CRAVATH, SWAINE & MOORE LLP
WORLDWIDE PLAZA
825 EIGHTH AVENUE
NEW YORK, NY 10019
Telephone: (212) 474-1000
Facsimile: (212) 474-3700
Writer's Direct Dial Number:
(212) 474-1122
CONFIDENTIAL TREATMENT
REQUESTED UNDER FOIA RULE 83
October 19, 2004
MICROCELL TELECOMMUNICATIONS INC.
SCHEDULE TO-T/A FILED OCTOBER 7, 2004 BY ROGERS WIRELESS INC.
AND ROGERS WIRELESS COMMUNICATIONS INC.
FILE NO. 5-58635
Dear Ms. Chalk:
On behalf of Rogers Wireless Inc., a Canadian corporation ("RWI"),
and Rogers Wireless Communications Inc. ("RWCI"), a Canadian corporation and
the sole shareholder of RWI, this letter responds to your letter dated October
14, 2004 (the "Comment Letter"), providing comments on RWI's and RWCI's
Schedule TO filed on September 30, 2004 and amended on October 7, 2004 and
October 14, 2004 (as amended, the "Schedule TO"). For your convenience, each
comment from the Comment Letter has been reproduced below, followed by our
response to such comment. Capitalized terms defined in the Schedule TO and
used in the following responses without definition have the meanings specified
in the Schedule TO.
1. REFER TO COMMENT 2 IN OUR OCTOBER 5, 2004 COMMENT LETTER, AND YOUR
RESPONSE. WE CONTINUE TO BELIEVE THAT RCI SHOULD BE INCLUDED AS A BIDDER
IN THIS TENDER OFFER. THE FOLLOWING FACTS SUPPORT OUR DETERMINATION WITH
RESPECT TO RCI:
(A) RCI IS THE ULTIMATE CONTROL PERSON OF THE EXISTING BIDDERS IN THE
OFFERS AND NINE OF THE TWELVE BOARD MEMBERS OF RWCI ARE RCI
AFFILIATES;
(B) RCI WAS INVOLVED IN THE INITIAL CONTACTS WITH MICROCELL, AND IN THE
ENSUING NEGOTIATIONS DURING WHICH THIS TRANSACTION WAS NEGOTIATED
AND STRUCTURED. IN FACT, AS YOU POINT OUT, RCI IS A PARTY TO A
CONFIDENTIALITY AGREEMENT WITH MICROCELL WITH RESPECT TO INFORMATION
PROVIDED BY THE COMPANY DURING THE NEGOTIATIONS LEADING UP TO THE
OFFERS;
(C) RCI APPROVED THE TERMS OF THE OFFERS AND THE SUPPORT AGREEMENT; AND
(D) RCI WILL PROVIDE A LOAN OF UP TO $900 MILLION TO FUND THE OFFERS.
<page>
2
PLEASE AMEND THE SCHEDULE TO TO INCLUDE ALL OF THE DISCLOSURE
REQUIRED AS TO A BIDDER. INDICATE IN YOUR RESPONSE LETTER HOW YOU
INTEND TO DISSEMINATE THIS INFORMATION.
Rogers Communications Inc. ("RCI") will be added as a filing person and
signatory on all future Schedule TO amendments. As previously discussed with
you, the disclosure required as to RCI in such capacity is already included in
the Offers to Purchase and Circular.
2. REFER AGAIN TO COMMENT 2 IN OUR PRIOR COMMENT LETTER. WE DISAGREE WITH
YOUR CONCLUSION THAT NO INFORMATION WITH RESPECT TO AT&T WIRELESS AND
JVII IS REQUIRED UNDER GENERAL INSTRUCTION C TO SCHEDULE TO. WE HAVE
NEVER INTERPRETED THE PHRASE "CONTROLLING PERSON" AS USED THERE TO MEAN
ONLY A SINGLE MAJORITY HOLDER. PLEASE CONSIDER YOUR OBLIGATION TO PROVIDE
GENERAL INSTRUCTION C INFORMATION AS TO AT&T WIRELESS AND JVII.
