Exemption Orders (Discretionary)
ROGERS WIRELESS COMMUNICATIONS INC.
2001 BCSECCOM 811
IN THE MATTER OF THE SECURITIES ACT
R.S.B.C. 1996, c. 418
AND
IN THE MATTER OF ROGERS WIRELESS COMMUNICATIONS INC.
Exemption Order Under Sections 48 and 76
[para 1]
WHEREAS Rogers Wireless Communications Inc. ("RWCI") has applied to the Executive Director for an order under sections 48 and 76 of the Securities Act, R.S.B.C. 1996, c. 418, that certain intended trades in securities made in connection with a proposed transaction whereby RWCI will amalgamate with a subsidiary of Rogers Communications Inc. ("RCI") and thereafter "go private" (the "Transaction") are exempt from the requirements of sections 34(1)(a) and 61 of the Act;
[para 2]
AND WHEREAS RWCI has represented to the Executive Director that:
1. RWCI was incorporated under the Canada Business Corporations Act ("CBCA") and its head office is located in Québec;
2. as at May 31, 2001, RWCI’s authorized capital consists of an unlimited number of Class A Multiple Voting Shares ("RWCI Class A Shares"), an unlimited number of Class B Restricted Voting Shares ("RWCI Class B Shares") and an unlimited number of First Preferred Shares ("RWCI Preferred Shares"), of which 90,468,259 RWCI Class A Shares, 50,968,986 RWCI Class B Shares and no RWCI Preferred Shares are issued and outstanding;
3. approximately 69% of the RWCI Class A Shares are owned by RCI and the remaining RWCI Class A Shares (approximately 31%) are owned by JVII General Partnership; approximately 22% of the RWCI Class B Shares are owned by RCI, approximately 41% are owned by JVII General Partnership and the remaining RWCI Class B Shares (approximately 37%) are owned by the public;
4. RWCI is a reporting issuer under the Act and is not in default of any requirement of the Act or the Securities Rules, B.C. Reg. 194/97;
5. the RWCI Class B Shares are listed on The Toronto Stock Exchange (the "TSE") and the New York Stock Exchange (the "NYSE");
6. RCI was continued and amalgamated under the Company Act (British Columbia) and its head office is located in Ontario;
7. as at May 31, 2001, RCI’s authorized capital consists of 200,000,000 Class A Voting shares without par value ("RCI Class A Shares"), 1,400,000,000 Class B Non-Voting shares with a par value of $1.62478 per share ("RCI Class B Shares") and 400,000,000 Preferred Shares ("RCI Preferred Shares") issuable in series, of which there are issued and outstanding 56,240,494 RCI Class A Shares, 152,566,709 RCI Class B Shares and 139,755 Series B RCI Preferred Shares, 164,202 Series E RCI Preferred Shares, 105,500 Series XXIII RCI Preferred Shares, 253,500 Series XXVI RCI Preferred Shares, 150,000 Series XXVII RCI Preferred Shares, 30,000 Series XXIX RCI Preferred Shares, 818,300 Series XXX RCI Preferred Shares, 300,000 Series XXXI RCI Preferred Shares and 300,000 Series XXXII RCI Preferred Shares;
8. RCI is a reporting issuer under the Act and is not in default of any requirement of the Act or the Rules;
9. the RCI Class A Shares are listed on the TSE and the RCI Class B Shares are listed on the TSE and the NYSE;
10. a newly incorporated subsidiary of RCI ("Subco") is intended to be incorporated under the CBCA for the purposes of the Transaction; its registered and head office will be in Ontario;
11. Subco’s authorized capital will consist of an unlimited number of Class A Multiple Voting Shares ("Subco Class A Shares"), an unlimited number of Class B Restricted Voting Shares ("Subco Class B Shares"), an unlimited number of Subco Class B Restricted Voting Convertible Shares ("Subco Class B Convertible Shares") and an unlimited number of Class C Non-Voting Shares ("Subco Class C Non-Voting Shares");
12. Subco will not be a reporting issuer under the Act until its amalgamation with RWCI pursuant to the Transaction;
13. the Transaction will be subject to the approval of the shareholders of RWCI at a meeting called for the purposes of approving the Transaction (the "Meeting");
14. in connection with the Meeting, the shareholders of RWCI will be furnished with a management information circular (the "Circular") that contains, among other things, prospectus leveldisclosure of the business and affairs of RCI and particulars of the Transaction;
15. RCI as the shareholder of Subco will be provided with a copy of the Circular; a special resolution approving the Transaction will be approved by written consent of such shareholder;
