SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE TO
(RULE 14D-100)
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
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MICROCELL TELECOMMUNICATIONS INC.
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(Name of Subject Company (Issuer))
ROGERS WIRELESS INC.
ROGERS WIRELESS COMMUNICATIONS INC.
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(Name of Filing Persons, Offerors)
CLASS A RESTRICTED VOTING SHARES
CLASS B NON-VOTING SHARES
WARRANTS 2005
WARRANTS 2008
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(Title of Classes of Securities)
59501T882
59501T874
59501T163
59501T171
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(CUSIP Numbers of Class of Securities)
DAVID P. MILLER, ESQ.
ROGERS WIRELESS INC.
ONE MOUNT PLEASANT ROAD, 16TH FLOOR
TORONTO, ONTARIO M4Y 2Y5
CANADA
(416) 935-1100
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
John T. Gaffney, Esq.
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
(212) 474-1000
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This Amendment No. 1 amends and supplements the Tender Offer
Statement on Schedule TO filed with the U.S. Securities and Exchange
Commission on September 30, 2004 (as amended, the "Schedule TO"), relating to
the offers (collectively, the "Offers") by Rogers Wireless Inc. (the
"Offeror"), a corporation incorporated under the Canada Business Corporations
Act (the "CBCA") and a wholly-owned subsidiary of Rogers Wireless
Communications Inc. (the "Parent"), a corporation incorporated under the CBCA,
to purchase all of the issued and outstanding class A restricted voting shares
(the "Class A Shares"), class B non-voting shares (the "Class B Shares" and,
collectively with the Class A Shares, together with the associated Rights, the
"Shares," including Shares issuable upon the exercise of outstanding options,
warrants or other conversion or exchange rights other than the Rights and the
Warrants), Warrants 2005 (the "Warrants 2005") and Warrants 2008 (the
"Warrants 2008" and, collectively with the Warrants 2005, the "Warrants," and
together with the Shares, the "Securities"), of Microcell Telecommunications
Inc. (the "Company"), a corporation incorporated under the CBCA, at a purchase
price of Cdn.$35.00 per Class A Share, Cdn.$35.00 per Class B Share,
Cdn.$15.79 per Warrant 2005 and Cdn.$15.01 per Warrant 2008, in each case, net
to the seller in cash, without interest, upon the terms and subject to the
conditions set forth in the Offers to Purchase and Circular, dated September
30, 2004, and the related Letters of Acceptance and Transmittal (which,
together with any amendments or supplements thereto, collectively, constitute
the "Offering Materials").
Capitalized terms used herein and not defined herein have the
respective meanings assigned to such terms in the Offers to Purchase and
Circular.
ITEM 4. TERMS OF THE TRANSACTION
The Glossary to the Offers to Purchase and Circular is hereby amended by
adding the following definition on page 12 of the Offers to Purchase and
Circular after the definition of "Support Agreement":
"TAKE UP", in reference to Securities, means to accept such
Securities for payment by giving written notice of such acceptance to
the Depositary. "TAKING UP" and "TAKEN UP" have correlative meanings.
The first sentence in the second paragraph on page 19 of the Offers to
Purchase and Circular is hereby amended and restated in its entirety as
follows:
"The foregoing conditions are for the exclusive benefit of the
Offeror and may be asserted by the Offeror regardless of the
circumstances giving rise to such assertion, including any
unintentional action or inaction by the Offeror, or, subject to the
terms of the Support Agreement, may be waived by the Offeror in
whole or in part, at any time and from time to time, prior to the
Expiry Time without prejudice to any other rights which the Offeror
may have."
The first sentence in the second paragraph on page 20 of the Offers to
Purchase and Circular under the caption "Conditions of the Class B Offer and
the Warrant Offers" is hereby amended and restated in its entirety as follows:
"The foregoing condition to the Class B Offer and Warrant Offers is
for the exclusive benefit of the Offeror and may be asserted by the
Offeror regardless of the circumstances giving rise to such
assertion, including any unintentional action or inaction by the
Offeror, or, subject to the terms of the Support Agreement, may be
waived by the Offeror in whole or in part, at any time and from time
to time, prior to the Expiry Time without prejudice to any other
rights which the Offeror may have."
The last sentence of the first paragraph on page 21 of the Offers to Purchase
and Circular is hereby amended and restated in its entirety as follows:
"Notwithstanding the foregoing, but subject to applicable law, in
the event all of the terms and conditions of the Offer, except those
waived by the Offeror, have been fulfilled or complied with, the
Offeror may not extend such Offer past the then current Expiry Time
unless the Offeror first takes up all Shares or Warrants validly
deposited under such Offer and not withdrawn. Any such extension
would be a Subsequent Offering Period."
