AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 15, 2004
REGISTRATION NO. 333-120794
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM F-10
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ROGERS COMMUNICATIONS INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
BRITISH COLUMBIA 4841 NOT APPLICABLE
(Province or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification
Number)
333 BLOOR STREET EAST, 10TH FLOOR
TORONTO, ONTARIO M4W 1G9
(416) 935-7777
(Address and telephone number of Registrant's principal executive offices)
CT CORPORATION SYSTEM
111 EIGHTH AVENUE, 13TH FLOOR
NEW YORK, NEW YORK 10011
(212) 894-8400
(Name, address (including zip code) and telephone number (including area code)
of agent for service in the United States)
COPIES TO:
JOHN T. GAFFNEY, ESQ. DAVID P. MILLER, ESQ.
CRAVATH, SWAINE & MOORE LLP ROGERS COMMUNICATIONS INC.
WORLDWIDE PLAZA 333 BLOOR STREET EAST
825 EIGHTH AVENUE 10TH FLOOR
NEW YORK, NEW YORK TORONTO, ONTARIO M4W 1G9
10019-7475
Approximate date of commencement of proposed sale of the securities to the
public: AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES
EFFECTIVE.
PROVINCE OF ONTARIO, CANADA
(Principal jurisdiction regulating this offering)
It is proposed that this filing shall become effective (check appropriate box)
A. |X| upon filing with the Commission, pursuant to Rule 467(a) (if in
connection with an offering being made contemporaneously in the
United States and Canada).
B. |_| at some future date (check the appropriate box below).
1. |_| pursuant to Rule 467(b) on ( ) at ( ) (designate a time not
sooner than 7 calendar days after filing).
2. |_| pursuant to Rule 467(b) on ( ) at ( ) (designate a time 7
calendar days or sooner after filing) because the securities
regulatory authority in the review jurisdiction has issued a
receipt or notification of clearance on.
3. |_| pursuant to Rule 467(b) as soon as practicable after
notification of the Commission by the Registrant or the
Canadian securities regulatory authority of the review
jurisdiction that a receipt or notification of clearance has
been issued with respect hereto.
4. |_| after the filing of the next amendment to this Form (if
preliminary material is being filed).
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to the home jurisdiction's shelf
prospectus offering procedures, check the following box |_|
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED (1) PRICE (2) REGISTRATION FEE(3)
Class B Non-Voting
Shares 30,104,808 US$715,462,248 US$84,210
(1) Represents the maximum number of shares of Class B Non-Voting Shares of
the Registrant estimated to be issuable upon consummation of the exchange
offer for all of the outstanding Class B Restricted Voting Shares of Rogers
Wireless Communications Inc. ("RWCI") not owned by the Registrant and its
subsidiaries, calculated as the product of (a) 17,202,747, which is the
estimated number of outstanding RWCI Class B Restricted Voting Shares not
owned by the Registrant and its subsidiaries as of November 30, 2004
(assuming full conversion of all outstanding exercisable options for RWCI
Class B Restricted Voting Shares), and (b) the exchange ratio of 1.75 Class B
Non-Voting Shares of the Registrant for each RWCI Class B Restricted Voting
Share.
(2) Estimated solely for the purpose of calculating the registration fee
required by Section 6(b) of the Securities Act of 1933, as amended, and
computed pursuant to Rule 457(f)(1) and (f)(3) and Rule 457(c). The proposed
maximum offering price is equal to the product of (i) US$41.59, which is the
average of the high and low sale prices per registered share of RWCI Class B
Restricted Voting Shares as reported on the Toronto Stock Exchange on November
30, 2004, converted into U.S. dollars at the noon buying rate in New York
City for Canadian Dollars on such date of Cdn.$1.1902 = US$1.00 as certified
for customs purposes by the Federal Reserve Bank of New York on such date, and
(ii) 17,202,747, the estimated number of outstanding RWCI Class B Restricted
Voting Shares not owned by the Registrant and its Subsidiaries (assuming full
conversion of all outstanding exercisable options for RWCI Class B Restricted
Voting Shares).
(3) Previously paid. A registration fee of US$90,454 was previously paid in
connection with the initial filing of this Registration Statement.
