As filed with the Securities and Exchange Commission on March 17, 2000
Registration No. 333-95275
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
AMENDMENT NO. 1
TO
REGISTRATION STATEMENT
ON
FORM F-3
Under
THE SECURITIES ACT OF 1933
Optimal Robotics Corp.
(Exact name of Registrant as specified in its charter)
--------------------------------------
<TABLE>
<CAPTION>
<S> <C> <C>
Canada 7373 98-0160833
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
--------------------------------------
</TABLE>
4700 de la Savane
Suite 101
Montreal, Quebec H4P 1T7
(514) 738-8885
(Address and telephone number of Registrant's principal executive offices)
--------------------------------------
CT Corporation System
111 8th Avenue
New York, New York 10011
Telephone (212) 894-8400
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(Name, address and telephone number of agent for service)
--------------------------------------
Guy P. Lander Leon P. Garfinkle
Goodman Phillips & Vineberg Goodman Phillips & Vineberg
430 Park Avenue 1501 McGill College Avenue
New York, New York 10022 Montreal, Quebec H3A 3N9
(212) 308-8866 (514) 841-6400
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest investment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act,
please check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_| _______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| _______________
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| _______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
<PAGE>
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment that specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
Optimal Robotics Corp.
Cross Reference Sheet Pursuant to Regulation S-K, Item 501(b)
<TABLE>
<CAPTION>
Form F-3 Item Sections in Prospectus
<S> <C>
Forepart of the Registration Statement and Outside Front
Cover Page of Prospectus.......................... Outside Front Cover Page
Inside Front and Outside Back Cover Pages of Prospectus Inside Front and Outside Back Cover Pages
Summary Information, Risk Factors, and Ratio of Earnings
to Fixed Charges.................................. Prospectus Summary; Risk Factors
Use of Proceeds........................................ Use of Proceeds
Determination of Offering Price........................ Plan of Distribution
Dilution............................................... Inapplicable
Selling Security Holders............................... Selling Shareholder
Plan of Distribution................................... Outside Front and Inside Front Cover Pages;
Plan of Distribution
Description of Securities to be Registered............. Description of Capital Stock
Interests of Named Experts and Counsel................. Legal Matters; Experts
Material Changes....................................... Inapplicable
Incorporation of Certain Information By Reference Where You Can Get More Information
Disclosure of Commission Position on Indemnification
for Securities Act Liabilities......... Inapplicable
</TABLE>
<PAGE>
DATED MARCH 17, 2000
PROSPECTUS
253,420 Class "A" Shares
OPTIMAL ROBOTICS CORP.
COMMON SHARES
One of our shareholders, Gerard Klauer & Mattison, Inc., is offering for
sale 253,420 of our common shares, which trade on the Nasdaq National Market
under the symbol "OPMR". Gerard Klauer is a statutory underwriter with respect
to 12,820 of these shares. On March 15, 2000 the last reported sale price for
the common shares was $38.50 per share. Because the common shares are being
offered by a shareholder and not by us, we will receive no proceeds from the
offering. However, the shareholder will pay $1,671,290 to us upon its exercise
of warrants to acquire the common shares which it is offering under this
prospectus. See "Use of Proceeds."
---------------------
Investing in the common shares involves certain risks. See "Risk Factors"
beginning on page 3.
---------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities, or determined if
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
March 17, 2000
<PAGE>
PROSPECTUS SUMMARY
The summary is not complete and does not contain all of the information
that you should consider before investing in our common shares. We encourage you
to read the entire prospectus carefully, including the section entitled "Risk
Factors," and to also read the financial statements and the notes to those
financial statements that we have incorporated into this prospectus by
reference. In this prospectus, except where otherwise indicated, references to
"dollars" or "$" are to United States dollars.
Our Company
We are the leading provider of self-checkout systems to retailers in the
United States. Our principal product is the U-Scan Express, an automated
self-checkout system which enables shoppers to scan, bag and pay for their
purchases with little or no assistance from store personnel. We estimate that in
1999 U-Scan Express systems processed over 45 million customer transactions. The
U-Scan Express can be operated quickly and easily by shoppers and makes the
checkout process more convenient for them. The U-Scan Express also reduces the
cost of checkout transactions to retailers and addresses labor shortage problems
by replacing manned checkout counters with our automated self-checkout stations.
As of December 31, 1999, we had installed 375 U-Scan Express systems,
consisting of 1,498 checkout stations, in 328 stores of leading retailers across
29 states. Each U-Scan Express system typically includes four checkout stations
and one manned supervisor terminal. As of January 31, 2000, we had purchase
commitments for a minimum of 457 U-Scan Express systems.
The following chart provides information regarding the U-Scan Express
systems we have installed during the last five years:
<TABLE>
<CAPTION>
1995 1996 1997 1998 1999
---- ---- ---- ----- ----
<S> <C> <C> <C> <C> <C>
U-Scan Express system installations:
Systems installed during year 2 6 22 57 288
Systems installed at year-end 2 8 30 87 375
U-Scan checkout stations installed at year-end 8 32 120 346 1,498
Customer transactions (millions) (1) 12 45
</TABLE>
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(1) Estimated, based on reports provided by our customers. Prior to 1998, we
did not track this data.
Our Corporate Information
Optimal was formed in 1984 and is incorporated under the federal laws of
Canada. We commenced our current business in 1991. Our principal office is
located at 4700 de la Savane, Montreal, Quebec, H4P 1T7, and our telephone
number is (514) 738-8885. We have one subsidiary, Optimal Robotics, Inc., a
wholly-owned Delaware corporation.
<TABLE>
<CAPTION>
The Offering
<S> <C>
Common shares offered.................................. 253,420(1)
Common shares to be outstanding after the offering..... 11,714,353 (2)(3)
Use of Proceeds........................................ The Company will receive no proceeds from this
offering, other than those received from the selling
shareholder's exercise of warrants, which will be used
for general corporate purposes. See "Use of Proceeds."
Nasdaq National Market Symbol.......................... OPMR
</TABLE>
- ----------
(1) Issuable upon exercise of warrants held by the selling shareholder. See
"Selling Shareholder."
(2) Computed as if the 2,606,462 unissued common shares underlying options
(including reload options) and warrants not held by the selling shareholder
were not outstanding. The 253,420 common shares underlying warrants held by
the selling shareholder were treated as outstanding.
