Exemption Orders (Discretionary)
ROGERS WIRELESS COMMUNICATIONS INC.
2001 BCSECCOM 813
Headnote
Mutual Reliance Review System for Exemptive Relief Applications – relief from the requirement to include disclosure specified by Items 6 and 7 of Form 30 in an information circular for a special shareholders’ meeting, as the information had recently been publicly disclosed in connection with the issuer’s annual meeting, there had been no material change in the information, and it was not relevant to the matters being considered at the special meeting.
Applicable British Columbia Provisions
Securities Act, R.S.B.C. 1996, c. 418, s. 119
IN THE MATTER OF THE SECURITIES LEGISLATION OF BRITISH COLUMBIA, ALBERTA, SASKATCHEWAN, ONTARIO, NOVA SCOTIA AND NEWFOUNDLAND
AND
IN THE MATTER OF THE MUTUAL RELIANCE REVIEW SYSTEM FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF ROGERS WIRELESS COMMUNICATIONS INC.
DECISION DOCUMENT
WHEREAS the local securities regulatory authority or regulator (the “Decision Maker”) in each of British Columbia, Alberta, Saskatchewan, Ontario, Nova Scotia and Newfoundland (the “Jurisdictions”) has received an application from Rogers Wireless Communications Inc. (“RWCI”) for a decision pursuant to the Canadian securities legislation of the Jurisdictions (the “Legislation”) that RWCI be exempted from the requirement to include disclosure in the Information Circular (as defined below) regarding executive compensation and indebtedness of directors, executive officers and senior officers (the “Required Disclosure”) as otherwise required by the Legislation;
AND WHEREAS under the Mutual Reliance Review System for Exemptive Relief Applications (the “System”), the Ontario Securities Commission (“OSC”) is the principal regulator for this application;
AND WHEREAS RWCI has represented to the Decision Makers that:
1. RWCI is continued under the Canada Business Corporations Act and is a reporting issuer (or equivalent) in each of the provinces of Canada and, to the best of its knowledge, is not in default of any requirement of the Legislation or the respective regulations or rules made thereunder.
2. Although RWCI’s head office is located in the Province of Québec, the Québec Securities Commission (the “QSC”) could not be selected to act as principal regulator, pursuant to section 3.2(1) of National Policy 12-201, Mutual Reliance Review System (the “Policy”), as RWCI does not require exemptive relief in the Province of Québec. The Province of Ontario is considered the jurisdiction with which RWCI has the next most significant connection and consequently, the OSC has been selected to act as principal regulator for this application, in compliance with section 3.2(2) of the Policy.
3. The authorized capital of RWCI consists of an unlimited number of Class A Multiple Voting Shares (the “RWCI Multiple Voting Shares”), without par value, an unlimited number of Class B Restricted Voting Shares (the “RWCI Restricted Voting Shares”), without par value, and an unlimited number of First Preferred Shares (the “RWCI Preferred Shares”), issuable in series, without par value. As at May 31, 2001, 90,468,259 RWCI Multiple Voting Shares, 50,968,986 RWCI Restricted Voting Shares and no RWCI Preferred Shares are issued and outstanding.
4. The RWCI Restricted Voting Shares are listed and traded on The Toronto Stock Exchange (the “TSE”) and The New York Stock Exchange (the “NYSE”).
5. Rogers Communications Inc. (“RCI”) and AT&T BT Canada JVII General Partnership (“JVII Partnership”) (which is ultimately controlled by AT&T Wireless Services, Inc.) own, respectively, 62,820,371 and 27,647,888 RWCI Multiple Voting Shares representing all the outstanding RWCI Multiple Voting Shares. RCI and JVII Partnership own, respectively, 11,395,802 and 20,948,549 RWCI Restricted Voting Shares, representing approximately 63% of the total outstanding RWCI Restricted Voting Shares.
6. RCI is a British Columbia corporation and is a reporting issuer (or equivalent) in each of the provinces of Canada and, to the best of its knowledge, is not in default of any requirement of the Legislation or the respective regulations or rules made thereunder.
7. The authorized share capital of RCI consists of 2 billion shares divided into 200,000,000 Class A Voting Shares (the “RCI Voting Shares”), without par value, 1.4 billion RCI Non-Voting Shares with a par value of $1.62478 per share and 400,000,000 Preferred Shares (the “RCI Preferred Shares”), issuable in one or more series. As at May 31, 2001 there were outstanding 56,240,494 RCI Voting Shares, 152,566,709 RCI Non-Voting Shares, 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. The RCI Voting Shares are listed and traded on the TSE. The RCI Non-Voting Shares are listed and traded on the TSE and the NYSE.