The first sentence of the second paragraph on page 22 of the Offers to
Purchase and Circular is hereby amended and restated in its entirety as
follows:
"A Subsequent Offering Period, if one is included, does not
constitute an extension of the applicable Offer for purposes of the
Exchange Act, although it does constitute an extension of the
applicable Offer under Canadian securities laws. Under Canadian
securities laws, in order for the Offeror to take up and pay for
additional Securities deposited after the initial Expiry Time, the
Offeror must either (i) extend such Offer in accordance with
Canadian securities laws (which extension would be treated as a
Subsequent Offering Period in the United States) or (ii) initiate a
new offer in respect of such Securities, which new offer could not
be consummated for at least 35 days."
Subparagraph (a) on page 23 of the Offers to Purchase and Circular is amended
and restated in its entirety as follows:
"(a) at any time before the Securities have been taken up by the
Offeror;"
Subparagraph (b) on page 23 of the Offers to Purchase and Circular is amended
and restated in its entirety as follows:
"(b) during a Subsequent Offering Period, at any time before the
expiration of ten days from the date of a notice of change or
variation to one or more of the Offers; provided, however, that this
right of withdrawal will not apply (i) in respect of Securities
taken up by the Offeror prior to the Subsequent Offering Period,
(ii) where a variation of the terms of one or more of the Offers
consists solely of an increase in the consideration offered for the
Securities and the period during which Securities may be deposited
pursuant to the Offer(s) is not extended for more than ten days, or
(iii) where a variation of the terms of one or more of the Offers
consists solely of the waiver of a condition to such Offer(s) and
such waiver does not require an extension of the Subsequent Offering
Period under applicable laws;"
The third paragraph on page 24 of the Offers to Purchase and Circular is
hereby amended and restated in its entirety as follows:
"Notwithstanding the provisions of United States federal securities
laws relating to subsequent offering periods, the Offeror will
permit withdrawal of deposited Securities during any Subsequent
Offering Period, if there is one, at any time prior to such
Securities being taken up by the Offeror. When all the terms and
conditions of the Offers have been complied with or waived, the
Offeror will forthwith notify the TSX and issue a press release over
the Dow Jones News Wire Service to that effect, which press release
will disclose the approximate number of Securities deposited in the
Offers and the approximate number that will be taken up."
The last paragraph on page 27 of the Offers to Purchase and Circular is hereby
amended and restated in its entirety as follows:
"The Offers and all contracts resulting from the acceptance of the
Offers shall be governed by and construed in accordance with the
laws of the Province of Ontario and the federal laws of Canada
applicable therein. Each party to any agreement resulting from the
acceptance of the Offers unconditionally and irrevocably attorns to
the exclusive jurisdiction of the courts of the Province of Ontario.
The foregoing shall not restrict the applicability to the Offers of
the securities laws of the United States or any other applicable
jurisdiction. However, Securityholders should be aware that the
enforcement by Securityholders of civil liabilities under United
States federal securities laws may be affected adversely by the fact
that the Offeror is governed by the laws of Canada, that the
majority of its officers and directors reside outside the United
States, that some of the Dealer Managers or experts named in the
Offers to Purchase and Circular reside outside the United States and
that all or a substantial portion of the assets of the Offeror and
said persons may be located outside the United States.
Securityholders may not be able to sue a foreign company or its
officers or directors in a foreign court for violations of United
States federal securities laws. It may be difficult to compel a
foreign company and its affiliates to subject themselves to a U.S.
court's judgment."
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The following sentences are hereby added to the end of the first paragraph of
Section 8 of the Circular "Source of Funds" on page 43 of the Offers to
Purchase and Circular:
"RCI intends to fund the Bridge Loan of up to $900 million using (i)
cash on hand, (ii) cash to be received in the form of a return of
capital from Rogers Cable Inc., a corporation governed by the
Business Corporations Act (Ontario) and a wholly owned subsidiary of
RCI and (iii) cash to be received in the form of a partial repayment
of an intercompany advance made to Rogers Media Inc., a corporation
governed by the Business Corporations Act (British Columbia) and a
wholly owned subsidiary of RCI. Each of Rogers Cable Inc. and Rogers
Media Inc. will make draw downs under their committed bank credit
facilities to fund the cash transfers to RCI."
SIGNATURE
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.
Date: October 7, 2004
ROGERS WIRELESS INC.
By: /s/ Graeme McPhail
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Name: Graeme McPhail
Title: Vice President, Associate General
Counsel
ROGERS WIRELESS COMMUNICATIONS INC.
By: /s/ Graeme McPhail
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Name: Graeme McPhail
Title: Vice President, Associate General
Counsel