PART I
INFORMATION REQUIRED TO BE
DELIVERED TO OFFEREES OR PURCHASERS
This Amendment No. 1 amends and supplements the registration statement on
Form F-10 (as amended, the "Registration Statement") filed by Rogers
Communications Inc., a British Columbia corporation ("RCI" or the
"Registrant"), relating to the offers to purchase all the outstanding Class B
Restricted Voting Shares of Rogers Wireless Communications Inc. (the "Shares")
not owned by RCI and its affiliates in exchange for 1.75 RCI Class B
Non-Voting Shares (the "Offer"). The Offer is subject to the terms and
conditions set forth in the Take-Over Bid Circular dated November 24, 2004 and
the related Letter of Acceptance and Transmittal, copies of which were filed
as Exhibits 4.1 and 4.3, respectively, to the initial Registration Statement
filed with the SEC on November 26, 2004.
Capitalized terms used herein and not defined herein have the respective
meanings assigned to such terms in the Take-Over Bid Circular.
The first sentence under the heading "WHAT DOES THE CORPORATION'S BOARD OF
DIRECTORS THINK OF THE OFFER?" on page four of the Offer to Purchase is hereby
amended and restated in its entirety as follows:
"The board of directors of the Corporation has concluded that the offer
is fair and reasonable to shareholders (other than RCI and its
affiliates) and recommends that they tender their shares to the offer."
The first paragraph under the heading "IS ROGERS COMMUNICATIONS INC.
ATTEMPTING TO ACQUIRE ALL OF THE CORPORATION?" on page four of the Offer to
Purchase is hereby amended and restated in its entirety as follows:
"We are making the Offer in order to acquire all of the outstanding Class
B Restricted Voting Shares not owned by us. If we complete the Offer but
do not then own 100% of the Corporation, we currently intend, depending
on the number of Class B Restricted Voting Shares we have acquired, to
promptly acquire all remaining Class B Restricted Voting Shares not then
owned by us through a second-step transaction as described below."
The following question and answer are hereby added to the end of the Summary
Term Sheet on page five of the Offer to Purchase:
"WILL THERE BE A SUBSEQUENT OFFERING PERIOD?
Although we do not currently intend to do so, we may extend the Offer for
a period of between 10 calendar days and 20 U.S. business days following
the Expiry Time, provided we have immediately taken up and promptly paid
for all RWCI Restricted Voting Shares deposited prior to the Expiry Time.
See "OFFER TO PURCHASE -- Section 5 -- Extension and Variation of the
Offer - Subsequent Offering Period.""
The Glossary to the Offer to Purchase is hereby amended by adding the
following definition on page eight of the Offer to Purchase after the
definition of "Subsequent Offering Period":
""TAKE UP" and "TAKE-UP", in reference to RWCI Restricted Voting Shares
means to accept such RWCI Restricted Voting Shares for payment by giving
written notice of such acceptance to the Depositary. "TAKING UP" and
"TAKEN UP" have correlative meanings."
The introduction to Section 4 "Conditions of the Offer" on page 13 of the
Offer to Purchase is hereby amended and restated in its entirety as follows:
"Notwithstanding any other provision of the Offer and subject to
applicable law, the Offerors shall have the right to withdraw the Offer
and
not take up and pay for, or to extend the period of time during which
the Offer is open for acceptance and postpone taking up and paying for,
any RWCI Restricted Voting Shares deposited under the Offer if, at any
time at or before the Expiry Time, any of the following events shall have
occurred (as determined by the Offerors) which, in the Offerors'
reasonable judgment in any such case, makes it inadvisable to proceed
with the Offer or with the take up of Deposited Shares:"
Clause (d) of Section 4 "Conditions of the Offer" on page 14 of the Offer to
Purchase is amended and restated in its entirety as follows:
"(d) there shall have occurred any tax change (including any proposal to
amend the Tax Act or any announcement, governmental or regulatory
initiative, issue of an interpretation bulletin, condition, event or
development involving a prospective change) that, in the reasonable
judgment of the Offerors, has or may have an adverse effect on the
Corporation, an Offeror or any of their respective subsidiaries, on any
Compulsory Acquisition or Subsequent Acquisition Transaction or on a
subsequent sale or disposition of assets of the Corporation or any of its
subsidiaries;"
The first sentence in the first full paragraph on page 14 of the Offer to
Purchase is hereby amended and restated in its entirety as follows:
"The foregoing conditions are for the exclusive benefit of the Offerors
and may be asserted by the Offerors in their sole discretion regardless
of the circumstances giving rise to such assertion (other than any
intentional action or inaction by an Offeror), or may be waived by the
Offerors, in their sole discretion, 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 an Offeror may have."