16. the purpose of the Transaction is to provide for current public shareholders of RWCI to exchange their shares in RWCI for RCI Class B Shares; and to have RWCI (after its amalgamation with Subco to form RWCI Amalco ("Amalco")) continue as Amalco and cease to be a reporting issuer, with its sole shareholders being RCI and JVII General Partnership;
17. in connection with the Transaction:
(a) RCI will transfer to Subco the RWCI Class B Shares owned by RCI in exchange for Subco Class A Shares and JVII General Partnership will transfer to Subco the RWCI Class A Shares and RWCI Class B Shares owned by JVII General Partnership in exchange for Subco Class C Non-Voting Shares and Subco Class B Shares, respectively;
(b) RCI will issue to Subco, in exchange for Subco Class B Convertible Shares, sufficient RCI Class B Shares in order to provide for the redemption of all of the Amalco Redeemable Preferred Shares (as described below);
(c) each issued and outstanding RWCI Class B Share (other than those held by dissenting shareholders and Subco) will be exchanged for: (a) in the case of shareholders who are eligible shareholders (for tax purposes) and who so elect, one Amalco Class C Non-Voting Share; and (b) in the case of shareholders other than those who have exchanged their RWCI Class B Shares under (a), one Amalco Redeemable Preferred Share;
(d) each issued and outstanding RWCI Class B Share and RWCI Class A Share held by Subco will be cancelled without repayment of capital in respect thereof;
(e) each issued and outstanding Subco Class A Share, Subco Class B Share, Subco Class B Convertible Share and Subco Class C Non-Voting Share will be exchanged for, respectively, one Amalco Class B Restricted Voting Share, Series R, one Amalco Class B Restricted Voting Share, Series J, one Amalco Class B Restricted Voting Share, Series R and one Amalco Class A Multiple Voting Share, Series J; and
(f) each RWCI Class A Share owned by RCI will be exchanged for one Amalco Class A Multiple Voting Share, Series R;
18. immediately following the preceding steps:
(a) Amalco will redeem each Amalco Redeemable Preferred Share for 1.1 RCI Class B Shares;
(b) Amalco will file articles of amendment redesignating the Amalco Class C Non-Voting Shares as Amalco Exchangeable Non-Voting Shares ("Exchangeable Shares") and amending the share conditions thereof so that the Exchangeable Shares will be:
(i) redeemable, at 5:00 p.m-. on the day the articles of amendment are filed, for RCI Class B Shares subject to a call right in favour of RCI (which will override an exercise of a redemption); and
(ii) convertible into Amalco Class B Restricted Voting Shares, Series R once the call right has been exercised;
(c) RCI will exercise, prior to 5:00 p.m. on the day the articles of amendment are filed, the call right to purchase the Exchangeable Shares; and
(d) RCI will exercise the conversion right and Amalco will issue one Amalco Class B Restricted Voting Share, Series R for each Exchangeable Share; and
19. the Transaction involves or may involve trades of securities for which there are no registration or prospectus exemptions available under the Act (the "Non-Exempt Trades");
[para 3]
AND WHEREAS the Executive Director considers that to do so would not be prejudicial to the public interest;
[para 4]
IT IS ORDERED:
1. under sections 48 and 76 of the Act that the Non-Exempt Trades are exempt from the requirements of sections 34(1)(a) and 61 of the Act; and
2. under section 76 of the Act that a trade in the RCI Class B Shares acquired under this order is deemed to be a distribution unless:
(a) RCI is a reporting issuer and has been a reporting issuer for the 12 months immediately preceding the trade;
(b) if the seller is an insider of RCI, other than a director or senior officer of RCI, the seller has filed all records required to be filed under sections 87 and 90 of the Act;
(c) if the seller is a director or senior officer of RCI, the seller has filed all records required to be filed under sections 87 and 90 of the Act and RCI has filed all records required to be filed under Part 12 of the Act and the Rules;
(d) the trade is not a distribution from the holdings of a control person;
(e) no unusual effort is made to prepare the market or create a demand for the security; and
(f) no extraordinary commission or other consideration is paid in respect of the trade.
[para 5]
DATED August 8, 2001.
Derek E. Patterson
Manager