UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 4)*
ROGERS WIRELESS COMMUNICATIONS INC.
--------------------------------------------------------------------------------
(Name of Issuer)
Class B Restricted Voting Shares
--------------------------------------------------------------------------------
(Title of Class of Securities)
775102205
--------------------------------------------------------------------------------
(Cusip Number)
Benjamin F. Stephens
AT&T Wireless Services, Inc.
7277 164th Avenue NE, Building 1
Redmond, WA 98052
(425) 580-6000
--------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
September 3, 2004
--------------------------------------------------------------------------------
(Date of Event Which Requires Filing of This Statement)
--------------------------------------------------------------------------------
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box.
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
This Amendment No. 4 ("Amendment No. 4") amends and supplements the
statement on Schedule 13D initially filed on August 27, 1999, as amended by
Amendment No. 1. filed on July 23, 2001, Amendment No. 2 filed on August 21,
2001 and Amendment No. 3 filed on April 27, 2004 (the "Original Filing").
Information reported in the Original Filing remains in effect except to the
extent that it is amended, restated or superseded by information contained in
this Amendment No. 4. Capitalized terms used and not defined in this Amendment
No. 4 shall have the meanings set forth in the Original Filing.
ITEM 4. PURPOSE OF TRANSACTION
Item 4 of the Original Filing is hereby amended by adding the following at the
end thereof:
On September 3, 2004, AT&T Wireless Services, Inc., on behalf
of JVII General Partnership ("JVII"), Rogers Communications Inc.("RCI") and,
with respect to specified portions, Rogers Wireless Communications Inc. ("RWCI")
entered into a letter agreement relating to the securities of RWCI owned by JVII
(the "Letter Agreement"). A copy of the Letter Agreement is attached as Exhibit
A to this Amendment No. 4 and is incorporated herein by reference.
Pursuant to the Letter Agreement, RCI has agreed to waive through
September 30, 2004 certain requirements of the existing shareholder agreement to
allow JVII to explore a possible sale of its interest in RWCI. This amendment
includes a waiver of RCI's exclusive 21-day right of first negotiation period.
The agreement also provides that if the sales price for the interest is
$36.00 (CND) (less applicable commissions or fees and specified expenses) per
share or less and if JVII decides to pursue the sale at such net sales price,
RCI would have the right of first refusal to purchase the entire stake directly
from JVII at the proposed net sales price.
There can be no assurance that any sale of any shares of RWCI will
occur or as to the terms, manner or timing of any such sale. Any sales will
depend on market, business and economic conditions, factors relating to the
Issuer (including the market price of the securities) and other factors that
JVII and AT&T Wireless may consider relevant.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SECURITIES OF THE ISSUER.
Item 6 of the Original Filing is hereby amended by adding the following at the
end thereof:
On September 3, 2004, the Letter Agreement was executed. A
copy of the Letter Agreement is attached as Exhibit A to this Amendment No. 4
and is incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
The following document is filed as an exhibit to this Amendment No. 4:
Exhibit A: Letter Agreement dated September 3, 2004
SIGNATURE
After reasonable 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.
Dated: September 3, 2004
AT&T WIRELESS SERVICES, INC.
By: /s/Marilyn J. Wasser
--------------------
Name: Marilyn J. Wasser
Title: Executive Vice President
MMM HOLDINGS, INC.
By: /s/ Gregory P. Landis
---------------------
Name: Gregory P. Landis
Title: Executive Vice President
JVII GENERAL PARTNERSHIP
By: AT&T Wireless Services, Inc.
By: /s/Marilyn J. Wasser
--------------------
Name: Marilyn J. Wasser
Title: Executive Vice President
By: MMM Holdings, Inc.
By: /s/ Gregory P. Landis
---------------------
Name: Gregory P. Landis
Title: Executive Vice President
Exhibit Index
Exhibit A: Letter Agreement dated September 3, 2004
Exhibit A
September 3, 2004
CONFIDENTIAL
Mr. Robert Stokes
Senior Vice-President
AT&T Wireless Services, Inc.