The last paragraph on page 14 of the Offer to Purchase is hereby amended and
restated in its entirety as follows:
"Subject as hereinafter described, the Offerors expressly reserve the
right, in their sole judgment, at any time and from time to time during
the Offer Period or at any other time if permitted by applicable law, to
extend the Offer Period or to vary the Offer by giving written notice, or
other communication confirmed in writing, of such extension or variation
to the Depositary at its principal office in Toronto, Ontario, Canada,
and by causing the Depositary as soon as practicable thereafter to
communicate such notice to all holders of RWCI Restricted Voting Shares
that have not been taken up prior to the extension or variation in the
manner set forth in Section 11 of the Offer to Purchase, "Notices and
Delivery". The Offerors will, as soon as practicable after giving notice
of an extension or variation to the Depositary, make a public
announcement of the extension or
variation, such announcement to be made promptly, in the case of a
variation, and in the case of an extension, to be disseminated no later
than 9:00 a.m., Toronto time, on the earlier of (i) the next business day
after the extension or variation and (ii) the next U.S. business day
after the previously scheduled Expiry Time, and will provide a copy of
the written notice to the TSX and the NYSE. Any notice of extension or
variation will be deemed to have been given and be effective at the time
on the day on which it is delivered or otherwise communicated to the
Depositary at its principal office in Toronto, Ontario, Canada.
Notwithstanding the foregoing, but subject to applicable law, the Offer
may not be extended by the Offerors, if all of the terms and conditions
of the Offer, except those waived by the Offerors, have been fulfilled or
complied with, unless the Offerors first takes up all Deposited Shares.
Any such notice will include the approximate number of RWCI Restricted
Voting Shares tendered at the time of the announcement."
The first full paragraph on page 16 of the Offer to Purchase is amended and
restated in its entirety as follows:
"A Subsequent Offering Period, if one is included, does not constitute an
extension of the Offer for purposes of the Exchange Act, although it does
constitute an extension of the Offer under Canadian securities laws.
Under Canadian securities laws, in order for an Offeror to take up and
pay for additional RWCI Restricted Voting Shares deposited after the
initial Expiry Time, the Offerors must either (i) extend the 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 RWCI Restricted Voting Shares, 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 next business day after the Expiry Time during
which Shareholders may deposit RWCI Restricted Voting Shares not
deposited during the Offer. For purposes of applicable Canadian
securities laws, a Subsequent Offering Period is an additional period of
time by which the Offer is extended, following the satisfaction or waiver
of all conditions of the Offer and the take-up of all RWCI Restricted
Voting Shares then deposited under the Offer, and during which period
Shareholders may deposit RWCI Restricted Voting Shares not deposited
prior to the commencement of the Subsequent Offering Period with respect
to the Offer. The Offerors do not currently intend to include a
Subsequent Offering Period with respect to the Offer, although the
Offerors reserve the right to do so in their sole discretion. If the
Offerors elect to include a Subsequent Offering Period with respect to
the Offer, for purposes of applicable United States federal securities
laws, the Offerors will include a statement of their intention to do so
in the press release announcing the results of the 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 Offerors will
provide a written notice of extension of the Offer with respect to the
implementation of the Subsequent Offering Period, including the period
during which the 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 Offer to
Purchase, "Notices and Delivery" to all holders of RWCI Restricted Voting
Shares that have not been taken up pursuant to the Offer at the date of
the extension. The same form and amount of consideration will be paid to
Shareholders depositing RWCI Restricted Voting Shares 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 Offerors will permit withdrawal of deposited RWCI Restricted
Voting Shares during any Subsequent Offering Period, if there is one, at
any time prior to the Expiry Time of such Subsequent Offering Period;
provided, however, that this right of withdrawal will not apply in
respect of Deposited Shares taken up by an Offeror prior to the
Subsequent Offering Period. Withdrawing holders of RWCI Restricted Voting
Shares who have deposited such RWCI Restricted Voting Shares during the
Subsequent Offering Period and have received payment for such RWCI
Restricted Voting Shares must return such payment to the applicable
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 Offer to Purchase, "Conditions
of the Offer", be satisfied or waived prior to the initial Expiry Time,
which will be before the commencement of the Subsequent Offering Period."
