a) The information set forth in the Offer to Purchase is incorporated herein by reference.
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(c) Not applicable.
(d) The information set forth in the section of the Offer to Purchase entitled Circular Section
18 Acquisition of Shares Not Tendered in the Offer is incorporated herein by reference.
(e) The information set forth in the section of the Offer to Purchase entitled Circular Section
9 Arrangements, Agreements or Understandings is incorporated herein by reference.
(f) Not applicable.
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Item 5.
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Past Contracts, Transactions, Negotiations and Agreements.
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(a) and (b) The information set forth in the section of the Offer to Purchase entitled Circular
Section 4 Agreements Relating to the Offer and in the section of the Directors Circular
entitled Background to the Offer is incorporated herein by reference.
(c) The information set forth in the section of the Offer to Purchase entitled Circular Section
4 Agreements Relating to the Offer and in the section of the Directors Circular entitled
Background to the Offer is incorporated herein by reference.
(e) The information set forth in the section of the Offer to Purchase entitled Circular Section
4 Agreements Relating to the Offer is incorporated herein by reference.
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Item 6.
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Purposes of Transaction and Plans or Proposals.
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(b) The information set forth in the section of the Offer to Purchase entitled Circular Section
6 Purpose of the Offer and the Offerors Plans for Optimal is incorporated herein by reference.
(c)(1) through (7) The information set forth in the sections of the Offer to Purchase entitled
Circular Section 6 Purpose of the Offer and the Offerors Plans for Optimal and Circular Section 18 Acquisition of Shares Not Tendered in the Offer is incorporated herein by
reference.
(c)(8) The information set forth in the sections of the Offer to Purchase entitled Circular
Section 12 Information Concerning the Shares and Circular Section 19 Effect of the Offer
on the Market for the Listing of Shares and Status as a Reporting Issuer is incorporated herein by
reference.
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Item 7.
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Purposes, Alternatives, Reasons and Effects.
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(a) through (c) The information set forth in the sections of the Directors Circular entitled
Background to the Offer Recommendation of the Special Committee and Recommendation of the
Board of Directors is incorporated herein by reference.
(d) The information set forth in the sections of the Directors Circular entitled Recommendation
of the Special Committee and Recommendation of the Board of Directors and in the sections of the
Offer to Purchase entitled Circular Section 19 Effect of the Offer on the Market for the
Listing of Shares and Status as a Reporting Issuer, Circular Section 20 Certain Canadian
Federal Income Tax Considerations and Circular Section 21 Certain U.S. Federal Income Tax
Considerations is incorporated herein by reference.
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Item 8.
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Fairness of the Transaction.
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(a) and (b) The information set forth in the sections of the Directors Circular entitled
Recommendation of the Special Committee and Recommendation of the Board of Directors is
incorporated herein by reference.
(c) The Offer is not conditioned on receiving the approval of a majority of unaffiliated
shareholders of the Company. The information set forth in the section of the Offer to Purchase
entitled The Offer Section 4 Conditions of the Offer is incorporated herein by reference.
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(d) The information set forth in the section of the Directors Circular entitled Background to the
Offer is incorporated herein by reference.
(e) The Offer has been approved by a majority of the directors of the Company who are not employees
of the Company. The information set forth in the sections of the Directors Circular entitled
Background to the Offer, Recommendation of the Special Committee and Recommendation of the
Board of Directors is incorporated herein by reference.
(f) The information set forth in the sections of the Directors Circular entitled Background to
the Offer, Recommendation of the Special Committee and Recommendation of the Board of
Directors is incorporated herein by reference.
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Item 9.
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Reports, Opinions, Appraisals and Negotiations.
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(a) and (b) The Company has received a report, opinion or appraisal from an outside party that is
materially related to the Offer. The information set forth in the sections of the Directors
Circular entitled Background to the Offer, Recommendation of the Special Committee,
Recommendation of the Board of Directors, Summary of Valuation and Fairness Opinion, and
Schedule A Fairness Opinion is incorporated herein by reference.
(c) The information set forth in the sections of the Directors Circular entitled Summary of
Valuation and Fairness Opinion, and Schedule A Fairness Opinion is incorporated herein by
reference.
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Item 10.
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Source and Amounts of Funds or Other Consideration.
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(a), (b) and (d) The information set forth in the section of the Offer to Purchase entitled
Circular Section 11 Source of Funds is incorporated herein by reference.
(c) The
information set forth in Annex B hereto and in the section of the Offer to Purchase entitled
Circular Section 24 Expenses of the Offer is incorporated herein by reference.
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Item 11.
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Interest in Securities of the Subject Company.