(3) We have filed a registration statement for a proposed public offering of
our common shares, which will include the issuance by us to the public of
1,325,000 common shares (without giving effect to the exercise of the
underwriters' overallotment option) and the issuance by us of an additional
560,000 common shares upon the exercise by four selling shareholders of
share purchase options and warrants. For purposes of these calculations, we
have assumed that such 1,885,000 common shares are not outstanding.
1
<PAGE>
Where You Can Find Additional Information
We file reports and other information with the Securities and Exchange
Commission. We have filed a registration statement on Form F-3 with the
Commission to register the common shares offered under this prospectus. This
prospectus, which constitutes part of such registration statement, does not
contain all of the information contained in the registration statement and its
exhibits and schedules. You may review the registration statement without charge
at the Commission's Public Reference Room, 450 Fifth Street, N.W., Washington,
D.C. 20549. The public may obtain information on the operation of the Public
Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains an
Internet site that contains reports, proxy and information statements, and other
information regarding issuers that file electronically with the SEC, which
Internet site is located at http://www.sec.gov.
Our statements in this prospectus about contracts, agreements and other
documents are not necessarily complete, and you are encouraged to review the
schedules and exhibits to the registration statement for a more complete
description of the matter involved. Each such statement is qualified in its
entirety by reference to the schedule or exhibit.
We are required to furnish to our shareholders annual reports containing
audited financial statements certified by our chartered accountants in Canada
and quarterly reports containing unaudited financial data for the first three
quarters of each fiscal year following the end of the respective fiscal quarter.
The SEC allows us to "incorporate by reference" certain information that we
file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information which we incorporate by
reference to our future SEC filings will automatically update and supersede this
information. We incorporate by reference our Annual Report on Form 10-K for the
year ended December 31, 1999, filed with the SEC on February 24, 2000, any
future filings we will make with the SEC under Section 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 and the description of the common shares
being offered hereby contained in our Form 8-A filed with the SEC on July 14,
1996. We may also incorporate in this prospectus any Form 6-K which we file with
the Securities and Exchange Commission by identifying in such Form that it is
being incorporated by reference into this prospectus.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address or telephone number:
Optimal Robotics Corp.
4700 de la Savane
Suite 101
Montreal, Quebec H4P 1T7
Attention: O. Bradley McKenna
(514) 738-8885
We are a foreign private issuer under the rules and regulations of the
Commission.
2
<PAGE>
RISK FACTORS
You should carefully consider the following factors and other information
in this prospectus before deciding to purchase our common shares.
We have a history of losses. Prior to the second quarter of 1999, our
operations generated losses. As of December 31, 1999, our accumulated deficit
from inception was $5,625,622. There is no guarantee that we will be profitable
in the future.
We principally depend on one product. We believe that our near-term success
depends principally on the sales volume of one product, the U-Scan Express. Our
future success depends upon the continued acceptance of and demand for this one
product, as well as new products that we may bring to market. If U-Scan Express
experiences significant problems, competition from superior technology, or
customer resistance, we could be harmed significantly. Sales growth will depend
on our generating additional orders from existing U-Scan Express customers as
well as finding new customers for the system. We believe that our customers will
only purchase the U-Scan Express if they conclude that shoppers will use it and
that there are benefits to the store from its installation. We believe that
shoppers will use the U-Scan Express only if it is convenient, easy to use and
reliable.
We rely on a few customers for most of our revenues. We have 15 major
retailers as customers, nearly all of which are supermarket chains, and we rely
on these customers' continued willingness to install the U-Scan Express. We may
not be able to generate new customers for the U-Scan Express.
We may not be able to manage our growth. During the past several years, we
have experienced significant growth in sales. As a result, we have had to hire
and train additional skilled personnel. Should sales continue to increase, we
will have to hire and train even more personnel to customize, install and
support U-Scan Express. There is no assurance that we will be able to hire the
skilled personnel we will need to meet increased demand should it develop. This
is particularly true for installation and support personnel, for whom there is
significant competition. If we are unable to hire such personnel, our sales may
be adversely affected. Despite our recent growth, we are still a small company,
and should demand for our products be unexpectedly strong, we may be unable to
fill our orders.
We rely on third party assembly. We currently depend upon PSC, Inc. to
assemble U-Scan Express. PSC has the exclusive right to assemble U-Scan Express
for us through December 31, 2000 (after which date PSC will cease assembly and
we will commence assembling our systems). Prior to December 31, 2000, should PSC
fail for any reason to produce enough systems to meet demand, we may be
materially adversely affected. Furthermore, the inability to control the
assembly of our primary product during this period could adversely affect us.
We rely on third party suppliers. The U-Scan Express is assembled from
components that are readily available from numerous suppliers. Although we may
utilize a single supplier for particular components, given the open architecture
of our system, we are not dependent on any single supplier for any particular
component. Nevertheless, should any of our suppliers fail to deliver components
to us in a timely manner, it could disrupt our business.
The U-Scan Express is assembled in a single facility. PSC currently
assembles the U-Scan Express in a single facility in Rochester, New York.
Beginning January 1, 2001, we will assemble our systems in a single facility in
Plattsburgh, New York. A disruption of operations at either facility for any
reason, including labor unrest or natural disaster, may adversely affect our
business and results of operations.
We have limited experience assembling the U-Scan Express. We will assume
assembly of our systems in our Plattsburgh, New York facility on January 1,
2001. Because we have not performed this function before, we may experience
difficulties in assembling our systems or encounter logistical problems.
We have pending patent infringement claims against us. In each of 1995 and
1996, we received a demand letter from the same claimant alleging that U-Scan
Express infringes upon the claimant's patent. In July 1999, this claimant filed
a civil action in the United States District Court for the District of Utah
against us and PSC, the current assembler of U-Scan Express, alleging patent
infringement. A second party also sent a demand letter to us alleging a
different patent infringement. After consultation with counsel, we believe that
the former claimant should not prevail in its lawsuit and that the latter
claimant should not prevail if a lawsuit is brought to assert its claim, and
that these claims will not have a material adverse effect on our business or
prospects. However, no assurance can be given that a court will not ultimately
determine that the system infringes upon one or both of such claimants' rights.
A determination by a court that the system infringes upon either of the
claimants' rights would have a material adverse effect on our business and
results of operations.
3
<PAGE>
We may not be able to keep pace with changes in technology. The
self-checkout industry is rapidly developing. The technology utilized by the
U-Scan Express is changing rapidly, in part due to the evolving demands of our
customers. To be successful, we will have to anticipate the demands of our
customers and improve our existing products and develop new ones to satisfy
them. If we fail to improve and develop products by the times and at the prices
demanded by our customers, our business and prospects may be adversely affected.