We respectfully disagree with your interpretation that AT&T Wireless
Services Inc. ("AT&T Wireless") and JVII General Partnership ("JVII") are
controlling persons for which Schedule TO General Instruction C information is
required. In light of RCI's ability to elect more than a majority of the RWCI
board of directors, AT&T Wireless and JVII have never exercised control over
RWCI or RWI. Moreover, as we discussed, the previously disclosed purchase
transaction pursuant to which RCI acquired AT&T Wireless's entire interest in
RWCI closed on October 13, 2004, and the AT&T Wireless-nominated directors of
RWCI and RWI have all resigned from the boards of RWCI and RWI.
3. REFER TO YOUR RESPONSE TO COMMENT 3 IN OUR OCTOBER 5, 2004 LETTER. YOUR
RESPONSE RAISES QUESTIONS AS TO WHETHER BIDDERS OR THEIR AFFILIATES
RECEIVED ADDITIONAL CONFIDENTIAL INFORMATION FROM MICROCELL, INCLUDING
FINANCIAL FORECASTS AND PROJECTIONS THAT WERE NOT PREVIOUSLY DISCLOSED BY
MICROCELL. PLEASE INDICATE SUPPLEMENTALLY. IF ADDITIONAL FINANCIAL
FORECASTS OR PROJECTIONS WERE RECEIVED, INDICATE SUPPLEMENTALLY YOUR
BASIS FOR EXCLUDING DISCLOSURE IN THE OFFER MATERIALS.
We confirm supplementally that RWI, RWCI and RCI did not receive any
additional financial forecasts and projections from Micrcocell beyond those
which were publicly disclosed by Microcell. However, RWI, RWCI and RCI were
given access to various other information, including agreements with
suppliers, joint venture agreements, litigation summaries, correspondence and
tax returns. RWI, RWCI and RCI do not consider the inclusion of such
information in the data room to be material and believe that adequate
disclosure regarding the due diligence process was included on page 31 of the
Offers to Purchase and Circular, in which RWI discloses that its
representatives were given access to Microcell's virtual data room and met
with Microcell management after RCI and RWCI entered into a confidentiality
and standstill agreement with Microcell on July 14, 2004.
<page>
3
4. IN RESPONSE TO COMMENT 4 IN OUR PRIOR LETTER YOUR RESPONSE LETTER
INDICATES THAT YOU HAVE REVISED THE OFFER MATERIALS TO CLARIFY THAT ANY
ACTION OR INACTION BY THE BIDDERS MUST BE UNINTENTIONAL. HOWEVER, WE ARE
CONCERNED THAT THE ACTUAL REVISIONS TO SECTION 4 IN THE OFFER MATERIALS
DO NOT SAY SO. SPECIFICALLY, THE USE OF THE WORD "INCLUDING" IN THE
REVISED OFFERING CIRCULAR SEEMS TO IMPLY THAT ACTIONS THAT ARE OTHER THAN
UNINTENTIONAL COULD ALSO CAUSE A TRIGGERING EVENT. PLEASE REVISE.
RWCI and RWI acknowledge the Staff's comment and have revised Section 5
of the Offers to Purchase to clarify that in the case of an action or inaction
of the Offeror giving rise to the Offeror's assertion of a condition of the
Offers, such action or inaction must be unintentional, as follows:
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."