16661 NE 72nd Way,
Redmond, Washington
U.S.A 98052
Dear Robert,
Rogers Communications Inc. ("RCI") makes the following proposal to
JVII General Partnership ("JVII") to assist it in offering to sell its shares of
Rogers Wireless Communications Inc. ("RWCI"). This proposal is confidential and
no public announcement with respect to it shall be made by RCI, RWCI, JVII or
any of their respective affiliates, except as contemplated below. The proposal
of RCI is made on the following terms and conditions:
1. ASSISTANCE IN CONNECTION WITH PRIVATE SALES.
(a) RCI will assist JVII, in accordance with the terms of this letter
agreement, in making an offer to sell and selling all, but not less
than all, of JVII's shares of RWCI through (i) sales to non-U.S.
Persons (as defined in Rule 902 of Regulation S promulgated under the
U.S. Securities Act of 1933 (the "Securities Act")) in transactions
pursuant to exemptions (x) from Canadian securities laws under
applicable control block distribution rules, and (y) from the
registration requirements of Section 5 of the Securities Act in
accordance with Rule 903 of Regulation S promulgated thereunder, and
(ii) sales to U.S. Persons pursuant to exemptions (x) from Canadian
securities laws under applicable control block distribution rules,
and (y) from Section 5 of the Securities Act in accordance with
Section 4(1) of the Securities Act. The transactions referred to in
this paragraph 1(a) are collectively referred to herein as a "Private
Sale". Any Private Sale shall be made by JVII in compliance with all
applicable securities laws. For greater certainty, a Private Sale
does not include any offer to sell or sale in respect of which JVII
has exercised its rights under the existing registration rights
agreement
-2-
(the "Registration Rights Agreement") dated August 16, 1999 between
RWCI and JVII.
(b) RCI will use its reasonable commercial efforts to assist JVII in
completing a Private Sale as provided herein.
(c) JVII represents, warrants and agrees to and with RCI that in
connection with any Private Sale:
(i) JVII will not knowingly encourage, assist or facilitate any
potential purchaser or purchasers in acting together as a
"group" (as determined pursuant to Rule 13d - 5(b) of the
United States Securities and Exchange Act of 1934) or
otherwise acting in a coordinated fashion with respect to the
purchase in the Private Sale of shares of RWCI, in any such
case, representing more than 5% of the total equity shares of
RWCI outstanding (a "5% Equity Interest");
(ii) JVII will not sell to any potential purchaser if JVII has
knowledge that the potential purchaser is part of or intends
to form a "group" (as defined above) or to otherwise act in
concert or in a coordinated fashion, whether before or after
closing, with one or more other potential purchasers or with
any other shareholder of RWCI with respect to their shares of
RWCI and such potential purchaser, together with other
potential purchasers or shareholders forming part of a "group"
or acting in concert or in a co-ordinated fashion with such
potential purchaser, would otherwise be purchasing in excess
of a 5% Equity Interest in the Private Sale. For purposes only
of this paragraph 1(c) (and, for greater certainty, not for
purposes of paragraph 3 hereof) potential purchasers whose
accounts are managed by a single financial institution or
investment manager (and any of their affiliates) shall not
constitute a "group" or otherwise be considered to act in
concert or in a co-ordinated fashion by reason only of such
common management; and
-3-
(iii) JVII will ensure that its agents, representatives and
financial advisors (its "Representatives") are aware of the
provisions of this paragraph 1(c) and that they will advise
JVII of any information relating to any of the circumstances
referred to in clauses (i) and (ii) of this paragraph 1(c) of
which they have knowledge including knowledge based on the
inquiry contemplated in paragraph 3(a) (without any further
duty of inquiry).
For greater certainty, it is acknowledged and agreed that the
provisions of this paragraph 1(c) shall not apply to the ownership or
acquisition of any shares of RWCI by any person other than through a
Private Sale.