Our competitors may introduce new technology that is better than ours. If so, we
will have to improve our technology in order to remain competitive. If we are
unable to do so, there might be an adverse impact on us.
We depend upon key personnel. Our future success depends to a great extent
on the continued services of our senior management and other key personnel,
including sales people. Our success will also depend upon our ability to hire
and retain qualified personnel to assemble, install and support our systems, to
improve our existing products and to develop new ones. These people will
include:
o programmers and other software engineers,
o project managers,
o installers, and
o hardware and software support personnel.
The competition for these people may be significant. Should we have difficulty
hiring or retaining qualified personnel, it could adversely affect our business
and prospects.
Competition could reduce revenue from the U-Scan Express. The market for
checkout systems is very competitive. The chief rival for the U-Scan Express is
the traditional manned checkout counter. Although the use of automated
self-checkout systems such as the U-Scan Express is relatively new, we expect
increasing competition for sales of this product. The barriers to entering this
market may be low. Most of our competitors are larger and have greater financial
and other resources. Competitors include NCR Corporation, Symbol Technologies,
Inc. and Productivity Solutions, Inc. Additionally, PSC has announced its
intention to enter this market after December 31, 2000. We may not be able to
compete successfully against these and other companies with greater financial
and other resources.
Our products may contain defects. Our products, including the U-Scan
Express, are complex and, despite extensive testing, may contain undetected
flaws when first installed for a new customer. This is particularly true of the
software in our products, which must be adapted to each customer's information
systems. If serious, any such flaws could prevent or delay market acceptance of
our products and cause us to incur substantial re-engineering expenses.
Our directors and officers can influence shareholder actions through their
share ownership. After this offering and the planned public offering of
2,000,000 of our common shares, including 675,000 common shares by four of our
shareholders, our officers and directors will have the right to vote (if they
were to exercise all vested options, including "reload" options, and warrants
held by them) an aggregate of 1,852,000 common shares, which will amount to
12.3% of the then total outstanding shares (after giving effect to such
exercises). This percentage of outstanding shares may permit these persons to
determine the outcome of any matter submitted to a vote of our shareholders,
including the election of directors, any amalgamation or consolidation, or the
sale of all or substantially all of our assets.
Share prices in technology stocks have been volatile. Recently, there have
been substantial price and volume fluctuations in stock markets, and the prices
of technology company shares have been particularly volatile. The price of our
common shares in the stock market may move in ways that are unrelated or
disproportionate to our operating performance. In addition to our performance,
the following factors may cause the price of our common shares to fluctuate in
the stock market:
o the introduction of new products by us or by competitors,
o business conditions in our markets,
o earnings forecasts by market analysts,
o sales of our common shares in the market,
o low trading volume of our common shares, and
o general economic conditions.
Other factors, both related and unrelated to us, may also cause fluctuations in
our share price.
4
<PAGE>
We are at risk from foreign currency exchange rate fluctuations. A
significant portion of our expenses is paid in Canadian dollars, while
substantially all of our revenues are earned in U.S. dollars. If the Canadian
dollar becomes stronger, the effective cost of our expenses (as reported in U.S.
dollars) will increase. We have never tried to hedge our exchange rate risk, do
not plan to begin to do so and may not be successful should we attempt to do so
in the future.
Future sales of common shares could depress the price of the common shares.
Sales of significant numbers of common shares in the public market after this
offering, or the perception that these sales will occur, may materially depress
the market price of the common shares as well as restrict our ability to raise
capital through future sales of common shares. We filed a registration statement
on February 24, 2000 (as amended on March 7, 2000), under which we and four of
our shareholders have registered up to two million of our common shares,
excluding 300,000 shares issuable upon the exercise of the underwriters'
over-allotment option. Of the 13,599,353 common shares that will be outstanding
upon the termination of this offering and the closing of the 2,000,000 share
offering, 12,817,085 shares (which number includes the 2,000,000 shares being
sold in the larger offering) will be eligible for immediate resale in the public
market without restriction. All of our directors and officers have agreed to
certain lock-up arrangements prohibiting the sale of shares owned by them for
specified periods in connection with the 2,000,000 share offering. Lock-up
arrangements with the selling shareholders in the larger offering expire on
February 24, 2001 and lock-up arrangements with our other officers and directors
expire 90 days after the date of the final prospectus relating to the 2,000,000
share offering. Following the expiration of all of these lock-up periods, an
aggregate of 2,355,750 additional shares (including shares underlying currently
unvested options) may be sold by our affiliates into the public market, subject
to certain volume and other limitations.
Gerard Klauer Mattison & Co., Inc., the selling shareholder in this
offering, has agreed to delay any sales of the common shares covered by the
registration statement of which this prospectus forms a part until 90 days after
the date of the final prospectus relating to the 2,000,000 share offering. After
such time, Gerard Klauer may sell its shares in the public market.
We have an effective Registration Statement covering up to 2,528,000 common
shares issuable upon the exercise of outstanding options (including reload
options) and warrants held by directors, officers, employees and consultants.
Those common shares, when issued, will be eligible for immediate resale in the
public market.
Our quarterly operating results may vary. Our operating results have varied
from quarter to quarter. In November and December, retailers focus on holiday
season sales and not on installing checkout systems. As a result, sales in those
months are generally less than sales in the rest of the year. We recognize
revenue from the sale of a system when installation is completed and the
customer has accepted it.
We do not anticipate paying dividends in the near future. We intend to
retain all of our earnings, if any, to finance operations and expand our
business and do not anticipate paying any cash dividends in the foreseeable
future.
It may be difficult to enforce judgments against us or our affiliates. We
are incorporated under the federal laws of Canada. Most of our directors and
officers and the experts named herein are residents of Canada and all or a
substantial portion of their assets and substantially all of our assets are
located outside the United States. As a result, it may not be possible for
shareholders to effect service of process within the United States upon such
persons or to enforce against them judgments of U.S. courts under any U.S.
securities laws. There is doubt as to the enforceability in Canada, in original
actions or in actions for the enforcement of judgments of U.S. courts, of civil
liabilities predicated upon the U.S. securities laws.
Organized labor may resist U-Scan Express. The U-Scan Express displaces
cashiers. For this reason, organized labor may seek provisions in collective
bargaining agreements that prevent stores from installing U-Scan Express.