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(a) The information set forth in the section of the Offer to Purchase entitled Circular Section
1 The Offeror is incorporated herein by reference.
The information set forth in the section of the Directors Circular entitled Ownership of
Securities of Optimal is incorporated herein by reference.
(b) Not applicable.
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Item 12.
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The Solicitation or Recommendation.
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(d) and (e) The information set forth in the sections of the Directors Circular entitled
Recommendation of the Special Committee, Recommendation of the Board of Directors and
Intentions with Respect to the Offer is incorporated herein by reference.
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Item 13.
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Financial Statements.
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(a)(1) and
(2) The audited consolidated financial statements of the Company as of and for the fiscal years
ended December 31, 2008 and December 31, 2009 are incorporated herein by reference to the Companys
Annual Report on Form 10-K for the year ended December 31, 2009.
(3) The
information set forth in Annex C hereto is incorporated herein by reference.
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(4) The
information set forth in Annex C hereto is incorporated herein by reference.
(b) Not material.
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Item 14.
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Persons/Assets, Retained, Employed, Compensated or Used.
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(a) and (b) The information set forth in the section of the Offer to Purchase entitled Circular
Section 24 Expenses of the Offer is incorporated herein by reference.
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Item 15.
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Additional Information.
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(b) The information set forth in the Offer to Purchase is incorporated herein by reference.
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Exhibit No.
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Description
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(a)(1)(A)
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Offer to Purchase, dated March 31, 2010 (incorporated by
reference to Exhibit (a)(1)(A) of the Schedule TO filed by
the Offeror, the Company and Richard Yanofsky on March 31,
2010).
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(a)(1)(B)
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Letter of Transmittal, dated March 31, 2010 (incorporated
by reference to Exhibit (a)(1)(B) of the Schedule TO filed
by the Offeror, the Company and Richard Yanofsky on March
31, 2010).
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(a)(1)(C)
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Notice of Guaranteed Delivery (incorporated by reference
to Exhibit (a)(1)(C) of the Schedule TO filed by the
Offeror, the Company and Richard Yanofsky on March 31,
2010).
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(a)(1)(D)
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Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees (incorporated by reference to
Exhibit (a)(1)(D) of the Schedule TO filed by the Offeror,
the Company and Richard Yanofsky on March 31, 2010).
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(a)(1)(E)
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Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees (incorporated by
reference to Exhibit (a)(1)(E) of the Schedule TO filed by
the Offeror, the Company and Richard Yanofsky on March 31,
2010).
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(a)(2)(A)
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Directors Circular, dated March 31, 2010 (incorporated by
reference to Exhibit (a)(1) of the Schedule 14D-9 filed by
the Company on March 31, 2010).
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(a)(2)(B)
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Press Release issued by the Company, dated March 17, 2010
(incorporated by reference to Exhibit 99.1 of the Schedule
TO-C filed by the Offeror and the Company on March 17,
2010).
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(b)(1)
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Loan Agreement, dated February 24, 2010, by and among
Francis Choi and the Offeror (incorporated by reference to
Exhibit 1 of the Offerors Schedule 13D filed on March 23,
2010).
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(b)(2)
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Deed of Guarantee and Indemnity, dated February 24, 2010,
by Peter Yanofsky, Richard Yanofsky and Eric Lau Tung
Ching in favour of Francis Choi (incorporated by reference
to Exhibit (b)(2) of the Schedule TO filed by the Offeror,
the Company and Richard Yanofsky on March 31, 2010).
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(c)(1)
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Opinion of Genuity Capital Markets to the Special
Committee of the Board of Directors of the Company dated
March 16, 2010 (incorporated by reference to Exhibit
(c)(1) of the Schedule TO filed by the Offeror, the
Company and Richard Yanofsky on March 31, 2010).
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(c)(2)
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Valuation Report of PricewaterhouseCoopers LLP, dated
March 12, 2010 (incorporated by reference to Exhibit
(c)(2) of the Schedule TO filed by the Offeror, the
Company and Richard Yanofsky on March 31, 2010).
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(d)(1)
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Support Agreement, dated March 16, 2010, between the
Company and the Offeror (incorporated by reference to
Exhibit 2.1 of the Companys Form 8-K filed on March 23,
2010).
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Exhibit No.
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Description
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(d)(2)
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Disclosure Letter for Support Agreement dated March 16,
2010 (incorporated by reference to Exhibit 2.2 of the
Companys Form 8-K filed on March 23, 2010).
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(d)(3)
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Settlement Agreement, dated March 17, 2010, among Holden L
Ostrin, Neil Wechsler, Gary Wechsler and the Offeror
(incorporated by reference to Exhibit 10.1 of the
Companys Form 8-K filed on March 23, 2010).
