(Name, Address and Telephone Number of Persons Authorized to
Receive Notices and Communications on Behalf of Person(s) Filing Statement)
This statement is filed in connection with (check the appropriate box):
a. þ The filing of solicitation materials or an information statement subject to
Regulation 14A, Regulation 14C or Rule 13e-(c) under the Securities Exchange Act of 1934.
b. o The filing of a registration statement under the Securities Act of 1933.
c. o A tender offer.
d. o None of the above.
Check the following box if the soliciting materials or information statement referred to in
checking box (a) are preliminary copies: þ
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**
$10,973,006.68
$431.24
*
For purposes of calculating the amount of the filing fee only.
**
The filing fee was determined by adding (a) the product of the 6,525,672 shares of common stock
that will be exchanged for cash in the transaction multiplied by the merger consideration of
US$1.68 per share, (b) the consideration expected to be paid to the holders of each of the 957,889
shares of common stock options outstanding in which the exercise price per share is less than
US$1.68 per share, and (c) the consideration expected to be paid to the holders of each of the
24,999 shares of common stock warrants outstanding in which the exercise price per share is less
than US$1.68 per share. The payment of the filing fee, calculated in accordance with Rule 0-11 of
the Securities Exchange Act of 1934, as amended, was calculated by multiplying the Total
Consideration by 0.0000393.
þ
Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the
filing with which the offsetting fee was previously paid. Identify the previous filing by
registration statement number, or the form or schedule and the date of its filing.
Amount Previously Paid: $431.24
Form or Registration No.: Schedule 14A—Preliminary Proxy Statement
Filing Parties: Atari, Inc.
Date Filed: June 17, 2008
This
Amendment No. 3, which amends and restates the Rule 13e-3
Transaction Statement on Schedule 13E-3 filed with the
Securities and Exchange Commission on June 17, 2008, as amended
by Amendments No. 1 and No. 2 to Schedule 13E-3 (this
“Schedule 13E-3”), is being filed
by (1) Atari, Inc., a Delaware corporation (the “Company”), the issuer of the common stock, par
value $0.10 per share (the “Common Stock”), that is subject to the Rule 13e-3 transaction, (2)
Infogrames Entertainment S.A., a French Société Anonyme
(“Parent”), (3) California U.S. Holdings, Inc., a
California Corporation (“CUSH”), a wholly owned subsidiary
of Parent, and (4) Irata Acquisition
Corp., a Delaware corporation and an indirect wholly owned subsidiary of Parent (“Merger Sub”).
This Schedule 13E-3 relates to the Agreement and Plan of Merger, dated as of April 30, 2008 (the
“Merger Agreement”), by and among the Company, Parent, and Merger Sub. Pursuant to the terms of
the Merger Agreement, Merger Sub will merge with and into the Company and the Company will become
an indirect wholly owned subsidiary of Parent (the “Merger”) and upon completion of the Merger,
each outstanding share of Common Stock (other than shares held in treasury, shares owned by Parent
or Merger Sub, and shares held by stockholders who perfect appraisal rights in accordance with
Delaware law), will be converted into the right to receive $1.68 in cash, without interest and less
any applicable withholding taxes.
Concurrently with the filing of this Schedule 13E-3, the Company is filing with the Securities
and Exchange Commission a definitive proxy statement (the “Proxy Statement”) under Regulation 14A
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), relating to a special
meeting of the stockholders of the Company at which the stockholders of the Company will consider
and vote upon a proposal to adopt the Merger Agreement. The stockholder vote required for the
adoption of the Merger Agreement is the affirmative vote of at least a majority of the Company’s
outstanding Common Stock entitled to vote on the merger. Infogrames and its affiliates control
51.6% of the outstanding voting securities of Atari, which is sufficient to adopt and approve the
merger and the merger agreement.
The cross-references below are being supplied pursuant to General Instruction G to Schedule
13E-3 and show the location in the Proxy Statement of the information required to be included in
response to the items of Schedule 13E-3. The information contained in the Proxy Statement,
including all annexes thereto, is incorporated in its entirety herein by this reference, and the
responses to each item in this Schedule 13E-3 are qualified in their entirety by the information
contained in the Proxy Statement. Capitalized terms used but not defined in this
Schedule 13E-3 shall have the meanings given to them in the Proxy Statement.