Page 17 of the Offer to Purchase is hereby amended by adding the following
paragraph at the end thereof:
"Notwithstanding the provisions of United States federal securities laws
relating to subsequent offering periods, the Offerors will permit
withdrawal of deposited RWCI Restricted Voting Shares during any
Subsequent Offering Period, if there is one, at any time prior to the
Expiry Time of such Subsequent Offering Period; provided, however, that
this right of withdrawal will not apply in respect of Deposited Shares
taken up by an Offeror prior to the Subsequent Offering Period.
Withdrawing holders of RWCI Restricted Voting Shares who have deposited
such RWCI Restricted Voting Shares during the Subsequent Offering Period
and have received payment for such RWCI Restricted Voting Shares must
return such payment to the applicable Offeror prior to any withdrawal."
The first paragraph on page 17 of the Offer to Purchase is amended and
restated in its entirety as follows:
"Except as otherwise stated in this Section 6 and subject to applicable
law, all deposits of RWCI Restricted Voting Shares pursuant to the Offer
are irrevocable. Any Deposited Shares may be withdrawn by or on behalf of
the depositing Shareholder:
(a) at any time before the Deposited Shares have been taken up by an
Offeror;
(b) during a Subsequent Offering Period; provided, however, that
this right of withdrawal will not apply in respect of RWCI
Restricted Voting Shares taken up by an Offeror prior to the
Subsequent Offering Period;
(c) if the RWCI Restricted Voting Shares have not been paid for by
the purchasing Offeror, within three business days after having been
taken up; and
(d) as required by the Exchange Act, at any time after January 23,
2004, provided that the RWCI Restricted Voting Shares have not been
accepted for payment by the purchasing Offeror prior to the receipt
by the Depositary of the notice of withdrawal in respect of such
RWCI Restricted Voting Shares."
The second paragraph on page 18 of the Offer to Purchase is hereby amended by
adding the following sentence at the end thereof:
"Promptly following notification of the Depository of the Offerors'
take-up of Deposited Shares, the Offerors will forthwith issue a press
release over the Dow Jones News Wire Service to that effect, which press
release will disclose the approximate number of RWCI Restricted Voting
Shares deposited in the Offer and the approximate number that have been
taken up."
The second paragraph on page 20 of the Offer to Purchase under the caption
"Other Terms of the Offer" is hereby amended and restated in its entirety as
follows:
"The Offer and all contracts resulting from the acceptance of the Offer
shall be governed by and construed in accordance with the laws of the
Province of Ontario and the laws of Canada applicable therein. Each party
to the agreement resulting from the acceptance of the Offer
unconditionally and irrevocably attorns to the jurisdiction of the courts
of the Province of Ontario, Canada. The foregoing shall not restrict the
applicability to the Offer of the securities laws of the United States or
any other applicable jurisdiction. However, Shareholders should be aware
that the enforcement by holders of civil liabilities under United States
federal
securities laws may be affected adversely by the fact that the Offerors
are governed by the laws of Canada, that the majority of their respective
officers and directors reside outside the United States, that some of the
experts named in the Offer to Purchase reside outside the United States
and that all or a substantial portion of the assets of the Offerors and
said persons may be located outside the United States. Shareholders 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 36 of the Circular is hereby amended by adding the following subsection
above the caption "INDEPENDENT COMMITTEE OF THE CORPORATION":
"OTHER
The Offer does not require the approval of a majority of the
Minority Shareholders. The Offerors intend to take-up and pay for any and
all RWCI Restricted Voting Shares deposited in the Offer, subject to
satisfaction or waiver of certain conditions. See Section 4 of the Offer
to Purchase, "Conditions of the Offer."
Page 38 of the Circular is hereby amended by adding the following sentence to
the end of the last paragraph thereof:
"The Board of Directors did not consider net book value or liquidation
value of the Corporation in considering the fairness of the Offer from a
financial point of view as BMO Nesbitt Burns had determined that these
yielded lower values than the going concern value of the Corporation. The
Board of Directors did consider the going concern value, which was
analyzed in the Valuation and Fairness Opinion provided to the Board of
Directors by BMO Nesbitt Burns."
