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
(AMENDMENT NO. 3)
PDS GAMING CORPORATION
(Name of the Issuer)
| PDS Gaming Corporation PDS Holding Co., Inc. PDS Acquisition Sub, LLC | Johan P. Finley Lona M. B. Finley Peter D. Cleary | |
| (Names of Persons Filing Statement) | ||
Common Stock, $.01 par value
(Title of Class of Securities)
69329T105
(CUSIP Number of Class of Securities)
Johan P. Finley
PDS Gaming Corporation
6171 McLeod Drive
Las Vegas, Nevada 89120
(702) 736-0700
(Name, Address, and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Persons Filing Statement)
Copies to:
| Bryan Cave LLP Brian A. Sullivan, Esq. 120 Broadway Suite 300 Santa Monica, California 90401 (310) 576-2100 | Dorsey & Whitney LLP Kathleen Prudhomme, Esq. 50 South Sixth Street Suite 1500 Minneapolis, Minnesota 55402 (612) 340-2600 |
This statement is filed in connection with (check the appropriate box):
Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: o
Check the following box if the filing is a final amendment reporting the results of the transaction: o
Calculation of Filing Fee
| Transaction valuation* | Amount of filing fee** | |
|---|---|---|
| $7,549,145 | $956.48 |
| Amount Previously Paid: | $956.48 | |
| Form or Registration No.: | Schedule 13E-3-Rule 13E-3 Transaction Statement | |
| Filing Party: | PDS Gaming Corporation | |
| Date Filed: | June 10, 2004 |
This Amendment No. 3 to Rule 13e-3 Transaction Statement on Schedule 13E-3 (the "Amended Schedule 13E-3") is being filed by PDS Gaming Corporation, a Minnesota corporation (the "Company") and the issuer of the equity securities which are the subject of a Rule 13e-3 transaction, PDS Holding Co., Inc., a Nevada corporation ("PDSH"), PDS Acquisition Sub, LLC, a Nevada limited liability company wholly owned by PDSH ("PDSA"), Johan P. Finley, Lona M. B. Finley and Peter D. Cleary. This Amended Schedule 13E-3 relates to the Agreement and Plan of Merger, dated as of April 14, 2004 (the "Merger Agreement"), by and among the Company, PDSH and PDSA, pursuant to which PDSA will be merged (the "Merger") with and into the Company, with the Company as the surviving corporation.
Under the terms and subject to the conditions of the Merger Agreement, (a) each outstanding share of the Company's common stock, $.01 par value per share, other than shares held by PDSH, will be converted into the right to receive, without interest, and less applicable withholding taxes, if any, (i) cash in the amount of $1.25 upon the consummation of the Merger, and (ii) a nontransferable deferred payment right representing the right to receive $0.50 (subject to a specified present value discount in the event of prepayment by the Company) on each of the first three anniversaries of such consummation; and (b) each outstanding option to acquire a share of the Company's common stock having an exercise price less than $2.61 will be converted into the right to receive an amount equal to $2.61 minus the exercise price of said option.
Concurrently with the filing of this Amended Schedule 13E-3, the Company is filing with the Securities and Exchange Commission (the "SEC") a definitive proxy statement (the "Proxy Statement") under Regulation 14A of the Act relating to the special meeting of shareholders of the Company at which the shareholders of the Company will consider and vote upon, among other things, a proposal to approve and adopt the Merger Agreement and the transactions contemplated thereby. The Proxy Statement and the Merger Agreement, attached thereto as Annex A, are incorporated by reference herein. All references in this Amended Schedule 13E-3 to Items numbered 1001 through 1016 are references to Items so numbered contained in Regulation M-A promulgated by the SEC.
The information in the Proxy Statement, including all annexes thereto, is hereby expressly incorporated by reference in this Amended Schedule 13E-3 in its entirety, and the responses to each Item herein are qualified in their entirety by the provisions of the Proxy Statement.
All information contained in this Amended Schedule 13E-3 relating to a particular person filing hereunder has been provided by such individual or entity for inclusion herein.
ITEM 1001
The information contained in the section of the Proxy Statement entitled SUMMARY TERM SHEET is incorporated herein by reference.
ITEM 2. SUBJECT COMPANY INFORMATION.
ITEM 1002
(a) The information contained in the following sections of the Proxy Statement is incorporated herein by reference:
SUMMARY TERM SHEET—The Parties
THE PARTIES
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(b) The information contained in the following sections of the Proxy Statement is incorporated herein by reference:
SUMMARY TERM SHEET—Required Vote
INFORMATION CONCERNING THE SPECIAL MEETING—Record Date; Voting at the Meeting; Quorum
INFORMATION CONCERNING THE SPECIAL MEETING—Required Vote
(c) The information contained in the section of the Proxy Statement entitled SPECIAL FACTORS—Comparative Market Price Data is incorporated herein by reference.
