- Amended Statement of Ownership: Private Transaction (SC 13E3/A)
April 06 2010 - 5:25PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(RULE 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 1)
OPTIMAL GROUP INC.
(Name of Subject Company (Issuer))
7293411 CANADA INC. (
OFFEROR
)
RICHARD YANOFSKY
(Names of Filing Persons)
Class A Shares
(Title of Class of Securities)
68388R208
(CUSIP Number of Class of Securities)
Richard Yanofsky
770 Sherbrooke Street West, Suite 1700
Montréal, Québec, H3A 1G1
514.738.2079
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
Charles R. Spector
Fraser Milner Casgrain LLP
1 Place Ville-Marie, 39th Floor
Montréal (Québec) H3B 4M7
(514) 878-8800
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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þ
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Check the box if any part of the fee is offset as provided by 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: $819
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Filing Party: 7293411 Canada Inc.
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Form or Registration No.: Schedule T0-T
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Date Filed: March 31, 2010
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o
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions to which the statement
relates:
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third-party tender offer subject to Rule 14d-1.
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o
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issuer tender offer subject to Rule 13e-4.
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þ
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going-private transaction subject to Rule 13e-3.
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o
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amendment to Schedule 13D under Rule 13d-2.
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Check the following box if the filing is a final amendment reporting the results of the tender
offer:
o
TENDER OFFER STATEMENT AND RULE 13E-3 TRANSACTION STATEMENT FILED
UNDER COVER OF SCHEDULE TO
This Amendment No. 1 amends and restates the Tender Offer Statement and Rule 13E-3 Transaction
Statement (this Schedule TO) filed on March 31, 2010 with the Securities and Exchange Commission
(SEC) and relates to the offer by 7293411 Canada Inc., a corporation incorporated under the laws
of Canada (Offeror), to purchase up to all the outstanding Class A shares (the Shares) of
Optimal Group Inc., a corporation incorporated under the laws of Canada (Optimal), 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 $2.40 per Share, on the
terms and subject to the conditions specified in the Offer to Purchase dated March 31, 2010 (the
Offer to Purchase) and the related Letter of Transmittal dated March 31, 2010, copies of which
are attached hereto as Exhibits (a)(1)(A) and (a)(1)(B) (which, together with any amendments or
supplements from time to time thereto, constitute the Offer). This Amendment No. 1 is being
filed on behalf of Offeror and Richard Yanofsky.
The information in the Offer to Purchase is incorporated herein by reference.
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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) Optimal 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.
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Item 3.
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Identity and Background of Filing Person.
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(a) through (c) Offeror and Richard Yanofsky are the filing persons. The information set forth in
the section of the Offer to Purchase entitled Circular Section 1 The Offeror 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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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 sections of the Offer to Purchase entitled
Circular Section 3 Background to the Offer and 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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(a) and (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.
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Item 7.
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Source and Amount 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.
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Item 8.
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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.
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(b) Not applicable.
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Item 9.
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Persons/Assets, Retained, Employed, Compensated or Used.
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(a) 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 10.
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Financial Statements.
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(a) Not material.
(b) Not material.
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Item 11.
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Additional Information.
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(a) The information set forth in the sections of the Offer to Purchase entitled Circular
Section 15 Regulatory Matters, Circular Section 18 Acquisition of Shares Not Tendered in
the Offer, Circular Section 19 Effect of the Offer on the Market for the Listing of Shares
and Status as a Reporting Issuer, Circular Section 22 Statutory Rights, and Circular
Section 25 Legal Matters is incorporated herein by reference.
The Shares are currently not margin securities under the regulations of the Board of Governors of
the Federal Reserve System, which regulations have the effect, among other things, of allowing
brokers to extend credit on the collateral of the Shares for the purpose of buying, carrying or
trading in securities (Purpose Loans). The factors considered in making such a determination
include the number of record holders of Shares and the number and market value of publicly held
Shares. Following the purchase of Shares pursuant to the Offer, the Shares will continue to not
constitute margin securities for purposes of the Federal Reserve Board of Governors margin
regulations, and, therefore, may not be used as collateral for Purpose Loans made by brokers.
(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 the Schedule TO, filed 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 the Schedule TO, filed March 31, 2010).
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(a)(1)(C)
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Notice of Guaranteed Delivery (incorporated by reference to the Schedule TO, filed 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
the Schedule TO, filed 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 the Schedule TO, filed March 31, 2010).
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(a)(2)
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Press Release issued by Optimal, dated March 17, 2010 (incorporated by reference to Exhibit 99.1 of the
Offerors Schedule TO-C filed 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 the Schedule TO, filed March 31, 2010).
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(d)(1)
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Support Agreement, dated March 17, 2010, between Optimal and the Offeror (incorporated by reference to Exhibit 2
of the Offerors Schedule 13D filed on March 23, 2010).
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3
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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 4 of the
Offerors Schedule 13D 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 3 of the Offerors Schedule 13D 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 Tung Ching, Francis Choi
and the Offeror (incorporated by reference to the Schedule TO, filed March 31, 2010).
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(g)
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None.
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(h)
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None.
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Item 13.
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Information Required by Schedule 13E-3.
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The following sets forth information required by Schedule 13E-3 that has not already been set forth
in Items 1 through 12 above. The information set forth in the Offer to Purchase is incorporated
herein by reference to the items required by Schedule 13E-3.
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Item 2.
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Subject Company Information.
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(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 4.
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Terms of the Transaction.