Page 40 of the Circular is hereby amended by adding the following sentence
after the first sentence of the first paragraph thereof:
"The November 9, 2004 report will be made available for inspection and
copying at RWCI's principal executive offices (One Mount Pleasant Road,
Toronto, Ontario, Canada M4Y 2Y5) during its regular business hours by an
interested holder of RWCI Restricted Voting Shares or representative who
has been so designated in writing."
The information under the headings "Scotia Capital Presentation", "Shareholder
Base" and Preliminary Financial Analysis", on pages 41 and 42 of the Circular
is hereby amended and restated in its entirety as follows:
"SUMMARY OF SCOTIA CAPITAL REPORT
In the course of providing advice to RCI, Scotia Capital provided to the
board of directors of RCI on November 11, 2004 a presentation of
financial information and analysis. The November 11, 2004 presentation
will be made available for inspection and copying at RWCI's principal
executive offices (One Mount Pleasant Road, Toronto, Ontario, Canada M4Y
2Y5) during its regular business hours by an interested holder of RWCI
Restricted Voting Shares or representative who has been so designated in
writing.
Scotia Capital did not have the opportunity to conduct due diligence in
respect of RWCI or have discussions with RWCI management. Scotia Capital
has, on occasion, acted as financial advisor to RCI with respect to
strategic initiatives and acts as a member of RCI's banking group. Scotia
Capital has also participated in some of RCI's equity financings. In
preparing its analysis, Scotia Capital reviewed and relied upon (without
independently verifying the completeness or the accuracy thereof), among
other things, publicly available information regarding RCI, the
Corporation and Microcell, and such other corporate, industry and
financial market information, investigations and analyses as Scotia
Capital considered necessary or appropriate in the circumstances. The
analysis presented by Scotia Capital was indicative in nature and was
prepared solely to provide RCI with a preliminary illustration of the
pricing of RWCI Restricted Voting Shares to assist RCI in formulating its
offer. Such analysis was not intended as an opinion, report or valuation
of the RWCI Restricted Voting Shares. The description of the analysis set
forth below is qualified in its entirety by reference to the text of such
analysis.
SHAREHOLDER BASE
Scotia Capital provided to the board of directors of RCI an analysis of
the RWCI shareholder base. The analysis was based on publicly available
information. Due to the time lag between trading activity and public
filing, the analysis did not offer a definitive current view of RWCI's
shareholder base. Scotia Capital estimated that the top 20 institutional
shareholders in RWCI owned approximately 20% of the RWCI Restricted
Voting Shares not held by RCI and RCI Subco outstanding. Scotia Capital
performed a cross-shareholder analysis of the top 20 institutional
shareholders
in RWCI and their respective holdings in RCI Non-Voting Shares and
determined that 15 of the top 20 RWCI institutional shareholders were
holders of RCI Non-Voting Shares. Scotia Capital described the share
price performance and trading patterns for both the RWCI Restricted
Voting Shares and the RCI Non-Voting Shares since January 2001, including
reviewing the two year historical exchange ratio of RCI and RWCI relative
to the 20-day moving average, the implied exchange ratio paid for the
acquisition of all RWCI Restricted Voting Shares owned by JVII and the
exchange ratio offered by RCI in its unsuccessful attempt to acquire the
outstanding RWCI Restricted Voting Shares not owned by RCI in 2001.
Scotia Capital also estimated that a number of RWCI Restricted Voting
Shares, equivalent to approximately 90% of the RWCI Restricted Voting
Shares not owned by RCI and RCI Subco, had traded on the TSX since
November 2003 at a price less than C$40.00 per share.
PRELIMINARY FINANCIAL ANALYSIS
Scotia Capital reviewed the preliminary "en bloc" valuation range of BMO
Nesbitt Burns in the context of the Corporation's 52-week trading range
on the TSX, consensus research estimates and selected precedent
transactions.
Trading Range: Scotia Capital reviewed the trading of the RWCI Restricted
Voting Shares on the TSX over the last 52 weeks and determined that it
was in the range of $25.75 to $46.71 per RWCI Restricted Voting Share.
Select Precedent Transactions Analysis: Scotia Capital reviewed publicly
available information with respect to recent transactions in the wireless
telecommunications industry in North America. For the purposes of its
analysis, Scotia Capital considered transactions where the target company
had significant cellular operations to be the most relevant and
comparable. Such transactions are set forth in the table below.