(d) In connection with any Private Sale to a U.S. Person, any broker
effecting a transaction on behalf of JVII will obtain a letter signed
by such U.S. Person substantially in the form attached hereto and the
certificates (including any global certificate) evidencing the shares
sold to such U.S. Person shall bear the following legend referring to
restrictions on transferability under the Securities Act:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT
BE OFFERED FOR SALE, SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE
TRANSFERRED EXCEPT (I) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH
THE PROVISIONS OF REGULATION S UNDER THE SECURITIES ACT, (II)
PURSUANT TO RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE, IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND
SUBJECT TO THE RIGHT OF THE COMPANY AND THE TRANSFER AGENT (A) PRIOR
TO THE REMOVAL OF THIS LEGEND IN CONNECTION WITH ANY SUCH OFFER,
SALE, ASSIGNMENT, HYPOTHECATION OR OTHER TRANSFER PURSUANT TO CLAUSES
(I)
-4-
OR (II) TO REQUIRE THE DELIVERY OF A DECLARATION THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS AND (B) PRIOR TO
REGISTRATION OF TRANSFER OF ANY SUCH OFFER, SALE, ASSIGNMENT,
HYPOTHECATION OR OTHER TRANSFER PURSUANT TO CLAUSE (III), TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL AND SUCH CERTIFICATES AS THEY
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.
In connection with a sale, assignment, hypothecation or other
transfer pursuant to clause (I), (II) or (IV) of the foregoing
legend, such legend shall be removed from the certificate
representing the shares so transferred if the seller has complied
with the conditions set forth in the foregoing legend.
(e) In connection with a Private Sale, if and when requested by JVII,
RWCI will permit due diligence by JVII and its financial advisors
solely through a single due diligence meeting with senior management
of RWCI (as determined by RWCI) attended by JVII and such advisors
(and which may include their legal counsel) who shall, subject as
hereafter provided, treat all information communicated as
confidential ("Confidential Information") except as may be required
by subpoena, court order or legal process or pursuant to a legally
binding request by a governmental agency or authority. Such due
diligence meeting shall be held in compliance with all applicable
securities law disclosure requirements. For purposes of the
foregoing, the term "Confidential Information" shall not include any
information that (i) at the time of disclosure or thereafter is in
the public domain or is generally available to and known by the
public (other than as a result of a disclosure directly or indirectly
by JVII or its Representatives in breach of the foregoing covenant),
(ii) was or becomes available to JVII or its Representatives from a
source other than RCI or RWCI provided that such source, to the best
of JVII's or its Representatives' knowledge, as the case may be, is
not and was not bound by a confidentiality agreement with or by an
obligation of confidence to RCI or RWCI or otherwise prohibited from
communicating the information to
-5-
JVII or its Representatives by a contractual, legal or fiduciary
obligation, or (iii) has been independently acquired or developed by
JVII or its Representatives without violating any of JVII's
obligation under this letter agreement.
2. DEADLINE. It is important to RCI and RWCI that any Private Sale minimize
disruption to the business of RWCI and public markets. Accordingly,
subject to the terms of this letter agreement, any Private Sale effected
pursuant to this agreement must be completed promptly and in any event on
or prior to September 30, 2004.
3. WAIVER OF RIGHT OF FIRST NEGOTIATION.
(a) In connection with a Private Sale made in reliance on this letter
agreement (but not in connection with any other sale of shares by
JVII), RCI waives its Right of First Negotiation (as defined and set
forth in section 7.1 of the existing shareholders agreement dated
August 16, 1999, as amended, among RCI, RWCI and JVII (the
"Shareholders Agreement")) other than the requirement that all Class
A Multiple Voting shares of RWCI be converted into Class B Restricted
Voting shares of RWCI prior to the completion of any Private Sale
thereof and that no one Person (as defined in the Shareholders
Agreement) following completion of the Private Sale acquires more
than a 5% Equity Interest, except for Persons who are equipment,
software or service providers to the RWCI Group (as defined in the
Shareholders Agreement) who have an ongoing business relationship
with the RWCI Group, which Persons may acquire up to 10% of the total
equity shares outstanding. In complying with the foregoing
restriction, JVII and its Representatives will at the initial contact
with a potential purchaser in connection with a Private Sale or
promptly thereafter (but in any event prior to the consummation of
any sale to such purchaser) inquire orally whether such purchaser is
then an owner of Class B Restricted Voting shares of RWCI, and if so,
the number of Class B Restricted Voting shares owned. If the
potential purchaser advises that it is an owner of a specific number
of Class B Restricted Voting shares, JVII agrees that the shares that
the potential purchaser advises are so owned will be counted as
shares sold pursuant to the Private Sale in determining whether such
potential purchaser immediately following completion
-6-
of the Private Sale acquires more than a 5% Equity Interest (or 10%
of the total equity outstanding in the case of Persons who are
equipment, software or service providers to the RWCI Group) pursuant
to the Private Sale. JVII and its Representatives may rely in good
faith on the oral responses given by a potential purchaser to any
such inquiry and shall have no obligation to make any further or
other inquiries of any such potential purchaser (and, for greater
certainty, shall not be required to take any action to update such
information subsequent to the initial inquiry) or to obtain any
written representations or warranties from the potential purchaser.