Management has broad discretion to disburse proceeds. Management has broad
discretion in determining how to utilize the approximately $18.7 million of
proceeds that have been earmarked for general corporate purposes in our
2,000,000 share offering and upon the exercise by Gerard Klauer of its warrants.
Pending their use, these offering and warrant exercise proceeds will be invested
in short-term, investment grade, interest-bearing securities. The return on
these investments may be less than what we would earn if the proceeds were put
to use immediately.
We may require additional financing. We believe that our present cash and
cash equivalents along with our net proceeds from this offering will be
sufficient to meet our working capital and capital expenditure needs for at
least the next 12 months. If, however, we need to raise additional funds for
reasons that we currently do not anticipate, any securities that we issue in
connection therewith may diminish the percentage ownership or voting
5
<PAGE>
rights of the holders of our common shares. Securities may be issued that have
rights or preferences superior to the common shares that are being sold in this
offering. Should we need to raise additional funds in the future, we may not be
able to do so on any terms, or we may be unwilling to agree to the terms
necessary to do so, and we would be adversely affected as a result of the
failure to raise additional funds.
We may be vulnerable to technological problems. We are a
technology-oriented company and depend to a significant degree upon our ability
to communicate on-line or by telephone with the systems that we have installed.
If we are unable to access these systems due to technological problems beyond
our control, it will have a material adverse effect on our ability to assist our
customers. Additionally, if our customers are unable to reach us by telephone or
via the Internet, we will also be unable to respond to questions or address
serious problems faced by these customers. If our ability to communicate with
our systems or our customers is impaired, our business may be adversely
affected. We are also developing strategies to capitalize on e-commerce
opportunities. The Internet is subject to security and privacy breaches which
may impact us or our customers.
Year 2000 remediation may involve significant time and expense and may
reduce our future sales. All major and most minor third party providers of goods
and services to us completed questionnaires that allowed us to assess their Year
2000 readiness prior to January 1, 2000. However, there is no assurance that we
properly evaluated each third party's readiness through our review of the
respective response. If a potential customer were to suffer Year 2000 related
problems or set aside funds for Year 2000 expenditures while considering the
purchase of a U-Scan Express, it is likely that any such purchase would be
delayed. Additionally, we may face claims based on Year 2000 issues arising from
the integration of multiple products within an overall system at a customer. To
date, we have not been alerted to any difficulties on the part of our customers
relating to Year 2000 issues, nor are we aware of any such delays in purchasing
the system or claims resulting from its integration with a customer's store
systems.
FORWARD-LOOKING STATEMENTS
Some of the statements contained in this prospectus contain forward-looking
information. These statements are found in the sections entitled "Prospectus
Summary," "Risk Factors," and "Use of Proceeds." They include information
concerning:
o growth and operating strategy,
o liquidity and capital expenditures,
o use of proceeds of the offering,
o financing plans,
o industry trends, and
o payment of dividends.
You can identify these statements by forward-looking words such as
"expect," "believe," "goal," "plan," "intend," "estimate," "may," and "will" or
similar words. These forward-looking statements involve known and unknown risks,
uncertainties and other factors, including those described in the "Risk Factors"
section and elsewhere in this prospectus, that could cause our actual results to
differ materially from those anticipated in these forward-looking statements.
6
<PAGE>
USE OF PROCEEDS
The common shares are being registered for the account of the selling
shareholder. The Company will receive no proceeds from the sale of the common
shares. In order to obtain the common shares it is offering, however, the
selling shareholder must exercise warrants it holds. If it exercises all of the
warrants, the aggregate exercise price payable to the Company will be
$1,671,290. See "Selling Shareholder." Any amounts received by the Company upon
the exercise of warrants will be used for general corporate purposes.
SELLING SHAREHOLDER
The shareholder that is offering common shares with this prospectus is
Gerard Klauer Mattison & Co., Inc. In connection with acting as lead underwriter
for the Company's initial public offering in 1996, Gerard Klauer received
warrants to purchase 240,600 common shares. These warrants are exercisable at
$6.60 per share until they expire on October 30, 2001. Gerard Klauer also holds
warrants to purchase 12,820 common shares that it purchased from investors that
received them in a private financing the Company completed before its initial
public offering. These warrants are exercisable at $6.50 per share until they
expire on October 24, 2002. The common shares being offered by Gerard Klauer
with this prospectus are the common shares that are issuable upon exercise of
these warrants.
Set forth below are Gerard Klauer's beneficial ownership of common shares
before and after the offering under this prospectus.
Common Shares Owned
<TABLE>
<CAPTION>
Before this Offering Being Offered After this Offering
- ---------------------------------- -------------------------- -------------------------
<S> <C> <C> <C> <C> <C>
Number(1) Percent(2) Number(1) Percent(2) Number Percent
303,420 2.6% 253,420 2.2% 50,000 *
</TABLE>
* under one percent (1%)
(1) Includes the 253,420 common shares that are issuable upon exercise of
warrants and 50,000 common shares that Gerard Klauer holds directly in its
own name. The common shares being offered are the shares underlying such
warrants.
(2) Computed as if 2,606,462 unissued common shares underlying options
(including reload options) and warrants not held by Gerard Klauer were not
outstanding. Common shares underlying warrants held by Gerard Klauer were
treated as outstanding.
(3) We have filed a registration statement for a proposed public offering of
our common shares, which will include the issuance by us to the public of
1,325,000 common shares (without giving effect to the exercise of the
underwriters' overallotment option) and the issuance by us of an additional
560,000 common shares upon the exercise by four selling shareholders of
share purchase options and warrants. For purposes of these calculations, we
have assumed that such 1,885,000 common shares are not outstanding.
Gerard Klauer acted as a co-managing underwriter for our 1999 public
offering, for which it received a customary fee. Gerard Klauer is acting as lead
underwriter for our planned 2,000,000 share offering and will receive a
customary fee in connection therewith.
7
<PAGE>
DESCRIPTION OF SHARE CAPITAL
Our authorized capital stock consists of an unlimited number of Class "A"
shares without par value (being referred to throughout this prospectus as the
"common shares"), an unlimited number of Class "B" shares without par value (the
"Class B Preferred Stock") and an unlimited number of Class "C" shares without
par value (the "Class C Preferred Stock"), of which 11,460,933 common shares
were issued and outstanding as of March 6, 2000.
The following is a description of the material rights of our authorized
capital stock. This description does not purport to be complete and is qualified
in its entirety by reference to our Articles of Incorporation, a copy of which
has been previously filed with the Commission.