5. WE NOTE YOUR RESPONSES TO COMMENTS 5 THROUGH 11 IN OUR PRIOR COMMENT
LETTER. THESE RESPONSES HAVE FURTHER CLARIFIED HOW YOUR OFFERS WILL WORK
MECHANICALLY BUT UNFORTUNATELY HAVE RAISED ADDITIONAL CONCERNS UNDER US
TENDER OFFER RULES. PLEASE ADDRESS THE FOLLOWING QUESTIONS:
(A) YOU APPARENTLY DO NOT PLAN TO TAKE UP AND PAY FOR SECURITIES
TENDERED DURING A SUBSEQUENT OFFER PERIOD ON A ROLLING BASIS. HOW IS
THIS CONSISTENT WITH YOUR OBLIGATIONS UNDER RULE 14D-11(E)?
(B) SUBPARAGRAPH (B) ON PAGE 23 OF THE REVISED OFFERING CIRCULAR NOW
MAKES CLEAR THAT IT REFERS ONLY TO A SUBSEQUENT OFFERING PERIOD.
<page>
4
HOWEVER IT IS NOT APPARENT HOW THERE COULD BE AN INCREASE IN THE
CONSIDERATION PAID IN THE OFFER DURING THE SUBSEQUENT OFFERING
PERIOD. SEE RULE 14D-11(F).
(C) THE REVISIONS TO THE OFFERING CIRCULAR IMPLY THAT THE OFFERS COULD
REMAIN CONDITIONAL DURING THE SUBSEQUENT OFFERING PERIOD. AS YOU
KNOW, US LAW ALLOWS A SUBSEQUENT OFFERING PERIOD ONLY ONCE AN OFFER
HAS GONE "WHOLLY UNCONDITIONAL." PLEASE REVISE OR ADVISE.
RWI, RWCI and RCI acknowledge the Staff's comment in clause (a). As
disclosed in the first paragraph of page 22, the Offeror will take up and pay
for Securities as they are deposited during the Subsequent Offering Period. We
are clarifying the disclosure in the last paragraph on page 22 and the third
paragraph on page 24 of the Offers to Purchase and Circular as follows:
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
<page>
5
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."
RWI, RWCI and RCI acknowledge the Staff's comments in clauses (b) and (c)
above and have clarified the disclosure in the last sentence of the first
paragraph on page 21 of the Offers to Purchase and Circular as follows:
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;"
<page>
6
6. SEE OUR LAST COMMENT. ARE YOU SEEKING TO RELY ON A "CROSS BORDER"
EXEMPTION IN CONDUCTING THESE OFFERS? IF SO, PLEASE IDENTIFY AND DESCRIBE
THE FACTS THAT YOU BELIEVE ALLOW YOU TO DO SO. WE MAY HAVE ADDITIONAL
COMMENTS.
As discussed in response 5 above, we have amended the disclosure
regarding withdrawal rights during a Subsequent Offering Period to clarify
that the take up and payment during any such Subsequent Offering Period would
be in compliance with Rule 14d-11 under the Securities Exchange Act of 1934.
7. WE REFER TO THE CHANGES YOU HAVE MADE TO THE OFFERING MATERIALS IN
RESPONSE TO COMMENT 14 IN OUR PRIOR COMMENT LETTER. WE CONTINUE TO HAVE
CONCERNS WITH YOUR REVISED DISCLOSURE HOWEVER, BECAUSE YOU ARE ASKING
TENDERING SECURITY HOLDERS TO WAIVE THEIR RIGHT TO SUE IN A U.S. COURT.
PLEASE REVISE THE LANGUAGE IN YOUR OFFERING MATERIALS THAT STATES THAT BY
TENDERING, A SECURITY HOLDER "UNCONDITIONALLY AND IRREVOCABLY ATTORNS TO
THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE PROVINCE OF ONTARIO."
RWI, RWCI and RCI acknowledge the Staff's comment and have amended the
disclosure at the top of page 28 to read as follows:
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."
___________________________
<page>
7
If you have any questions regarding the contents of this letter,
please contact me at the above number.
Respectfully,
/s/ John T. Gaffney
John T. Gaffney
Christina Chalk, Esq.
Office of Mergers and Acquisitions
Division of Corporate Finance
United States Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549