Enterprise Value
----------------------------
Announce Date Acquiror Target Revenue EBITDA
----------------------- ---------------------- ------------------------ ------------ ------------
(LAST 12 MONTHS)
CANADIAN TRANSACTIONS
20-Sep-04 Rogers Wireless Microcell 2.4x 19.0x
Communications Inc. Telecommunications Inc.
13-Sep-04 Rogers Wireless Rogers Wireless 2.2x 7.3x
Communications Inc. Communications Inc.
21-Aug-00 Telus Corp. Clearnet 14.4x n.m.
Communications Inc
30-Jul-99 BCE Inc. BCE Mobile 3.9x 16.0x
Communications
U.S. TRANSACTIONS
17-Feb-04 Cingular Wireless AT&T Wireless 3.0x 10.5x
15-Nov-00 Verizon Wireless Price Communications 7.4x 13.7x
Wireless
27-Aug-00 Deutsche Telekom Powertel Inc. 18.7x n.m
24-Jul-00 Deutsche Telekom VoiceStream Wireless 12.7x n.m.
Corporation
Scotia Capital believed that more emphasis should be placed upon the
enterprise value to EBITDA multiple as it is more reflective of a
company's operating profitability and cost structure than the revenue
multiple. EBITDA was defined as the earnings before interest, taxes,
depreciation and amortization. Enterprise value was defined as the equity
market value of the subject company plus its net indebtedness, the value
of its preferred stock and the value of any minority interest in the
applicable company. Applying an illustrative EBITDA multiple range of
8.0x to 10.0x to RWCI yielded an illustrative pricing range of
approximately $48.53 to $66.89 per RWCI Restricted Voting Share.
Scotia Capital cautions that precedent transactions analysis should be
used for illustrative purposes only as the use of selected transaction
multiples does not explicitly take into account the current market
expectations towards the companies involved and the particular
circumstances of any proposed transaction.
Selected Research Views: Scotia Capital also advised the board of
directors of RCI that, at the time of its analysis, equity research
analysts had established price targets for RWCI Restricted Voting Share
ranging from $47.00 to $65.00.
In addition, Scotia Capital compared, using publicly available
information, selected financial information of the Corporation with
similar information for selected publicly traded wireless
telecommunications companies located Canada and the United States.
Scotia Capital also provided the board of directors of RCI with its views
as to offer strategy and timing, as well as to the potential reaction to
the Offer by holders of the RCI Non-Voting Shares and the RWCI Restricted
Voting Shares."
The first paragraph on page 48 of the Circular is hereby amended and
restated in its entirely as follows:
"If the Offer is successful, the Offerors' current intention is to
acquire the RWCI Restricted Voting Shares of any holders who have not
accepted the Offer pursuant to a Compulsory Acquisition or Subsequent
Acquisition Transaction. See "ACQUISITION OF RWCI RESTRICTED VOTING
SHARES NOT DEPOSITED" and "BACKGROUND TO THE OFFER -- STRUCTURE OF THE
TRANSACTION" in this Circular. As a result of such a second-step
transaction, the Offerors would have a 100% interest in both the net book
value and net earnings of RWCI. On a pro forma basis, taking into account
the Microcell acquisition, the acquisition of all RWCI Restricted Voting
Shares owned by JVII, the financing transactions and the Offer, 100% of
RWCI's net income based on U.S. GAAP would be $1,111.4 million and ($55.2
million) for the year ended December 31, 2003 and the nine months ended
September 30, 2004, respectively, and 100% of RWCI's net book value based
on U.S. GAAP at September 30, 2004 would be $1,163.3 million. If the
Offerors proceed with the acquisition of the RWCI Restricted Voting
Shares not deposited under the Offer, RCI intends that the RWCI
Restricted Voting Shares will be delisted from the TSX and the NYSE."