9. RCI has publicly announced a going private transaction (the “Proposed Transaction”) which is currently proposed to be carried out through the amalgamation of RWCI pursuant to which RCI would acquire all of the RWCI Restricted Voting Shares held by public shareholders of RWCI in exchange for RCI Non-Voting Shares.
10. Subject to review of the Proposed Transaction by the Independent Committee referred to below, RCI has requested that RWCI call a shareholders meeting (the “Meeting”) to approve, among other matters, the Proposed Transaction. If the Proposed Transaction receives approval by the requisite shareholder votes at the Meeting (including approval by a majority of the votes cast by minority shareholders as required by applicable securities legislation), it is intended that the Proposed Transaction will be completed and all shareholders of RWCI (other than RCI and JVII Partnership) will exchange their RWCI Restricted Voting Shares for RCI Non-Voting Shares at the exchange ratio provided pursuant to the Proposed Transaction.
11. The completion of the Proposed Transaction is subject to a number of conditions including, without limitation, receipt of all applicable regulatory and shareholder approvals. The management information circular (the “Information Circular”) to be prepared for the Meeting will comply, subject to receipt of the relief requested herein and the relief described in paragraph 19, with the requirements of applicable corporate and securities laws and will provide that the holders of RWCI Restricted Voting Shares may dissent in respect of the Proposed Transaction in accordance with the provisions of the CBCA and be paid the fair value of their RWCI Restricted Voting Shares (subject to the right of the parties not to proceed with the Proposed Transaction in the event that dissents in respect of more than 1% of the outstanding RWCI Restricted Voting Shares are filed). The Information Circular will disclose, among other matters, that RWCI has no knowledge of any material non-public information concerning RWCI or its securities that has not been generally disclosed.
12. For the Proposed Transaction to be approved by shareholders in accordance with applicable corporate law, it must be approved by (i) at least 66c% of the votes cast by holders of RWCI Multiple Voting Shares and RWCI Restricted Voting Shares voting together, present or represented by proxy at the Meeting (including votes cast by RCI and JVII Partnership); and (ii) at least 66c% of the votes cast by the holders of the RWCI Multiple Voting Shares and RWCI Restricted Voting Shares voting separately, present or represented by proxy at the Meeting (including votes cast by RCI and JVII Partnership).
13. In addition, applicable securities legislation requires that the Proposed Transaction be approved by a majority of the votes cast by minority shareholders (excluding votes cast by RCI and JVII Partnership), present or represented by proxy at the Meeting and entitled to vote on the Proposed Transaction.
14. If the Proposed Transaction is completed, RWCI will become wholly-owned by RCI and JVII Partnership.
15. The Proposed Transaction constitutes a going private transaction under applicable securities legislation, and therefore, is subject to the formal valuation and minority approval requirements under such legislation.
16. A committee of directors (the “Independent Committee”) independent of RCI and JVII Partnership has been established by RWCI for the purpose of supervising the preparation of a formal valuation of the RWCI Restricted Voting Shares and reviewing the Proposed Transaction and making a recommendation to the Board of Directors of RWCI.
17. The Independent Committee has retained independent legal counsel and an independent investment advisor (the “Financial Advisor”).
18. The Financial Advisor retained by the Independent Committee will prepare a formal valuation of the RWCI Restricted Voting Shares under the supervision of the Independent Committee. The Financial Advisor will also carry out sufficient valuation work with respect to RCI in order to come to an opinion whether a formal valuation of the RCI Non-Voting Shares is necessary.
19. On June 20, 2001, RWCI applied to each of the OSC and the QSC for orders exempting it from the requirement to obtain a formal valuation of the RCI Non-Voting Shares in connection with the Proposed Transaction.
20. Unless a discretionary exemption is granted, the Legislation would require that the Information Circular include the Required Disclosure.
21. The annual general meeting for RWCI was held on April 11, 2001. Meeting materials sent to shareholders and filed with the securities regulators in respect of such meeting included the Required Disclosure. There has been no material change to the Required Disclosure as contained in those materials.
22. The Required Disclosure is not relevant to a shareholder’s decision whether or not to vote in favour of the Proposed Transaction because the matters to be determined at the Meeting do not relate to the performance or compensation of the directors or officers of RWCI.
AND WHEREAS under the System, this MRRS Decision Document evidences the decision of each Decision Maker (collectively, the “Decision”);
AND WHEREAS each of the Decision Makers is satisfied that the test contained in the Legislation that provides the Decision Maker with the jurisdiction to make the Decision has been met;
THE DECISION of the Decision Makers under the Legislation is that RWCI is exempt from the requirement to include the Required Disclosure in the Information Circular.
DATED this 13th day of July, 2001.
Paul Moore J.A. Geller