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. 3)
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MICROCELL TELECOMMUNICATIONS INC.
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(Name of Subject Company (Issuer))
ROGERS WIRELESS INC.
ROGERS WIRELESS COMMUNICATIONS INC.
ROGERS 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. 3 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.
<page>
ITEM 4. TERMS OF THE TRANSACTION
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 (other than any
intentional 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 (other than any intentional 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 paragraph on page 22 of the Offers to Purchase and Circular is
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. For purposes of the Exchange
Act, a Subsequent Offering Period is an additional period of time
beginning on the day after the Expiry Time during which
Securityholders may deposit Shares or Warrants not deposited during
such Offer. For purposes of applicable Canadian securities laws, a
Subsequent Offering Period is an additional period of time by which
the applicable Offer is extended, following the satisfaction or
waiver of all conditions of such Offer and the take-up of all Shares
or Warrants then deposited under such Offer, and during which period
Securityholders may deposit Shares or Warrants not deposited prior
to the commencement of the Subsequent Offering Period with respect
to such Offer. The Offeror does not currently intend to include a
Subsequent Offering Period with respect to any of the Offers,
although it reserves the right to do so in its sole discretion. If
the Offeror elects to include a Subsequent Offering Period with
respect to an Offer, for purposes of applicable United States
federal securities laws, it will include a statement of its
intention to do so in the press release announcing the results of
such Offer disseminated no later than 9:00 a.m., Toronto time, on
the next business day after the previously scheduled Expiry Time.
For purposes of applicable Canadian securities laws, the Offeror
will provide a written notice of extension of such Offer with
respect to the implementation of the Subsequent Offering Period,
including the period during which such Offer will be open for
acceptance, to the Depositary and will cause the Depositary to
provide as soon as practicable thereafter a copy of such notice in
the manner set forth in Section 11 of the Offers to Purchase,
"Notices and Delivery" to all holders of Shares or Warrants that
have not been taken up pursuant to the applicable Offer at the date
of the extension. The same form and amount of consideration will be
paid to holders depositing Shares or Warrants during the Subsequent
Offering Period, if one is included, as would have been paid prior
to the commencement of such period. Notwithstanding the provisions
of United States federal securities laws relating to subsequent
offering periods, the Offeror will permit withdrawal of deposited
Shares or Warrants during any Subsequent Offering Period, if there
is one, at any time prior to the Expiry Time of such Subsequent
Offering Period. Withdrawing holders of Securities who have
deposited such Securities during the Subsequent Offering Period and
have received payment for such Securities must return such payment
to the Offeror prior to any withdrawal. Subject to the following
sentence, the Expiry Time with respect to a subsequent Offer shall
be 9:00 p.m., Toronto time, on the last day of the Subsequent
Offering Period, unless determined otherwise pursuant to the
provisions of this Section 5. The foregoing sentence will not limit
the requirement that the conditions to the Offers set forth in
Section 4 of the Offers to Purchase, "Conditions of the Offers", be
satisfied or waived prior to the initial Expiry Time, which will be
before the commencement of the Subsequent Offering Period. If the
consideration being offered for the Shares or Warrants under an
Offer is increased, the increased consideration will be paid to all
depositing holders of Shares or Warrants whose Shares or Warrants
are taken up under the Offer without regard to when such Shares or
Warrants are taken up under the Offer by the Offeror."
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 the Expiry Time
of such Subsequent Offering Period. Withdrawing holders of
Securities who have deposited such Securities during the Subsequent
Offering Period and have received payment for such Securities must
return such payment to the Offeror prior to any withdrawal."
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; provided, however, that
this right of withdrawal will not apply in respect of Securities
taken up by the Offeror prior to the Subsequent Offering Period;"
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 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."
SIGNATURES
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 19, 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
------------------------------------------
Name: Graeme McPhail
Title: Vice President, Associate General Counsel
ROGERS COMMUNICATIONS INC.
By: /s/ Graeme McPhail
------------------------------------------
Name: Graeme McPhail
Title: Vice President, Associate General Counsel