Common shares
Dividend Rights
Holders of common shares shall be entitled to receive, as and when declared
by Optimal's Board of Directors, but subject to the prior rights of the Class C
Preferred Stock and any other class of shares ranking prior to the common
shares, dividends in such amounts to be determined by Optimal's Board of
Directors in its sole discretion.
Voting Rights
Holders of common shares are entitled to cast one vote for each common
share held of record on all matters acted upon at any shareholders' meeting
(except meetings at which only the holders of another specified class or series
of shares are entitled to vote pursuant to the Canada Business Corporations Act
(the "CBCA")).
Liquidation Rights
The holders of common shares are entitled to receive the remaining property
of Optimal in the event of its liquidation, dissolution or winding up or other
distribution of its assets for the purpose of winding up its affairs, subject to
the prior rights of any other class of shares ranking prior to the common shares
in such circumstances.
Class B Preferred Stock
Dividend Rights
The holders of the Class B Preferred Stock are not entitled to receive any
dividends thereon.
Voting Rights
Holders of the Class B Preferred Stock are entitled to cast one vote for
each such share held of record on all matters acted upon at any shareholders'
meeting (except meetings at which only the holders of another specified class or
series of shares are entitled to vote pursuant to the CBCA).
Redemption
The Class B Preferred Stock at any time outstanding is redeemable at our
option, in whole or in part, at any time or from time to time, upon payment to
the holders of the shares to be redeemed of a sum equal to the amount paid-up
thereon.
Liquidation Rights
The Class B Preferred Stock shall rank, with respect to the return of the
amount paid-up thereon, in priority to the common shares, Class C Preferred
Stock and all shares ranking junior to the Class B Preferred Stock in the event
8
<PAGE>
of the liquidation, dissolution or winding up of Optimal or other distribution
of Optimal's assets for the purpose of winding up its affairs.
Class C Preferred Stock
The Class C Preferred Stock may be issued from time to time in one or more
series, the terms of each series including the number of shares, designation,
rights, privileges, restrictions and conditions to be determined at the time of
creation of each such series by Optimal's Board of Directors without shareholder
approval, provided that all Class C Preferred Stock will rank, with respect to
dividends and return of capital in the event of liquidation, dissolution or
winding up of Optimal or other distribution of assets of Optimal for the purpose
of winding up its affairs, pari passu among themselves and in priority to all
common shares or shares of any class ranking junior to the Class C Preferred
Stock.
Indemnification
Our By-laws provide the following:
Subject to the provisions of the CBCA, every director and officer of
Optimal (including those who have acted at Optimal's request as an officer or
director of a body corporate of which Optimal is or was a shareholder or
creditor) and his heirs and legal representatives shall from time to time be
indemnified and saved harmless by Optimal from and against all costs, charges
and expenses reasonably incurred by him in respect of any civil, criminal or
administrative action or proceeding to which he is made a party by reason of
being or having been a director or officer of Optimal or such body corporate
(including without limitation all losses, liabilities, costs, charges and
expenses incurred by him in respect of any act or proceeding for the recovery of
claims of employees or former employees of Optimal or such body corporate or in
respect of any claim based upon the failure of Optimal to deduct, withhold,
remit or pay any amount for taxes, assessments and other charges of any nature
whatsoever as required by law), if
(a) he acted honestly and in good faith with a view to the best interests
of Optimal; and
(b) in the case of a criminal or administrative action or proceeding that
is enforced by a monetary penalty, he had reasonable grounds for
believing that his conduct was lawful.
The By-laws also contain a provision eliminating the liability of directors
or officers for losses, damages or other misfortunes of Optimal arising out of
the execution of the duties of his office or in relation thereto, unless
occasioned by his own wilful neglect or default (subject to compliance with the
mandatory obligations and duties imposed by the CBCA and the regulations
thereunder and the liability imposed for any breach thereof).
Optimal shall also indemnify such person in such other circumstances as the
CBCA may require.
Transfer Agent and Registrar
The co-transfer agents and co-registrars for the common shares are Montreal
Trust Company of Canada and The Bank of Nova Scotia Trust Company of New York.
9
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CERTAIN CANADIAN AND UNITED STATES INCOME TAX CONSIDERATIONS
Canadian Federal Income Tax Considerations
The following is a general summary prepared by Goodman Phillips & Vineberg,
Montreal, Quebec, of the material Canadian federal income tax considerations
under the Income Tax Act (Canada) (the "Canadian Tax Act") to holders of common
shares who are not resident nor deemed to be resident in Canada, who deal at
arm's length with Optimal, who are not affiliated with Optimal within the
meaning of the Canadian Tax Act, who hold the common shares as capital property
and who do not use or hold, and are not deemed to use or hold, the common shares
in connection with a trade or business carried on, or deemed to be carried on in
Canada at any time ("Non-Resident Holders"). In general, common shares will be
considered to be capital property of a holder unless the holder holds the common
shares as part of an adventure or concern in the nature of trade. This summary
does not apply to any Non-Resident Holder who formerly resided in Canada and
owned common shares upon ceasing to reside in Canada. Nor does this summary
discuss special rules which may apply to a Non-Resident Holder that is an
insurer, a "financial institution" or a "specified financial institution" within
the meaning of the Canadian Tax Act, and accordingly, such persons should
consult their own tax advisors.
This summary is based upon the current provisions of the Canadian Tax Act,
the regulations thereunder, proposed amendments thereto publicly announced by
the Department of Finance, Canada prior to the date hereof, the provisions of
the Canada-U.S. Income Tax Convention (1980) (the "Convention") and the current
administrative practices of the Canada Customs and Revenue Agency (the "CCRA").
It has been assumed that the proposed amendments to the Canadian Tax Act and the
regulations thereunder will be enacted and that there will be no other relevant
amendments thereto. However, no assurance can be given in this respect. This
summary does not otherwise take into account or anticipate any changes in law,
whether by legislative, governmental or judicial action or changes in
administrative practice of the CCRA.
This summary is of a general nature only and is not intended to be, and
should not be construed to be, legal or tax advice to any prospective investor
and no representation with respect to the tax consequence to any particular
investor is made. The summary does not address any aspect of any provincial or
local tax laws or the tax laws of jurisdictions outside Canada or the tax
considerations applicable to persons other than Non-Resident Holders.
Accordingly, prospective investors should consult with their own tax advisors
for advice with respect to the income tax consequences of an investment in
common shares arising under any provincial or local tax laws or the tax laws of
jurisdictions outside Canada. This summary assumes the common shares are listed
and will continue to be listed on a prescribed stock exchange (which is
currently contemplated to include the National Association of Securities Dealers
Automated Quotation System (commonly known as "Nasdaq")).