(b) JVII agrees that it will not give notice to RCI under section 7.1(b)
of the Shareholders Agreement while this letter agreement is
effective. JVII and RCI acknowledge and agree that any Private Sale
or sale made to RCI under paragraph 4(a) of this letter agreement
shall be deemed to comply with the provisions of the Shareholders
Agreement, including section 5.1 thereof.
4. PURCHASE RIGHT.
(a) RCI shall have the right under this letter agreement to purchase all,
but not less than all, of the shares being offered for sale pursuant
to a Private Sale made in reliance on this letter agreement at the
proposed final sale price per share to JVII, less Commissions and
Expenses (as defined below) (the "JVII Net Sale Price") in the event
that the JVII Net Sale Price is $36.00 (Cdn.) per share or less and
JVII wishes to proceed with the Private Sale at such price. In the
event that JVII wishes to proceed with a Private Sale that will
result in a JVII Net Sale Price that is equal to or less than $36.00
(Cdn.) per share, JVII must give prompt written notice to RCI by (i)
personal delivery directly into the hands of one of: Edward S.
Rogers, O.C., Alan D. Horn or David P. Miller, or (ii) simultaneous
e-mail transmission (sent to all of the following e-mail addresses:
ted.rogers@rci.rogers.com, alan.horn@rci.rogers.com,
david.miller@rci.rogers.com and jturner@torys.com) of the JVII Net
Sale Price, and RCI shall have 24 hours from receipt of such notice
to decide whether or not to purchase all, but not less than all, of
the shares being offered for sale at the JVII
-7-
Net Sale Price. For purposes of the foregoing, any personal delivery
or e-mail transmission received by RCI on a day that is not a
business day (a business day being a day that is not a weekend or a
statutory holiday in Toronto), or that is received after 4:00 p.m.
(Toronto time) on a business day, shall be deemed to have been
received at 8:00 a.m. (Toronto time) on the next business day. (As a
matter of courtesy a voice mail message shall be left for Alan Horn
at 416-935-3555 in the event that e-mail notice is given under this
paragraph, but the failure to leave such a message shall not
invalidate any notice otherwise given in accordance with this
paragraph.) JVII agrees that it will not give a notice to RCI under
this paragraph 4(a) prior to September 10, 2004. To exercise its
right to purchase under this paragraph 4(a), RCI must give written
notice by simultaneous e-mail transmission sent to all of the
following e-mail addresses prior to the expiry of the applicable
deadline: robert.stokes@attws.com; marilyn.wasser@attws.com;
yukio.morikubo@attws.com; and bmiller@tor.fasken.com. RCI's right to
purchase under this paragraph may be assigned by it to any other
person, other than RWCI or a subsidiary of RWCI. For purposes of the
foregoing, "Commissions" shall mean the actual commissions or fees
(calculated on a per share basis excluding any expense reimbursement
or taxes) payable by JVII to a selling dealer retained by it in
connection with a Private Sale and "Expenses" shall mean the amount
of $0.03 (Cdn.) per share.
(b) If timely notice is not received by JVII of RCI's decision to
purchase the shares under the purchase right contained in paragraph
4(a), JVII shall be permitted thereafter to sell all, but not less
than all, of its shares at a price per share that results in JVII
receiving a per share price equal to at least the JVII Net Sale Price
so notified to RCI as provided by this letter agreement.
