JOINT BID AGREEMENT
Exhibit (e)(4)
THIS JOINT BID AGREEMENT (this “Agreement”) dated as of March 31, 2010 by and among Xxxxx Xxxxxxxx
(“PY”), Xxxxxxx Xxxxxxxx (“RY”), Xxxx Xxx (“EL”) and Xxxx Xxxx Ming, also known as Xxxxxxx Xxxx,
(“FC”) and 7293411 Canada Inc. (“Bidco”) and, together with PY, RY, EL, FC, the “Parties”).
WHEREAS the Parties, through Bidco, wish to make an offer (the “Offer”) by way of take over bid to
the shareholders of Optimal Group Inc. (the “Company”) to purchase all the outstanding class “A”
shares of the Company (the “Shares”), including Shares issuable upon the conversion, exchange or
exercise of options or warrants (the “Warrants”);
WHEREAS the Company and Bidco have entered into a support agreement (“the Support Agreement”) dated
March 16, 2010 regarding the Offer;
WHEREAS the Parties wish to set out certain terms and conditions under which they, as a group,
agree to make the Offer; and
WHEREAS the Parties had previously executed a deed of guarantee and indemnity dated February 24,
2010 (the “Indemnity Agreement”) wherein PY, RY and EL agreed, under the terms and conditions set
forth therein, to indemnify and hold FC harmless for all claims, losses, obligations and
liabilities suffered or incurred by FC in connection with the loan made by FC to Bidco, up to an
aggregate amount of US$7,500,000.
NOW THEREFORE for good and valuable consideration, the Parties agree as follows:
| 1. | Cooperation and Consultation |
The Parties will cooperate and consult with each other with a view to the initiation and successful
completion of a take-over bid to acquire of the Shares, followed by a second-step transaction to
acquire any Shares not tendered to the Offer, or such other form of transaction by which such
acquisition may be effected (the “Proposed Acquisition”). All decisions with respect to the conduct
of the Proposed Acquisition, including the terms and conditions of the Offer, acquisition price,
other shareholders to be contacted or to be offered equity interests in Bidco, any action of Bidco
up to the time of completion of the Proposed Acquisition (including any second step transaction),
any agreement entered into with the Company or with other shareholders, choice of financial and
legal advisors, agreements relating to the loan, the conduct of the Offer (including any variation
or waiver of any of the terms or conditions of the Offer) and completion of the Proposed
Acquisition, will be made by Bidco. The Parties acknowledge and agree that as of the date hereof,
RY is the sole officer and director of Bidco and any decisions regarding the Proposed Acquisition
will be vested with RY after due consultation with the other Parties. To the extent that any of the
arrangements or commitments provided for herein require regulatory relief or approval under
applicable laws in connection with making the Offer, such arrangements will be conditional upon
obtaining such regulatory relief or approval and the Parties will use commercially reasonable
efforts to obtain such regulatory relief or approval as soon as practicable.
| 2. | The Offer |
Concurrently with the execution of this Agreement and pursuant to the Support Agreement, Bidco will
make the Offer to purchase the Shares at a price of US $2.40 per Share, in the form and subject to
the terms and conditions set forth in the Support Agreement. Bidco will proceed to file and mail to
shareholders the Offer and circular as soon as practicable. The Parties acknowledge that the Offer
is based solely on publicly available information concerning the Company.
| 3. | Source of Funds |
The Parties acknowledge and agree that the cash required to complete the Proposed Acquisition and
to pay related expenses will be funded with a US$15 million loan pursuant to the terms and
conditions of a loan agreement dated February 24, 2010 by and among Bidco and FC (the “Loan
Agreement”).
| 4. | Contributions |
The following equity contributions will be made to the share capital of Bidco (the “Bidco Shares”)
in connection with the Proposed Acquisition:
| (a) | PY will contribute or cause to be contributed to Bidco, immediately prior to the first take-up of Shares under the Offer and subject to satisfaction or waiver of the conditions to the take-up of Shares under the Offer, 97,926 Shares and 37,392 Warrants, free and clear of all liens and encumbrances, in exchange for 167,000 Bidco Shares; | |
| (b) | RY will contribute or cause to be contributed to Bidco, immediately prior to the first take-up of Shares under the Offer and subject to satisfaction or waiver of the conditions to the take-up of Shares under the Offer, 104,926 Shares and 37,392 Warrants, free and clear of all liens and encumbrances, in exchange for 166,000 Bidco Shares; | |
| (c) | EL will contribute or cause to be contributed to Bidco, immediately prior to the first take-up of Shares under the Offer and subject to satisfaction or waiver of the conditions to the take-up of Shares under the Offer, 30,924 Shares and 11,808 Warrants, free and clear of all liens and encumbrances, in exchange for 167,000 Bidco Shares; and | |
| (d) | FC will contribute or cause to be contributed to Bidco, immediately prior to the first take-up of Shares under the Offer and subject to satisfaction or waiver of the conditions to the take-up of Shares under the Offer, 171,800 Shares and 65,600 Warrants, free and clear of all liens and encumbrances, in exchange for 500,000 Bidco Shares. |
The Parties acknowledge and agree that based on various tax and other considerations, the
contributions set forth above may be made directly or indirectly to Bidco using a holding company
or other investment vehicle.
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| 5. | Post-Closing Arrangements |
Prior to or concurrently with the completion of the Proposed Acquisition the Parties will consider
entering into a shareholders agreement (the “Shareholders Agreement”) containing provisions for the
post-completion governance of Bidco and other arrangements relating to the ownership of Bidco
Shares after completion of the Proposed Acquisition. In the event that agreement is not finalized
and entered into by the time of completion of the Proposed Acquisition, the Parties will
nonetheless govern themselves to the greatest extent possible as they have in the past.
| 6. | Public Announcements |
All public announcements made in connection with the Proposed Acquisition will be made by Bidco.
| 7. | Termination |
This Agreement will terminate if (a) a formal take-over bid to effect the Proposed Acquisition is
not made by Bidco by [April 10], 2010; or (b) an acquisition proposal for the Company is made by
another party which Bidco is not prepared to match. Upon any such termination, the Parties will be
under no further obligations hereunder.
| 8. | General |
No person (including the Company), other than the Parties and their respective successors and
permitted assigns, have any rights hereunder. This Agreement will be governed by the laws of the
Province of Québec. This Agreement supersedes any prior discussions, understandings or agreements
between the Parties with respect to the subject matter hereof. Unless otherwise stated, all dollar
amounts in this Agreement are in dollars of the United States. This Agreement may not be assigned
by any Party without the written consent of the other Party hereto. This Agreement may only be
amended by written agreement signed by all of the Parties. The Parties hereto confirm their express
wish that this Agreement and all documents and agreements directly or indirectly relating thereto
be drawn up in the English language. Les parties reconnaissent leur volonté expresse que la
présente entente ainsi que tous les documents et contrats s’y rattachant directement ou
indirectement soient rédigés en anglais. The parties hereby agree to elect to have any court
proceedings (other than witness testimony) relating to this Agreement conducted in the English
language.
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DATED this 31st day of March 2010.
| Signed “Xxxxx Xxxxxxxx”
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Signed “Xxxxxxx Xxxxxxxx”
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| Signed “Xxxx Xxx”
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Signed “Xxxxxxx Xxxx”
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| XXXX XXX | XXXX XXXX MING, also known as, Xxxxxxx Xxxx | |||||||
| 7293411 CANADA INC. | ||||||||
By: |
Signed “Xxxxxxx Xxxxxxxx” | |||||||
Name:
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Position:
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President |