(d) The information contained in the section of the Proxy Statement entitled SPECIAL FACTORS—Dividends is incorporated herein by reference.
(e) None.
(f) The information contained in the section of the Proxy Statement entitled SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT is incorporated herein by reference.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSONS.
ITEM 1003
(a)-(b) The information contained in the following sections of the Proxy Statement is incorporated herein by reference:
SUMMARY TERM SHEET—The Parties
SUMMARY TERM SHEET—Security Ownership of Certain Beneficial Owners and Management
THE PARTIES
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
(c)(1)-(c)(2) The information contained in Item 10 of Part III of the Annual Report on Form 10-K of PDS Gaming Corporation, filed with the SEC on or about March 30, 2004, is incorporated herein by reference.
(c)(3) None.
(c)(4) None.
(c)(5) All of the filing persons herein who are natural persons are citizens of the United States.
ITEM 4. TERMS OF THE TRANSACTION.
ITEM 1004
(a)(1) Not applicable.
(a)(2) Information contained in the following sections of the Proxy Statement is incorporated herein by reference:
SUMMARY TERM SHEET—Required Vote
SUMMARY TERM SHEET—Certain Effects of the Merger
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SUMMARY TERM SHEET—Interests of Executive Officers and Directors in the Merger
QUESTIONS AND ANSWERS ABOUT THE MERGER AND THE SPECIAL MEETING
SPECIAL FACTORS—Background of the Merger
SPECIAL FACTORS—Certain Effects of the Merger
SPECIAL FACTORS—Our Position as to the Fairness of and Reasons for Recommending Approval of the Merger
SPECIAL FACTORS—Opinion of Financial Advisor to the Special Committee
SPECIAL FACTORS—PDSH's and the Other Continuing Shareholders' Purpose, Reasons and Other Considerations for the Merger
SPECIAL FACTORS—Material Federal Income Tax Consequences of the Merger
SPECIAL FACTORS—Plans or Proposals After the Merger
THE MERGER AND THE MERGER AGREEMENT—Accounting Treatment
(b) The information contained in the section of the Proxy Statement entitled SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT is incorporated herein by reference.
(c) The information contained in the following sections of the Proxy Statement is incorporated herein by reference:
SUMMARY TERM SHEET—Board of Directors' Recommendation To Shareholders
SPECIAL FACTORS—Certain Effects of the Merger
SPECIAL FACTORS—Interests of Executive Officers and Directors in the Merger
(d) Information contained in the following sections of the Proxy Statement is incorporated herein by reference:
SUMMARY TERM SHEET—Dissenters' Rights
INFORMATION CONCERNING THE SPECIAL MEETING—Dissenters' Rights
DISSENTERS' RIGHTS
ANNEX C to the Proxy Statement
(e) The information contained in the section of the Proxy Statement entitled SPECIAL FACTORS—Provisions for Unaffiliated Shareholders is incorporated herein by reference.
(f) None.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
�� ITEM 1005
(a) The information contained in the section of the Proxy Statement entitled CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS is incorporated herein by reference.
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(b)-(c) The information contained in the following sections of the Proxy Statement is incorporated herein by reference:
SPECIAL FACTORS—Background of the Merger
SPECIAL FACTORS—Financing the Merger; Sources of Funds
SPECIAL FACTORS—Interests of Executive Officers and Directors in the Merger
(d) Not applicable.
(e) The information contain in the following sections of the Proxy Statement is incorporated herein by reference:
SPECIAL FACTORS—Background of the Merger
SPECIAL FACTORS—Financing the Merger; Sources of Funds
SPECIAL FACTORS—Interests of Executive Officers and Directors in the Merger
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Annex A to Proxy Statement—Agreement and Plan of Merger
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
ITEM 1006
(a) Not applicable.
(b),(c)(1)-(c)(8) The information contained in the following sections of the Proxy Statement is incorporated herein by reference:
SUMMARY TERM SHEET—The Parties
THE PARTIES
SPECIAL FACTORS—Background of the Merger
SPECIAL FACTORS—Certain Effects of the Merger
SPECIAL FACTORS—Our Position as to the Fairness of and Reasons for Recommending Approval of the Merger
SPECIAL FACTORS—Plans or Proposals after the Merger
THE MERGER AND THE MERGER AGREEMENT—Purpose and Structure of the Merger
ITEM 7. PURPOSES, ALTERNATIVES, REASONS AND EFFECTS.