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(d)(4)
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Joint Bid Agreement, dated March 31, 2010, among Peter
Yanofsky, Richard Yanofsky, Eric Lau, Francis Choi and the
Offeror (incorporated by reference to Exhibit (e)(4) of
the Schedule TO filed by the Offeror, the Company and
Richard Yanofsky on March 31, 2010).
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(f)
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Sections 206 to 206.1 of the Canada Business Corporations
Act (incorporated by reference to Exhibit (f)(1) of the
Schedule TO filed by the Offeror, the Company and Richard
Yanofsky on March 31, 2010).
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(g)
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Not applicable.
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6
SIGNATURE
After due 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.
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OPTIMAL GROUP INC.
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/s/ Gary S. Wechsler
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By:
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Gary S. Wechsler
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Title:
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Treasurer and Chief Financial Officer
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Date: April 6, 2010
7
EXHIBIT INDEX
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Exhibit No.
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Description
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(a)(1)(A)
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Offer to Purchase, dated March 31, 2010 (incorporated by
reference to Exhibit (a)(1)(A) of the Schedule TO filed by
the Offeror, the Company and Richard Yanofsky on March 31,
2010).
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(a)(1)(B)
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Letter of Transmittal, dated March 31, 2010 (incorporated
by reference to Exhibit (a)(1)(B) of the Schedule TO filed
by the Offeror, the Company and Richard Yanofsky on March
31, 2010).
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(a)(1)(C)
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Notice of Guaranteed Delivery (incorporated by reference
to Exhibit (a)(1)(C) of the Schedule TO filed by the
Offeror, the Company and Richard Yanofsky on March 31,
2010).
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(a)(1)(D)
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Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees (incorporated by reference to
Exhibit (a)(1)(D) of the Schedule TO filed by the Offeror,
the Company and Richard Yanofsky on March 31, 2010).
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(a)(1)(E)
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Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees (incorporated by
reference to Exhibit (a)(1)(E) of the Schedule TO filed by
the Offeror, the Company and Richard Yanofsky on March 31,
2010).
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(a)(2)(A)
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Directors Circular, dated March 31, 2010 (incorporated by
reference to Exhibit (a)(1) of the Schedule 14D-9 filed by
the Company on March 31, 2010).
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(a)(2)(B)
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Press Release issued by the Company, dated March 17, 2010
(incorporated by reference to Exhibit 99.1 of the Schedule
TO-C filed by the Offeror and the Company on March 17,
2010).
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(b)(1)
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Loan Agreement, dated February 24, 2010, by and among
Francis Choi and the Offeror (incorporated by reference to
Exhibit 1 of the Offerors Schedule 13D filed on March 23,
2010).
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(b)(2)
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Deed of Guarantee and Indemnity, dated February 24, 2010,
by Peter Yanofsky, Richard Yanofsky and Eric Lau Tung
Ching in favour of Francis Choi (incorporated by reference
to Exhibit (b)(2) of the Schedule TO filed by the Offeror,
the Company and Richard Yanofsky on March 31, 2010).
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(c)(1)
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Opinion of Genuity Capital Markets to the Special
Committee of the Board of Directors of the Company dated
March 16, 2010 (incorporated by reference to Exhibit
(c)(1) of the Schedule TO filed by the Offeror, the
Company and Richard Yanofsky on March 31, 2010).
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(c)(2)
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Valuation Report of PricewaterhouseCoopers LLP, dated
March 12, 2010 (incorporated by reference to Exhibit
(c)(2) of the Schedule TO filed by the Offeror, the
Company and Richard Yanofsky on March 31, 2010).
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(d)(1)
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Support Agreement, dated March 16, 2010, between the
Company and the Offeror (incorporated by reference to
Exhibit 2.1 of the Companys Form 8-K filed on March 23,
2010).
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(d)(2)
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Disclosure Letter for Support Agreement dated March 16,
2010 (incorporated by reference to Exhibit 2.2 of the
Companys Form 8-K filed on March 23, 2010).
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(d)(3)
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Settlement Agreement, dated March 17, 2010, among Holden L
Ostrin, Neil Wechsler, Gary Wechsler and the Offeror
(incorporated by reference to Exhibit 10.1 of the
Companys Form 8-K filed on March 23, 2010).
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(d)(4)
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Joint Bid Agreement, dated March 31, 2010, among Peter
Yanofsky, Richard Yanofsky, Eric Lau, Francis Choi and the
Offeror (incorporated by reference to Exhibit (e)(4) of
the Schedule TO filed by the Offeror, the Company and
Richard Yanofsky on March 31, 2010).