(c) If RCI exercises its purchase right under paragraph 4(a), the
purchase price for the shares of RWCI shall be paid in cash and the
purchase shall be completed by RCI on the date and at the place in
the City of Toronto specified in writing by RCI to JVII at least five
business days prior to the proposed date of closing, provided that
the date of closing shall be no later than 30 calendar days following
exercise by
-8-
RCI of its purchase right. For the purpose of this paragraph 4(c),
RCI includes any assignee of RCI's right to purchase under paragraph
4(a) hereof.
5. TERMINATION. All rights of JVII or RCI under this letter agreement shall
automatically terminate on September 30, 2004 if a Private Sale has not
been completed on or before that date unless RCI has exercised its right to
purchase under paragraph 4(a) hereof. The provisions of the waiver referred
to in paragraph 3 hereof are one time agreements and, subject to paragraph
7 hereof, in the event that this letter agreement terminates, all rights of
RCI, RWCI and JVII under the Shareholders Agreement and of JVII and RWCI
under the Registration Rights Agreement shall thereafter continue in full
force and effect in accordance with their respective terms, unaffected in
any way by this letter agreement.
6. COSTS AND EXPENSES. All costs and expenses of or incidental to a Private
Sale and of or incidental to all matters in connection with a Private Sale
(whether or not a Private Sale is completed) shall be borne by JVII (and
reimbursed to the relevant person) except that JVII shall not be liable for
any costs and expenses of RCI or RWCI in excess of $250,000 (Cdn.)
(including GST) in the aggregate.
7. TERMINATION OF THE SHAREHOLDERS AGREEMENT.
(a) In the event that JVII in its sole discretion sells shares of RWCI
pursuant to a Private Sale made in reliance on this letter agreement,
or to RCI under paragraph 4(a) hereof, the Shareholders Agreement
shall terminate and shall be deemed to be terminated in accordance
with section 12.1(e) of the Shareholders Agreement as at the date of
the closing of such sale. For greater certainty, the Registration
Rights Agreement shall continue in full force and effect in
accordance with its terms following a Private Sale.
(b) If the Shareholders Agreement terminates in accordance with this
letter agreement, JVII shall cause its nominees to the board of
directors of RWCI to resign immediately.
8. CONFIDENTIALITY. The parties acknowledge and agree that, following
acceptance of this proposal by JVII, public disclosure will need to be made
with respect to this agreement,
-9-
including the public filing of this letter agreement. The parties agree to
consult with each other prior to making such initial disclosure and shall
use their reasonable efforts to agree upon the language for any such
disclosure.
9. GENERAL. This letter agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and there are no other
understandings, agreements, commitments or representations of any nature or
kind with respect to the subject matter hereof. This letter agreement will
be governed by the laws of the Province of Ontario. Time is of the essence
of this letter agreement. Except as otherwise expressly set out herein, all
notices given by any person under this letter agreement shall be given in
accordance with the provisions of section 12.3 of the Shareholders
Agreement.
If the foregoing proposal is acceptable to JVII, please sign a copy
of this letter in the place below and return it to me on or before 6:00 p.m.
(Toronto time) on Friday, September 3, 2004, whereupon (and subject to RWCI
having executed the acceptance and agreement set forth below) it will become a
binding agreement between us, and failing which this proposal shall be void and
of no effect.
Yours truly,
[Signed] Rogers Communications Inc.
Accepted and Agreed to
this 3rd day of September, 2004.
[Signed] AT&T Wireless Services, Inc.,
on behalf of JVII General Partnership
-10-
By signing below, RWCI agrees to
permit due diligence in accordance with
paragraph 1(e) of the foregoing letter
agreement, confirms that a Private Sale
made in accordance with that letter
agreement (including a sale to RCI under
paragraph 4(a) thereof) is deemed to
comply with section 5.1 of the
Shareholders Agreement and agrees that
the Shareholders Agreement shall be
terminated as provided in paragraph 7(a)
thereof (all capitalized terms are used
as defined for purposes of the foregoing
letter agreement).
Accepted and Agreed to
this 3rd day of September, 2004.
[Signed] Rogers Wireless
Communications Inc.