PART II
INFORMATION NOT REQUIRED TO BE
DELIVERED TO OFFEREES OR PURCHASERS
Indemnification
Under Section 160 of the Business Corporations Act (British Columbia)
(the "Act"),
(a) a director or officer of the Registrant,
(b) a former director or officer of the Registrant,
(c) a director, former director, officer or former officer of another
corporation at a time when the corporation is or was an affiliate of
the Registrant or at the request of the Registrant,
(d) an individual who is or was, or holds or held a position equivalent
to that of, a director or officer of a partnership, trust, joint
venture or other unincorporated entity, at the request of the
Registrant (any corporation or entity referred to in (c) or (d), an
"associated corporation"; and any individual described in (a)
through (d), an "eligible individual") or
(e) any heirs and personal or other legal representatives of an eligible
individual (any person described in (e) and any eligible individual,
an "eligible party")
may be indemnified by the Registrant against all judgments, penalties or fines
awarded or imposed or to which the eligible party may be liable in, or amounts
paid in settlement of, any civil, criminal, quasi-criminal, administrative or
regulatory action or proceeding or investigative action, whether current,
threatened, pending or completed, in which the eligible party, by reason of an
eligible individual being or having been a director or officer of, or holding
or having held a position equivalent to that of a director or officer of, the
Registrant or an associated corporation is or may be joined as a party, or is
or may be liable for or in respect of a judgment, penalty or fine in, or
costs, charges and expenses, including legal and other fees ("expenses")
related to, any such action or proceeding (an "eligible proceeding"); and
after the final disposition of an eligible proceeding, may be paid the
expenses actually and reasonably incurred by the eligible party in respect of
that proceeding.
Under Section 161 of the Act, an eligible party must, after the final
disposition of an eligible proceeding, be paid by the Registrant the expenses
actually and reasonably incurred by the eligible party in respect of the
eligible proceeding if the eligible party is wholly successful on the merits
or otherwise, or is substantially successful on the merits, in the outcome of
the proceeding.
Under Section 162 of the Act, an eligible party may be paid by the
Registrant, as expenses are incurred in advance of the final disposition of an
eligible proceeding, the expenses actually and reasonably incurred by the
eligible party in respect of that proceeding; provided that the Registrant
must not pay such expenses unless the Registrant first receives from the
eligible party a written undertaking that the eligible party will repay the
amounts advanced if it is ultimately determined that (i) the eligible
individual in relation to the subject matter of the eligible proceeding did
not act honestly and in good faith with a view to the best interests of the
Registrant or associated corporation, as the case may be, (ii) in the case of
an eligible proceeding other than a civil proceeding, the eligible individual
did not have reasonable grounds for believing the eligible individual's
conduct in respect of which the proceeding was brought was lawful, (iii) the
eligible proceeding is brought by or on behalf of the Registrant or an
associated corporation or (iv) in certain circumstances, the Registrant is or
was prohibited from doing so by its charter (each of items (i) to (iv), a
"statutory prohibition").
Under Section 163 of the Act, the Registrant must not make an
indemnification or payment under Sections 160 to 162 if there is a statutory
prohibition.
Under Section 164 of the Act, the Supreme Court of British Columbia may,
on application of the Registrant or an eligible party, order the Registrant to
indemnify or to pay expenses, despite Sections 160 to 163 of the Act.
The articles of the Registrant provide that:
1. the directors shall cause the Registrant to indemnify a director or
former director of the Registrant and may cause the Registrant to
indemnify a director or former director of a corporation of which
the Registrant is or was a shareholder and the heirs and personal
representatives of any such person against all costs, charges and
expenses, including an amount paid to settle an action or satisfy a
judgment, actually and reasonably incurred by him or them, including
an amount paid to settle an action or satisfy a judgment in a civil,
criminal or administrative action or proceeding to which he is or
they are
made a party by reason of his being or having been a director of the
Registrant or a director of such corporation, including any action
brought by the Registrant or any such corporation;
2. the directors may cause the Registrant to indemnify any officer,
employee or agent of the Registrant or of a corporation of which the
Registrant is or was a shareholder and the heirs and personal
representatives of any such person against all costs, charges and
expenses whatsoever incurred by him or them resulting from his
acting as an officer, employee or agent of the Registrant or such
corporation; and
3. the Registrant shall indemnify the Secretary or Assistant Secretary
of the Registrant (if not a full time employee) and his respective
heirs and legal representatives against all costs, charges and
expenses whatsoever incurred by him or them and arising out of the
functions assigned to the Secretary by the articles of the
Registrant.
Under the Act, the articles of the Registrant may affect the power or
obligation of the Registrant to give an indemnity or pay expenses to the
extent that the articles prohibit giving the indemnity or paying the expenses.