For purposes of the Canadian Tax Act, all amounts must be expressed in
Canadian dollars, including dividends, adjusted cost base and proceeds of
disposition; amounts denominated in U.S. dollars must be converted into Canadian
dollars based on the currency exchange rate generally prevailing at the time
such amounts arise.
Dividends
Amounts in respect of common shares paid or credited or deemed to be paid
or credited as, on account or in lieu of payment of, or in satisfaction of,
dividends to a Non-Resident Holder will generally be subject to Canadian
non-resident withholding tax. Such withholding tax is levied at a basic rate of
25%, which may be reduced pursuant to the terms of an applicable tax treaty
between Canada and the country of residence of the Non-Resident Holder.
Currently, under the Convention, the rate of Canadian non-resident withholding
tax is 15% on the gross amount of dividends beneficially owned by a Non-Resident
Holder who is a resident of the United States for the purpose of the Convention
and whose common shares in respect of which the dividends are paid are not
effectively connected to a "permanent establishment" or "fixed base" in Canada.
However, under the Convention, where such a beneficial owner is a company which
owns at least 10% of the voting stock of Optimal, the rate of such withholding
is reduced to 5%. In the case of certain tax exempt entities which are residents
of the United States for purposes of the Convention, the withholding tax on
dividends may be eliminated in those circumstances prescribed by the Convention.
A purchase of common shares by Optimal (other than a purchase of common
shares by Optimal on the open market in the manner in which shares are normally
purchased by a member of the public) will give rise to a deemed dividend under
the Canadian Tax Act equal to the difference between the amount paid by Optimal
on the purchase
10
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and the paid-up capital of such shares determined in accordance with the
Canadian Tax Act. The paid-up capital of such shares may be less than the
Non-Resident Holder's cost of such shares. Any such dividend deemed to have been
received by a Non-Resident Holder will be subject to non-resident withholding
tax as described above. The amount of any such deemed dividend will reduce the
proceeds of disposition of the common shares to the Non-Resident Holder for
purposes of computing the amount of the Non-Resident Holder's capital gain or
loss under the Canadian Tax Act. However, as described below, a loss on the
disposition of the common shares may not be available to be used to offset
capital gains arising from the disposition of other property.
Disposition of Shares
A Non-Resident Holder will not be subject to tax under the Canadian Tax Act
in respect of any capital gain on a disposition or deemed disposition of common
shares (including the death of the Non-Resident Holder) unless at the time of
such disposition such shares constitute taxable Canadian property of the
Non-Resident Holder for purposes of the Canadian Tax Act and such Non-Resident
Holder is not entitled to relief under an applicable tax treaty. Provided the
common shares are listed on a prescribed stock exchange at the time of
disposition, such shares will generally not constitute taxable Canadian property
of a Non-Resident Holder at the time of a disposition of such shares unless the
Non-Resident Holder uses or holds or is deemed to use or hold such shares in or
in the course of carrying on business in Canada or, at any time during the
five-year period immediately preceding the disposition of such shares, not less
than 25% of the issued shares of any class or series of the capital of Optimal
belonged to the Non-Resident Holder, to persons with whom the Non-Resident
Holder did not deal at arm's length, or to the Non-Resident Holder and persons
with whom the Non-Resident Holder did not deal at arm's length (taking into
account any interest in or option in respect of such shares). In any event,
under the Convention, gains derived by a Non-Resident Holder who is a resident
of the United States (within the meaning of the Convention) from the disposition
of common shares will generally not be taxable in Canada unless the value of the
common shares is derived principally from real property situated in Canada. If
the common shares held by a Non-Resident Holder do not constitute taxable
Canadian property or if a capital gain in respect of the common shares would
because of a tax treaty be exempt from tax under the Canadian Tax Act, any
capital loss arising upon the disposition of the common shares will not be
available to be used to offset a capital gain realized in respect of another
property, which may be subject to tax under the Canadian Tax Act. To the extent
the common shares disposed of constitute taxable Canadian property, the
Non-Resident Holder will be required to file a Canadian tax return, even if the
gain arising from such a disposition is exempt from tax because of a tax treaty.
U.S. Federal Income Tax Considerations
The following is a general summary prepared by Goodman Phillips & Vineberg,
New York of the material U.S. federal income tax considerations applicable to an
investment in common shares by U.S. Holders. This summary is based on the U.S.
Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations
promulgated thereunder, and judicial and administrative interpretations thereof,
all as in effect on the date hereof and all of which are subject to change
(possibly on a retroactive basis) and to differing interpretations. The summary
does not address all aspects of U.S. federal income taxation that may be
relevant to a particular U.S. investor based on such investor's particular
circumstances. In particular, the following summary does not address the tax
treatment of U.S. investors who are broker-dealers or who own, directly,
indirectly or constructively, 10% or more of Optimal's outstanding voting stock,
and certain U.S. investors (including without limitation, insurance companies,
tax-exempt organizations, financial institutions, qualified retirement plans,
real estate investment trusts, regulated investment companies and persons
subject to the alternative minimum tax) who may be subject to special rules not
discussed below. For purposes of this discussion, "U.S. Holder" means an
individual citizen or resident of the United States, a corporation organized
under the laws of the United States or any political subdivision thereof, an
estate the income of which is includable in gross income for U.S. federal income
tax purposes regardless of its source, a trust if a court within the United
States is able to exercise supervision over the administration of the trust and
one or more U.S. persons have the authority to control all substantial decisions
of the trust, or any other U.S. person as defined under the Code or that is
otherwise subject to U.S. federal income tax on a net income basis in respect of
the common shares.
This summary is of a general nature only and is not intended to be, and
should not be construed to be, legal or tax advice to any prospective investor
and no representation with respect to the U.S. federal income tax consequences
to any particular investor is made. The summary does not address any aspect of
any state or local tax laws or the tax laws of jurisdictions outside the United
States or the tax considerations applicable to non-U.S. Holders. Accordingly,
prospective investors should consult with their own tax advisers for advice with
respect to the income tax consequences to them having regard to their own
particular circumstances, including any consequences
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<PAGE>
of an investment in common shares arising under any state or local tax laws or
the tax laws of jurisdictions outside the United States.