All information contained in this Schedule 13E-3 concerning any of the Filing Parties has been
provided by such Filing Parties, and no Filing Party has produced any disclosure with respect to any other Filing Party.
The filing of this Schedule 13E-3 shall not be construed as an admission by any Filing Party
or by any affiliate of a Filing Party, that the Company is “controlled” by any other Filing Party,
or that any other Filing Party is an “affiliate” of the Company within the meaning of Rule 13e-3
under Section 13(e) of the Exchange Act.
Item 1. Summary Term Sheet
Regulation M-A Item 1001
The information set forth in the Proxy Statement under the following captions is incorporated
herein by reference:
“Summary Term Sheet”
“Questions
and Answers About the Special Meeting and Merger”
Item 2. Subject Company Information
Regulation M-A Item 1002
(a) The Company’s name and the address and telephone number of its principal executive office
are as follows:
(b)-(d) The information set forth in the Proxy Statement under the caption “Market Price and
Dividend Information” is incorporated herein by reference.
(e)-(f) The information set forth in the Proxy Statement under the caption “Prior Public
Offerings and Stock Purchases” is incorporated herein by reference.
“Questions
and Answers About the Special Meeting and Merger”
“The Special Meeting—Required Vote and Voting Rights”
“Special Factors—Structure of the Transaction”
“Special Factors—Background of the Merger”
“Special Factors—Purposes for the Merger”
“Special Factors—Atari’s Reasons for the Merger; Recommendations of the Special Committee and
the Atari Board of Directors”
“Special
Factors—Position of the Infogrames Parties as to the Fairness of the Merger to Atari’s
Unaffiliated Stockholders; Intent of Infogrames to Vote in Favor of the Merger Transaction”
“Special Factors—Certain Effects of the Merger”
“Special Factors—Material United States Federal Income Tax Consequences”
“Annex C—Section 262 of the General Corporation Law of the State of Delaware”
(e) No provision has been made to grant to unaffiliated stockholders access to the corporate
files of the Company, any other party to the proposed Merger or any of their respective affiliates
or to obtain counsel or appraisal services at the expense of the Company or any other such party or
affiliate.
(f) Not applicable.
Item 5. Past Contacts, Transactions, Negotiations and Agreements
“Questions and Answers About The Special Meeting and Merger”
“Special Factors—Background of the Merger”
“Special Factors—Purposes for the Merger”
“Special Factors—Atari’s Reasons for the Merger; Recommendations of the Special Committee and
the Atari Board of Directors”
“Special
Factors—Position of the Infogrames Parties as to the Fairness of the Merger to Atari’s
Unaffiliated Stockholders; Intent of Infogrames to Vote in Favor of the Merger Transaction”
“Special Factors—Alternatives to the Merger”
“Special Factors—Certain Effects of the Merger”
“Special Factors—Plans for Atari if the Merger is Not Completed”
“Questions
and Answers About the Special Meeting and Merger”
“Special Factors—Atari’s Reasons for the Merger; Recommendations of the Special Committee and
the Atari Board of Directors”
“Special
Factors—Position of the Infogrames Parties as to the Fairness of the Merger to Atari’s
Unaffiliated Stockholders; Intent of Infogrames to Vote in Favor of the Merger Transaction”
“Special Factors—Opinion of the Financial Advisor to the Special Committee of the Board of
Directors”
“Special Factors—Financial Analyses”
“Special Factors—Summary of Presentation by the Financial Advisor to Infogrames”
“Special Factors—Opinion of the Financial Advisor to the Special Committee of the Board of
Directors”
“Special
Factors—Summary of Presentation by the Financial Advisor to
Infogrames”
“Annex B—Opinion of Duff & Phelps”
The
information set forth in the Duff & Phelps, LLC
Presentation of April 28, 2008, attached as Exhibit (c)(2) hereto, the Duff &
Phelps, LLC Preliminary Presentation of March 19, 2008, attached as Exhibit (c)(3) hereto, the Lazard Frères
SAS Presentation of March 2, 2008, attached as Exhibit (c)(4)
hereto, the Information prepared by Lazard Frères SAS for inclusion in the April 24, 2008
Presentation by Infogrames Management to the Infogrames Board of
Directors, attached as Exhibit (c)(5) hereto, and the
Ocean Tomo Intellectual Capital Equity Report of December 2006, attached as Exhibit (c)(6) hereto, is
incorporated by reference.