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(f)
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Sections 206 to 206.1 of the Canada Business Corporations
Act (incorporated by reference to Exhibit (f)(1) of the
Schedule TO filed by the Offeror, the Company and Richard
Yanofsky on March 31, 2010).
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(g)
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Not applicable.
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8
ANNEX A
Directors and Executive Officers of Optimal
Set forth in the table below are the names, the present principal occupations or employment
and the name, principal business and address of any corporation or other organization in which such
occupation or employment is conducted, and the five-year employment history of each of the
directors and executive officers of Optimal. None of these persons has been convicted in a criminal
proceeding during the past five years (excluding traffic violations or similar misdemeanors), nor
has any of these persons been a party to any judicial or administrative proceeding during the past
five years (except for matters that were dismissed without sanction or settlement) that resulted in
a judgment, decree or final order enjoining the person from future violations of, or prohibiting
activities subject to, federal or state securities laws or a finding of any violation of federal or
state securities laws. Each executive officer of Optimal has been employed in such position or in
other executive or management positions with Optimal for at least five years. Unless otherwise
noted, each person identified below is a Canadian citizen. Unless otherwise indicated, the business
address and telephone number of each person identified below as a director or executive officer of
Optimal is Optimal Group Inc., 3500 de Maisonneuve Blvd. West, Suite 800, Montréal, Québec, H3Z
3C1, telephone number is (514) 738- 8885.
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Material Positions
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Name
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Principle Occupation
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Held During the Last Five Years
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Neil S. Wechsler,* 43
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Co-Chairman and Chief Executive
Officer Optimal
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Mr. Wechsler has been an executive officer of Optimal since June 1995 and held other positions within Optimal since 1994.
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Holden L. Ostrin,* 50
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Co-Chairman Optimal
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Mr. Ostrin has been an executive officer of Optimal since June 1996.
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Henry M. Karp,* 55
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Director
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Mr. Karp was the President and Chief Operating Officer of Optimal from June 1999 through December 2005.
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James S. Gertler,* 43
United States citizen
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Managing member of Independent
Outdoor Advertising, LLC
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Mr. Gertler is a managing member of Independent Outdoor Advertising, LLC, an outdoor media company in the United States
and is a principal of the general partner of Signal International, an offshore rig repair, maintenance, upgrade and
conversion company in the Gulf of Mexico.
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Thomas D. Murphy,* 56
United States citizen
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President Peak Tech Consulting
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Mr. Murphy is the President of Peak Tech Consulting, a firm that specializes in information technology management and
related benefit realization.
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Jonathan J. Ginns,* 45
United States citizen
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Managing Partner ACON Investments
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Mr. Ginns has been Managing Partner of ACON Investments, a Washington, D.C.-based private equity investment firm since
1996. Since 2004, he has served as a director of Mariner Energy, Inc.
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Tommy Boman,* 71
United States citizen
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Former Vice-Chairman of IMS
International and President and
Chief Executive Officer of IMS
America
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Mr. Boman served as a director of Terra Payments Inc. from March 2003 until April 2004. Prior to 1998, Mr. Boman was
Vice-Chairman of IMS International and President and Chief Executive Officer of IMS America, a market research company
for the pharmaceutical and healthcare industries.
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Gary S. Wechsler,
C.A., 52
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Treasurer and Chief Financial
Officer Optimal
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Mr. Wechsler, has been Treasurer and Chief Financial Officer of Optimal since May 1994.
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O. Bradley McKenna,
C.A., 60
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Vice-President, Administration
and Human Resources Optimal
Group Inc.
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Mr. McKenna, has been the Vice-President, Administration and Human Resources of Optimal since June 1999 and held other
positions within Optimal since 1994.
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*
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denotes Director of Optimal.
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9
ANNEX B
The following is an estimate of the fees and expenses to be incurred by Optimal:
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Financial Advisory Fees and Expenses
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$
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450,000
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Legal Fees and Expenses
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550,000
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Printing, Filing and Mailing Costs
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15,000
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Miscellaneous
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75,000
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Total
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$
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1,090,000
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|
|
|
|
|
10
ANNEX C
Certain Financial Information of Optimal
Ratio of earnings to fixed charges
2008: -167.52
2009: -137.91
Book Value Per Share
$4.22
11
Grafico Azioni Optimal (NASDAQ:OPMR)
Storico
Da Ago 2024 a Set 2024
Grafico Azioni Optimal (NASDAQ:OPMR)
Storico
Da Set 2023 a Set 2024