As indicated above, this is subject to the overriding power of the Supreme
Court of British Columbia under Section 164 of the Act.
As contemplated by Section 165 of the Act, the Registrant has purchased
insurance against potential claims against the directors or officers of the
Registrant and against loss for which the Registrant may be required or
permitted by law to indemnify such directors and officers.
The Registrant has entered into indemnification agreements with certain
of its officers and directors that indemnify such persons to the maximum
amount permitted by applicable law. Pursuant to these agreements, the
Registrant has agreed to provide such persons an advance of defense costs
prior to final disposition of a proceeding, subject to an obligation to repay
in certain circumstances.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers or persons controlling the Registrant pursuant to the foregoing
provisions, the Registrant has been informed that in the opinion of the U.S.
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
PART III
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
ITEM 1. UNDERTAKING
The Registrant undertakes to make available, in person or by telephone,
representatives to respond to inquiries made by the Securities and Exchange
Commission ("Commission") staff, and to furnish promptly, when requested to do
so by the Commission staff, information relating to the securities registered
pursuant to Form F-10 or to transactions in said securities.
ITEM 2. CONSENT TO SERVICE OF PROCESS
Concurrently with the filing of the initial Registration Statement on
Form F-10, the Registrant filed with the Commission a written irrevocable
consent and power of attorney on Form F-X. Any change to the name or address
of the agent for service of the Registrant shall be communicated promptly to
the Commission by amendment to Form F-X referencing the file number of the
relevant registration statement.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form F-10 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Toronto, Province of Ontario,
Country of Canada, on December 15, 2004.
ROGERS COMMUNICATIONS INC.
(Registrant)
By: /s/ Alan D. Horn
------------------------------
Alan D. Horn
Vice President, Finance and
Chief Financial Officer
By: /s/ M. Lorraine Daly
------------------------------
M. Lorraine Daly
Vice President, Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE SIGNED
Director, President and
* Chief Executive Officer December 15, 2004
---------------------------------------- (principal executive officer)
Edward S. Rogers, O.C.
Vice President, Finance and
* Chief Financial Officer December 15, 2004
---------------------------------------- (principal financial officer)
Alan D. Horn
* Director and Chairman December 15, 2004
----------------------------------------
H. Garfield Emerson, Q.C.
* Director and Vice Chairman December 15, 2004
----------------------------------------
Philip B. Lind
* Director December 15, 2004
----------------------------------------
Ronald D. Besse
* Director December 15, 2004
----------------------------------------
Peter C. Godsoe
* Director December 15, 2004
----------------------------------------
Thomas I. Hull
* Director December 15, 2004
----------------------------------------
Robert W. Korthals
* Director December 15, 2004
----------------------------------------
Alexander Mikalachki
SIGNATURE TITLE DATE SIGNED
* Director December 15, 2004
----------------------------------------
The Hon. David R. Peterson, P.C., Q.C.
* Director December 15, 2004
----------------------------------------
Edward Rogers
* Director December 15, 2004
----------------------------------------
Loretta A. Rogers
Director and Vice President,
* Strategic Planning December 15, 2004
---------------------------------------- and Venture Investments
Melinda M. Rogers
* Director December 15, 2004
----------------------------------------
William T. Schleyer
* Director December 15, 2004
----------------------------------------
John A. Tory, Q.C.
* Director December 15, 2004
----------------------------------------
Colin D. Watson
* Director December 15, 2004
----------------------------------------
J. Christopher C. Wansbrough
* Director December 15, 2004
----------------------------------------
W. David Wilson
*By: /s/ M. Lorraine Daly
------------------------
M. Lorraine Daly
Attorney-in-Fact
AUTHORIZED REPRESENTATIVE
IN THE UNITED STATES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned certifies that it is the duly authorized United States
representative of Rogers Communications Inc. and has duly caused this
Amendment to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Newark, State of
Delaware, on this 15th day of December, 2004.
PUGLISI & ASSOCIATES
By: /s/ Donald J. Puglisi
------------------------
Donald J. Puglisi
Managing Director
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------------- --------------------------------------------------
5.1 Consent of KPMG LLP.
5.2 Consent of Ernst & Young LLP.
6.1 Powers of Attorney (included on the signature pages of
the initial Registration Statement on Form F-10).