For U.S. federal income tax purposes, a U.S. Holder of common shares
generally will realize, to the extent of Optimal's current and accumulated
earnings and profits, ordinary income on the receipt of cash dividends on the
common shares equal to the dollar value of such dividends on the date of receipt
(based on the exchange rate on such date) without reduction for any Canadian
withholding tax. To the extent, if any, that distributions made by Optimal to a
U.S. Holder exceed the current and accumulated earnings and profits of Optimal,
such distribution will be treated as a tax-free return of capital to the extent
of such U.S. Holder's adjusted basis for such shares, and to the extent in
excess of adjusted basis, as capital gain. Dividends paid on the common shares
will not be eligible for the dividends received deduction available in certain
cases to U.S. corporations. Generally, in the case of foreign currency received
as a dividend that is not converted by the recipient into dollars on the date of
receipt, a U.S. Holder will have a tax basis in the foreign currency equal to
its dollar value on the date of receipt. Any gain or loss recognized upon a
subsequent sale or other disposition of the foreign currency, including an
exchange for dollars, will be ordinary income or loss.
Subject to certain requirements and limitations imposed by the Code, a U.S.
Holder may elect to claim the Canadian tax withheld or paid with respect to
dividends on the common shares either as a deduction or as a foreign tax credit
against the U.S. federal income tax liability of such U.S. Holder. In general, a
U.S. Holder may utilize foreign tax credits only to the extent its tax liability
results from including in taxable income its foreign source income, which would
include any dividends paid by Optimal but generally would not include any gain
realized upon a disposition of common shares. The requirements and limitations
imposed by the Code with respect to the foreign tax credit are complex and
beyond the scope of this summary, and consequently, prospective purchasers of
common shares should consult with their own advisers to determine whether and to
what extent they would be entitled to such credit.
For U.S. federal income tax purposes, upon a sale or exchange of common
shares, a U.S. Holder will recognize gain or loss equal to the difference
between the amount realized on such sale or exchange (or its U.S. dollar
equivalent, determined by reference to the spot rate of exchange on the date of
disposition, if the amount realized is denominated in a foreign currency) and
the tax basis of such common shares. Subject to the passive foreign investment
company rules discussed below, if the common shares are held as a capital asset,
any such gain or loss will be capital gain or loss, and will be long-term
capital gain or loss if the U.S. Holder has held such common shares for more
than one year. Moreover, any such gain or loss will generally be treated as U.S.
source income.
If, for any taxable year of Optimal, 75% or more of Optimal's gross income
consists of certain types of "passive" income or the average value during a
taxable year of "passive assets" (generally assets that produce or are held to
produce passive income) is 50% or more of the average value of all Optimal's
assets, Optimal would be treated as a "passive foreign investment company"
("PFIC") for such year and succeeding years with respect to such U.S. Holders
who were shareholders of Optimal during any taxable year in which Optimal was a
PFIC. If Optimal is treated as a PFIC, U.S. Holders who do not make a special
election to be taxed currently on their pro rata share of Optimal's income and
gains, whether or not distributed, will be subject to increased tax liability
upon the receipt of certain dividends or upon the sale or other disposition of
their common shares. Moreover, any gain upon the disposition by U.S. Holders of
their common shares will be characterized as ordinary income and taxed at
ordinary income rates. Although Optimal does not anticipate being classified as
a PFIC for U.S. federal income tax purposes, no assurance can be given as to its
current or future PFIC status. Accordingly, U.S. Holders are urged to consult
with their own tax advisers concerning the impact, if any, of the PFIC rules on
their investment in Optimal's common shares.
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PLAN OF DISTRIBUTION
Gerard Klauer and any of its pledges, assignees and successors-in-interest
may, from time to time, sell any or all of the common shares offered hereby on
any stock exchange, market or trading facility on which the common shares trade
or in private transactions. These sales may be at fixed or negotiated prices.
Gerard Klauer may use any one or more of the following methods when selling
shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell the
common shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o one or more broker-dealers may agree with Gerard Klauer to sell a
specified number of common shares at a stipulated price per share;
o a combination of any of the previously mentioned methods of sale; and
o any other method permitted pursuant to applicable law.
Gerard Klauer may also sell shares under Rule 144 under the Securities Act
of 1933, as amended (the "Securities Act"), if available, rather than under this
prospectus.
Gerard Klauer may also engage in short sales against the box, puts and
calls and other transactions in securities of the Company or derivatives of
these securities and may sell and deliver common shares in connection with these
transactions. Gerard Klauer may pledge their common shares to brokers pursuant
to the margin provisions of customer agreements. If Gerard Klauer defaults on a
margin loan, the broker may, from time to time, offer and sell the pledged
common shares.
Gerard Klauer may arrange for other broker-dealers to participate in sales.
Broker-dealers may receive commissions or discounts from Gerard Klauer (or from
the purchaser if any broker-dealer acts as agent for the purchaser of common
shares) in amounts to be negotiated. Gerard Klauer does not expect these
commissions and discounts to exceed what is customary in the types of
transactions involved.
Gerard Klauer is an underwriter with respect to the 12,820 common shares
underlying the warrants that it purchased from other investors. Gerard Klauer
and any broker-dealers or agents that sell the common shares may be deemed to be
underwriters within the meaning of the Securities Act in connection with the
sales of the remaining 240,600 shares hereunder. To the extent that Gerard
Klauer and any other broker-dealers are deemed to be underwriters, commissions
received by the broker-dealers or agents and any profit on the resale of the
common shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act.
The registration statement of which this prospectus is a part was filed by
the Company at the request of Gerard Klauer pursuant to the registration rights
provided for in the warrant granted by the Company to Gerard Klauer when it
acted as lead underwriter for the Company's initial public offering. As required
by that agreement, the Company is bearing all the expenses of registering the
common shares being offered by Gerard Klauer except for any underwriting
discounts or sales commissions payable upon sale of the common shares and the
Company will indemnify Gerard Klauer against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act.
The Company has not registered the common shares for sale under the
securities laws of any state or other political subdivision of the United
States. Brokers or dealers effecting transactions in the common shares should
confirm the registration thereof under the securities laws of the states in
which these transactions occur, or the existence of any exemption from
registration.
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LEGAL MATTERS
Certain legal matters in connection with the common shares have been passed
upon for us by Goodman Phillips & Vineberg, Montreal, Quebec. Leon P. Garfinkle,
a partner in Goodman Phillips & Vineberg, is a director of Optimal.