ITEM 1013
(a)-(c) The information contained in the following sections of the Proxy Statement is incorporated herein by reference:
SUMMARY TERM SHEET—Recommendation of the Special Committee
SUMMARY TERM SHEET—Board of Directors' Recommendation to Shareholders
SUMMARY TERM SHEET—PDSH's and the Other Continuing Shareholders' Purpose, Reasons and Other Considerations for the Merger
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SPECIAL FACTORS—Background of the Merger
SPECIAL FACTORS—Our Position as to the Fairness of and Reasons for Recommending Approval of the Merger
SPECIAL FACTORS—Opinion of Financial Advisor to the Special Committee
SPECIAL FACTORS—PDSH's and the Other Continuing Shareholders' Purpose, Reasons and Other Considerations for the Merger
SPECIAL FACTORS—PDSH's and the Other Continuing Shareholders' Position as to the Fairness of the Merger
THE MERGER AND THE MERGER AGREEMENT—Purpose and Structure of the Merger
(d) The information contained in the following sections of the Proxy Statement is incorporated herein by reference:
SPECIAL FACTORS—Certain Effects of the Merger
SPECIAL FACTORS—Material Federal Income Tax Consequences of the Merger
THE MERGER AND THE MERGER AGREEMENT—Purpose and Structure of the Merger
THE MERGER AND THE MERGER AGREEMENT—Consideration to be Received by Our Shareholders
THE MERGER AND THE MERGER AGREEMENT—Articles of Incorporation and Bylaws; Directors and Officers of the Surviving Corporation
DISSENTERS' RIGHTS
ITEM 8. FAIRNESS OF THE TRANSACTION.
ITEM 1014
(a)-(e) The information contained in the following sections of the Proxy Statement is incorporated herein by reference:
SUMMARY TERM SHEET—Required Vote
SUMMARY TERM SHEET—Recommendation of the Special Committee
SUMMARY TERM SHEET—Board of Directors' Recommendation to Shareholders
QUESTIONS AND ANSWERS ABOUT THE MERGER -What was the Opinion of the Financial Advisor?
SPECIAL FACTORS—Background of the Merger
SPECIAL FACTORS—Our Position as to the Fairness of and Reasons for Recommending Approval of the Merger
SPECIAL FACTORS—Opinion of Financial Advisor to the Special Committee
SPECIAL FACTORS—PDSH's and the Other Continuing Shareholders' Purpose, Reasons and Other Considerations for the Merger
SPECIAL FACTORS—PDSH's and the Other Continuing Shareholders' Position as to the Fairness of the Merger
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(f) The information contained in the section of the Proxy Statement entitled SPECIAL FACTORS—Background of the Merger is incorporated herein by reference.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS.
ITEM 1015
(a)-(c) The information contained in the following sections of the Proxy Statement is incorporated herein by reference:
SUMMARY TERM SHEET—Opinion of Financial Advisor to the Special Committee
SPECIAL FACTORS—Our Position as to the Fairness of and Reasons for Recommending Approval of the Merger
SPECIAL FACTORS—Opinion of Financial Advisor to the Special Committee
ITEM 10. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION.
ITEM 1007
(a)-(b) The information contained in the following sections of the Proxy Statement is incorporated herein by reference:
SUMMARY TERM SHEET—Financing the Merger; Sources of Funds
SPECIAL FACTORS—Financing the Merger; Sources of Funds
(c) The information contained in the following sections of the Proxy Statement is incorporated herein by reference:
SUMMARY TERM SHEET—Financing the Merger; Sources of Funds
SPECIAL FACTORS—Financing the Merger; Sources of Funds
THE MERGER AND THE MERGER AGREEMENT—Estimated Fees and Expenses of the Merger
(d) The information contained in the following sections of the Proxy Statement is incorporated herein by reference:
SUMMARY TERM SHEET—Financing the Merger; Sources of Funds
SPECIAL FACTORS—Financing the Merger; Sources of Funds
ITEM 11. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
ITEM 1008
(a) The information contained in the following sections of the Proxy Statement is incorporated herein by reference:
SPECIAL FACTORS—Interests of Executive Officers and Directors in the Merger
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
(b) The information contained in the section of the Proxy Statement entitled SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT is incorporated herein by reference.
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ITEM 12. THE SOLICITATION OR RECOMMENDATION.
ITEM 1012
(a) Not applicable.
(b) Not applicable.
(c) Not applicable.