Item 10. Source and Amounts of Funds or Other Consideration
(a)(2) Form of Proxy Card, filed with the Securities and Exchange Commission
along with the Proxy Statement (incorporated herein by reference to
the Definitive Schedule 14A filed on September 5, 2008).
(c)(1) Opinion of Duff & Phelps, attached as Annex B to the Proxy Statement (incorporated
herein by reference to the Definitive Schedule 14A filed on
September 5, 2008).
(c)(2) Duff & Phelps, LLC Presentation of April 28, 2008.
(c)(3) Duff & Phelps, LLC Preliminary Presentation of March 19, 2008.
(c)(4) Lazard
Frères SAS Presentation of March 2, 2008.
(c)(5) Information prepared by Lazard Frères SAS for inclusion in the April 24, 2008
Presentation by Infogrames Management to the Infogrames Board of Directors.
(c)(6) Ocean Tomo Intellectual Capital Equity Report of December 2006.
(d)(1) Agreement and Plan of Merger, dated as of April 30, 2008, by and among the Atari,
Inc., Infogrames Entertainment S.A., and Irata Acquisition Corp., attached as Annex A to the Proxy
Statement (incorporated herein by reference to the Definitive
Schedule 14A filed on September 5,2008).
(d)(4) Temporary Liquidity Facility Intercreditor Agreement, dated as of April 30, 2008 by and
among Atari, Inc., BlueBay High Yield Investments (Luxembourg) S.A.R.L., as Agent for the Secured
Parties (as defined therein) under the BlueBay Credit Agreement (as defined therein), and
Infogrames Entertainment S.A. (incorporated herein by reference to Exhibit 10.2 to the Issuer’s
Current Report on Form 8-K dated April 30, 2008 and filed on May 5, 2008).
(a)(2) Form of Proxy Card, filed with the Securities and Exchange Commission
along with the Proxy Statement (incorporated herein by reference to
the Definitive Schedule 14A filed on September 5, 2008).
(c)(1) Opinion of Duff & Phelps, attached as Annex B to the Proxy Statement (incorporated
herein by reference to the Definitive Schedule 14A filed on
September 5, 2008).
(c)(2) Duff & Phelps, LLC Presentation of April 28, 2008.
(c)(3) Duff & Phelps, LLC Preliminary Presentation of March 19, 2008.
(c)(4) Lazard
Frères SAS Presentation of March 2, 2008.
(c)(5) Information prepared by Lazard Frères SAS for inclusion in the April 24, 2008
Presentation by Infogrames Management to the Infogrames Board of Directors.
(c)(6) Ocean Tomo Intellectual Capital Equity Report of December 2006.
(d)(1) Agreement and Plan of Merger, dated as of April 30, 2008, by and among the Atari,
Inc., Infogrames Entertainment S.A., and Irata Acquisition Corp., attached as Annex A to the Proxy
Statement (incorporated herein by reference to the Definitive Schedule 14A filed on September 5,2008).
(d)(4) Temporary Liquidity Facility Intercreditor Agreement, dated as of April 30, 2008 by and
among Atari, Inc., BlueBay High Yield Investments (Luxembourg) S.A.R.L., as Agent for the Secured
Parties (as defined therein) under the BlueBay Credit Agreement (as defined therein), and
Infogrames Entertainment S.A. (incorporated herein by reference to Exhibit 10.2 to the Issuer’s
Current Report on Form 8-K dated April 30, 2008 and filed on May 5, 2008).
(d)(7) Form 10-Q for the quarterly period ended June 30, 2008 (incorporated by
reference to the Form 10-Q filed by the Company on August 8, 2008).
(f) Section 262 of the Delaware General Corporation Law, attached as Annex C to the Proxy
Statement (incorporated herein by reference to the Definitive Schedule 14A filed on September 5,2008).
(g) None.
Dates Referenced Herein and Documents Incorporated by Reference