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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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(c) The information set forth in the sections of the Offer to Purchase entitled
Circular
Section 3 Background to the Offer and Circular Section 4 Agreements Relating 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 the 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)(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 Offer to Purchase entitled
Circular Section 3 Background to the Offer and Circular Section 5 Reasons to Accept
the Offer is incorporated herein by reference.
(d) The information set forth in the sections of the Offer to Purchase entitled Circular
Section 5 Reasons to Accept the Offer, 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 section of the Offer to Purchase entitled Circular
Section 5 Reasons to Accept the Offer is incorporated herein by reference.
(c) The Offer is not conditioned on receiving the approval of a majority of unaffiliated
shareholders of Optimal. 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.
(d) Offeror has not retained an unaffiliated representative for the purpose of representing
unaffiliated security holders in negotiating the terms of the Offer or preparing a report
concerning the fairness of the Offer. The information set forth in the section of the Offer to
Purchase entitled, Circular Section 3 Background to the Offer is incorporated herein by
reference.
(e) The Offer has been approved by a majority of the Directors of Optimal who are not employees of
Optimal. The information set forth in the section of the Offer to Purchase entitled, Circular
Section 3 Background to the Offer is incorporated herein by reference.
(f) The information set forth in the sections of the Offer to Purchase entitled Circular
Section 3 Background to the Offer and Circular Section 5 Reasons to Accept the Offer 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) Offeror has not received any report, opinion or appraisal from an outside party that is
materially related to the Offer. The information set forth in the sections of the Offer to Purchase
entitled Circular Section 3 Background to the Offer, Circular Section 5 Reasons to
Accept the Offer, Circular Section 16 Valuation and Circular Section 17 Fairness
Opinion is incorporated herein by reference.
(c) The information set forth in the sections of the Offer to Purchase entitled Circular
Section 16 Valuation and Circular Section 17 Fairness Opinion is incorporated herein by
reference.
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Item 10.
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Source and Amount of Funds or Other Consideration.
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(c) 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 12.
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The Solicitation or Recommendation.
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(d) As disclosed in the Directors Circular of Optimal filed on March 31, 2010 with the SEC on
Schedule 14D-9, the voting members of the Board of Directors of Optimal (consisting of Mr. Tommy
Boman, Mr. James S. Gertler, Mr. Jonathan J. Ginns, Mr. Henry M. Karp and Mr. Thomas D. Murphy)
have unanimously concluded that the consideration offered under the Offer is fair from a financial
point of view to Shareholders (other than the Offeror and its Joint Actors) and recommend that
Shareholders accept the Offer and tender their Shares to the Offer. Both Mr. Holden L. Ostrin and
Mr. Neil S. Wechsler formally declared their respective interests in and did not participate in
deliberations on, and abstained from voting in respect of resolutions relating to, the Offer.
(e) As disclosed in the Directors Circular of Optimal filed on March 31, 2010 with the SEC on
Schedule 14D-9, each of the Directors and officers of Optimal has indicated that, as at the date of
the Offer, he or she intends to accept the Offer and tender all of his or her Shares under the
Offer.
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Item 13.
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Financial Statements.
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(a)(1) The audited consolidated financial statements of Optimal as of and for the fiscal years
ended December 31, 2008 and December 31, 2009 are incorporated herein by reference to Optimals
Annual Report on Form 10-K for the year ended December 31, 2009.
5
(a)(2) The consolidated financial statements of Optimal as of and for the quarter ended December
31, 2009 are incorporated herein by reference to Optimals Annual Report on Form 10-K for the year
ended December 31, 2009.
(3) The information set forth in Annex A is incorporated herein by reference.
(4) The information set forth in Annex A 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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(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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Exhibit No.
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Description
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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
Optimal dated March 16, 2010 (incorporated by
reference to the Schedule TO, filed 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 the Schedule TO, filed March 31,
2010).
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(f)(1)
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Sections 206 to 206.1 of the Canada
Business Corporations Act (incorporated by
reference to the Schedule TO, filed March 31,
2010).
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7
SIGNATURES
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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7293411 CANADA INC.
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/s/ Richard Yanofsky
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By: Richard Yanofsky
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Title:
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President
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Date: April 6, 2010
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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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/s/ Richard Yanofsky
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Richard Yanofsky
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Date: April 6, 2010
9
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 the Schedule TO, filed 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 the Schedule TO, filed March 31, 2010).
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(a)(1)(C)
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Notice of Guaranteed Delivery (incorporated by reference to the Schedule TO, filed 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
the Schedule TO, filed 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 the Schedule TO, filed March 31, 2010).
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(a)(2)
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Press Release issued by Optimal, dated March 17, 2010 (incorporated by reference to Exhibit 99.1 of the
Offerors Schedule TO-C filed 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 the Schedule TO, filed 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 Optimal dated March 16,
2010 (incorporated by reference to the Schedule TO, filed 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 the Schedule
TO, filed March 31, 2010).
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(d)(1)
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Support Agreement, dated March 17, 2010, between Optimal and the Offeror (incorporated by reference to Exhibit 2
of the Offerors Schedule 13D 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 4 of the
Offerors Schedule 13D 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 3 of the Offerors Schedule 13D 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 Tung Ching, Francis Choi
and the Offeror (incorporated by reference to the Schedule TO, filed March 31, 2010).
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(f)(1)
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Sections 206 to 206.1 of the Canada Business Corporations Act (incorporated by reference to the Schedule TO,
filed March 31, 2010).
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(g)
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None.
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(h)
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None.
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10
ANNEX A
Certain Financial Information of Optimal
Ratio of earnings to fixed charges
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2008:
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167.52
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2009:
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137.91
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Book Value Per Share
$4.22
11
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