(d)-(e) The information contained in the following sections of the Proxy Statement is incorporated herein by reference:
INFORMATION CONCERNING THE SPECIAL MEETING—Purpose of the Special Meeting
INFORMATION CONCERNING THE SPECIAL MEETING—Required Vote
SPECIAL FACTORS—Our Position as to the Fairness of and Reasons for Recommending Approval of the Merger
SPECIAL FACTORS—Opinion of Financial Advisor to the Special Committee
SPECIAL FACTORS—PDSH's and the Other Continuing Shareholders' Purpose, Reasons and Other Considerations for the Merger
SPECIAL FACTORS—PDSH's and the Other Continuing Shareholders' Position as to the Fairness of the Merger
SPECIAL FACTORS—Interests of Executive Officers and Directors in the Merger
ITEM 13. FINANCIAL STATEMENTS.
ITEM 1010
(a),(c) The information contained in the following sections of the Proxy Statement is incorporated herein by reference:
COMPANY SELECTED CONSOLIDATED FINANCIAL INFORMATION
WHERE YOU CAN FIND MORE INFORMATION
INCORPORATION BY REFERENCE
(b) Not applicable.
ITEM 14. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED.
ITEM 1009
(a)-(b) The information contained in the following sections of the Proxy Statement is incorporated herein by reference:
SUMMARY TERM SHEET—Recommendation of the Special Committee
SUMMARY TERM SHEET—Board of Directors' Recommendation to Shareholders
SUMMARY TERM SHEET—Opinion of Financial Advisor to the Special Committee
SUMMARY TERM SHEET—Security Ownership of Certain Beneficial Owners and Management
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QUESTIONS AND ANSWERS ABOUT THE MERGER—Who should I contact if I have any questions?
INFORMATION CONCERNING THE SPECIAL MEETING—Costs of Soliciting Proxies
SPECIAL FACTORS—Our Position as to the Fairness of and Reasons for Recommending Approval of the Merger
SPECIAL FACTORS—Opinion of Financial Advisor to the Special Committee
SPECIAL FACTORS—Interests of Executive Officers and Directors in the Merger
THE MERGER AND THE MERGER AGREEMENT—Solicitation of Proxies; Expenses of Solicitation
ITEM 15. ADDITIONAL INFORMATION.
ITEM 1011
(a) Not applicable.
(b) The information contained in the Proxy Statement, including all annexes thereto, is incorporated herein by reference.
ITEM 1016
(a) Definitive Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on August 24, 2004 is incorporated herein by reference.
(b) Commitment Letter between Cochran Road, LLC and PDS Holding Co., LLC, as amended, dated April 21, 2004.*
(c) Opinion of The Seidler Companies Incorporated, attached as Annex B to Proxy Statement.
(d) Agreement and Plan of Merger, dated as of April 14, 2004, by and among PDS Gaming Corporation, PDS Holding Co., LLC and PDS Acquisition Sub, LLC (attached as Annex A to Proxy Statement)
(e) Not applicable.
(f) Section 302A.471 and Section 302A.473 of the Minnesota Business Corporation Act, attached as Annex C to Proxy Statement.
(g) None.
(h) Not applicable.
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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.
PDS GAMING CORPORATION | |||
| By: | /s/ JOHAN P. FINLEY (Signature) | ||
| Johan P. Finley, Chairman and Chief Executive Officer (Name and title) | |||
| August 24, 2004 (Date) | |||
PDS HOLDING CO., INC. | |||
| By: | /s/ JOHAN P. FINLEY (Signature) | ||
| Johan P. Finley, Chairman and Chief Executive Officer (Name and title) | |||
| August 24, 2004 (Date) | |||
PDS ACQUISITION SUB, LLC | |||
| By: | /s/ JOHAN P. FINLEY (Signature) | ||
| Johan P. Finley, Manager (Name and title) | |||
| August 24, 2004 (Date) | |||
| By: | /s/ JOHAN P. FINLEY (Signature) | ||
| Johan P. Finley, Individually (Name and title) | |||
| August 24, 2004 (Date) | |||
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| By: | /s/ LONA M. B. FINLEY (Signature) | ||
| Lona M. B. Finley, Individually (Name and title) | |||
| August 24, 2004 (Date) | |||
| By: | /s/ PETER D. CLEARY (Signature) | ||
| Peter D. Cleary, Individually (Name and title) | |||
| August 24, 2004 (Date) |
Instruction to Signature: The statement must be signed by the filing person or that person's authorized representative. If the statement is signed on behalf of a person by an authorized representative (other than an executive officer of a corporation or general partner of a partnership), evidence of the representative's authority to sign on behalf of the person must be filed with the statement. The name and any title of each person who signs the statement must be typed or printed beneath the signature. See ss.240.12b-11 with respect to signature requirements.
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