EXPERTS
The financial statements incorporated by reference in this prospectus as of
December 31, 1999 and 1998 and for each of the years ended December 31, 1999,
1998 and 1997 have been audited by PricewaterhouseCoopers LLP, Chartered
Accountants in Canada, and are included in reliance upon such reports given upon
the authority of PricewaterhouseCoopers LLP as experts in auditing and
accounting.
14
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- --------------------------------------------------------------------------------
You may rely only on the information contained in this prospectus. We have not
authorized anyone to provide information different from that contained in this
prospectus. Neither the delivery of this prospectus nor the sale of common
shares means that information contained in this prospectus is correct after the
date of this prospectus. This prospectus is not an offer to sell or solicitation
of an offer to buy these common shares in any circumstances under which the
offer or solicitation is unlawful.
TABLE OF CONTENTS
Page
PROSPECTUS SUMMARY...................... 1
RISK FACTORS............................ 3
USE OF PROCEEDS......................... 7
SELLING SHAREHOLDER..................... 7
DESCRIPTION OF SHARE CAPITAL............ 8
CERTAIN CANADIAN AND UNITED
STATES INCOME TAX CONSIDERATIONS.... 10
PLAN OF DISTRIBUTION................... 13
LEGAL MATTERS.......................... 14
EXPERTS................................ 14
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253,420 Shares
Common Shares
PROSPECTUS
March 17, 2000
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses payable by the registrant in connection with the
issuance and distribution of the securities being registered are as follows:
SEC Registration Fee........................... $ 2,153.44
Accounting Fees and Expenses................... $ 9,000.00
Legal Fees and Expenses........................ $ 15,000.00
Miscellaneous Expenses......................... $ 10,000.00
-----------
Total...................................... $ 36,153.44
===========
Item 15. Indemnification of Directors and Officers
The Company's By-laws provide the following:
Subject to the provisions of the Canada Business Corporations Act ("CBCA"),
every director and officer of the Company (including those who have acted at the
Company's request as an officer or director of a body corporate of which the
Company is or was a shareholder or creditor) and his heirs and legal
representatives shall from time to time be indemnified and saved harmless by the
Company from and against all costs, charges and expenses reasonably incurred by
him in respect of any civil, criminal or administrative action or proceeding to
which he is made a party by reason of being or having been a director or officer
of the Company or such body corporate (including without limitation all losses,
liabilities, costs, charges and expenses incurred by him in respect of any act
or proceeding for the recovery of claims of employees or former employees of the
Company or such body corporate or in respect of any claim based upon the failure
of the Company to deduct, withhold, remit or pay any amount for taxes,
assessments and other charges of any nature whatsoever as required by law), if
(a) he acted honestly and in good faith with a view to the best interests
of the Company; and
(b) in the case of a criminal or administrative action or proceeding that
is enforced by a monetary penalty, he had reasonable grounds for
believing that his conduct was lawful.
The By-laws also contain a provision eliminating the liability of directors
or officers for losses, damages or other misfortunes of the Company arising out
of the execution of the duties of his office or in relation thereto, unless
occasioned by his own wilful neglect or default (subject to compliance with the
mandatory obligations and duties imposed by the CBCA and the regulations
thereunder and the liability imposed for any breach thereof).
The Company shall also indemnify such person in such other circumstances as
the CBCA may require.
Item 16. Exhibits
Exhibit
Number Exhibit
4 Specimen certificate of the common shares
5 Opinion of Goodman Phillips & Vineberg
21 Subsidiaries
23.1 Consent of Goodman Phillips & Vineberg (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of CT Corporation
24.1 Power of attorney (included on the signature page of
the registration statement)
Item 17. Undertakings
(a) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that that in the opinion of the Securities and
Exchange
II-1
<PAGE>
Commission such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(b) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
provided, however, that paragraphs
(i) and (ii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) To file a post-effective amendment to the registration statement to
include any financial statements required by Rule 3-19 of this chapter
at the start of any delayed offering or throughout a continuous
offering. Financial statements and information otherwise required by
Section 10(a)(3) of the Act need not be furnished, provided, that the
registrant includes in the prospectus by means of a post-effective
amendment, financial statements required pursuant to this paragraph
(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of
those financial statements. Notwithstanding the foregoing, a
post-effective amendment need not be filed to include financial
statements and information required by Section 10(a)(3) of the Act or
Rule 3-19 of this chapter if such financial statements and information
are contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference into this registration statement.
(c) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference
II-2
<PAGE>
in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets the
requirements for filing on Form F-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Montreal, Province of Quebec, on the 15th day of
March, 2000.
OPTIMAL ROBOTICS CORP.
(Registrant)
By: /s/ Holden L. Ostrin
--------------------
Holden L. Ostrin
Co-Chairman
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
* Director (Principal Executive March 15, 2000
- ------------------------------ Officer)
Neil S. Wechsler
/s/ Holden L. Ostrin Director March 15, 2000
- -----------------------------
Holden L. Ostrin
* Director March 15, 2000
- ------------------------------
Henry M. Karp
* Director March 15, 2000
- ------------------------------
Leon P. Garfinkle
* Director (Authorized March 15, 2000
- ------------------------------ Representative in the United States)
James S. Gertler
* Principal Financial and March 15, 2000
- ------------------------------ Accounting Officer
Gary S. Wechsler
* By: /s/ Holden L. Ostrin
------------------------------
Holden L. Ostrin
Under Power-of-Attorney
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
Exhibit
Number Exhibit
------- -------
4 Specimen certificate of the common shares (incorporated by
reference to Exhibit 1.1 to the Company's Registration Statement
on Form 8, File No. 0-28572, filed with the Commission on July
17, 1996)
5 Opinion of Goodman Phillips & Vineberg*
21 Subsidiaries*
23.1 Consent of Goodman Phillips & Vineberg (included in Exhibit 5)*
23.2 Consent of PricewaterhouseCoopers LLP**
23.3 Consent of CT Corporation*
24.1 Power of attorney (included on the signature page of the
registration statement)*
* Previously filed
** Supercedes previously filed Exhibit 23.2
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We hereby consent to the incorporation by reference in the prospectus
constituting part of Amendment No. 1 to this Registration Statement on Form F-3
(file no. 333-95275) of our report dated February 4, 2000 relating to the
financial statements which appear in Optimal Robotics Corp.'s Annual Report on
Form 10-K for the year ended December 31, 1999. We also consent to the reference
to us under the heading "Experts" in such prospectus.
/s/ PricewaterhouseCoopers LLP
Montreal, Quebec, Canada
March 15, 2000
