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ClearWave N.V. - MRRS Decision
Headnote
Mutual Reliance Review System for Exemptive Relief Applications -- Exemption from requirement in legislation to file an annual information form for year ended December 31, 2003 -- Relief granted because the issuer has complied with the requirement to file an annual information form by filing a current Form 20F with the SEC and there are fewer than 300 shareholders residing in the United States and the parent's activities are virtually identical to the issuer's -- Relief subject to condition -- Issuer must file the parent company's annual information form under the issuer's SEDAR profile -- Initial application included a request to be exempted from the requirement to file an information circular -- Application was severed into two separate applications -- Issuer subsequently withdrew its circular application.
Ontario Statutes Cited
Securities Act, R.S.O. 1990, c. S.5, as am, ss. 86(1), 88(2)(b) and 143(1)(22)(ii).
Ontario Rule
Rule 51-501 AIF and MD&A, ss. 2.1 and 5.1.
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
QUÉBEC, ONTARIO AND SASKATCHEWAN
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
CLEARWAVE N.V.
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatory authority or regulator (the "Decision Makers") in each of Québec, Ontario and Saskatchewan (the "Jurisdictions") have received an application (the "Application") from ClearWave N.V. ("ClearWave") for a decision pursuant to the securities legislation of the Jurisdictions (the "Legislation") that ClearWave be exempt from the requirement to file an annual information form for the year ended December 31, 2003.
AND WHEREAS under the Mutual Reliance Review System for Exemptive Relief Applications (the "System"), the Agence nationale d'encadrement du secteur financier (also known as "Autorité des marchés financiers") is the principal regulator for the Application;
AND WHEREAS, unless otherwise defined, the terms herein have the meaning set out in National Instrument 14-101 Definitions;
AND WHEREAS it has been represented by ClearWave to the Decision Makers that:
1. ClearWave is a company incorporated on September 17, 1999 under the laws of The Netherlands as a public limited liability company (naamloze vennootschpap or N.V.) and was then called TIW Eastern Europe N.V. ClearWave is a reporting issuer in each of the Jurisdictions. No shares of ClearWave are listed or quoted on any stock exchange.
2. ClearWave provides wireless telecommunication services in Romania and the Czech Republic through its two principal operating subsidiaries, MobiFon S.A. and Cesky Mobil a.s., over which it exercises control or direction on voting securities for approximately 63.5% and 50.8%, respectively.
3. As of March 31, 2004, 45,868,498 Class A Subordinate Voting Shares ("SVS") and 38,230,950 Class B Multiple Voting Shares ("MVS") of ClearWave were issued and outstanding.
4. Prior to February 4, 2001, ClearWave was a wholly-owned subsidiary of Telesystem International Wireless Inc. ("TIW").
5. On January 15, 2001, ClearWave filed a non-offering prospectus the purpose of which was to have ClearWave become a reporting issuer to prepare for the distribution of transferable rights by TIW to holders of TIW's outstanding shares of record.
6. For each share of TIW outstanding at the close of business on January 23, 2001, a holder thereof was entitled to one right. Two rights entitled the holder thereof to purchase one unit of TIW (a "TIW Unit") at a price of CDN$9.05 per unit. Each unit was comprised of (i) one of ClearWave SVS and (ii) an option to purchase one subordinate voting share of TIW by surrendering the unit, at any time until the unit termination date of June 30, 2002.
7. The sole purpose of ClearWave becoming a reporting issuer was to enable its SVS to be qualified for distribution in the TIW Units.
8. The January 15, 2001 prospectus was a non-offering prospectus and did not constitute a public offering of any securities.
9. TIW's distribution of ClearWave SVS in the TIW Units, an aggregate of 45,868,498 SVS were held publicly through TIW Units.
10. The indenture governing the TIW Units provided, among others, that if the value of ClearWave SVS outstanding on the termination date of the TIW Units (June 30, 2002) was less than US$ 100 million, all holders of TIW Units would be deemed to have exercised the option to surrender the TIW Units for a share of TIW.
11. On February 4, 2002, pursuant to a restructuring of TIW, the Ontario Court of Justice rendered a decision which, among others, struck down the deemed exchange clause in the indenture governing the TIW Units. Thereafter, TIW repurchased 73.5% of all TIW Units outstanding in an issuer bid as part of its restructuring.
12. On June 30, 2002, the TIW Units terminated and the holders thereof received one ClearWave SVS for each TIW Unit held.
13. Beginning in October 2003, TIW began repurchasing ClearWave SVS in private transactions with certain significant minority holders.
14. Pursuant to such purchases, TIW acquired an additional 11,951,925 ClearWave SVS from three holders such that, as of March 31, 2004, TIW held 45,681,938 ClearWave SVS and 38,230,950 MVS representing a direct and indirect equity and voting interest in ClearWave of 99.8% and 99.9% respectively.
15. TIW has announced that it intends to acquire the remaining 0.2% equity interest in ClearWave. As stated in TIW's March 18, 2004 supplemented prospectus: "Following the closing of the ClearWave transaction, we [TIW] expect to acquire the remaining 0.2% equity interest in ClearWave held by the minority shareholders pursuant to similar private or public transactions or, potentially, through statutory share acquisition procedures." TIW's press release of March 26, 2004 reiterates that TIW will seek to acquire all other remaining shares of ClearWave.
16. There are at present 96 minority shareholders of ClearWave. Among these shareholders, it is estimated that 28 are located in Québec, 27 in Ontario and 27 in Saskatchewan.
17. TIW conducts its activities primarily through ClearWave which represents its single largest asset. As a result, TIW's activities consist primarily in the activities of ClearWave's operating subsidiaries MobiFon S.A. and Cesky Mobil a.s.
18. ClearWave's audited financial statements for its financial year ended December 31, 2003 and ClearWave's unaudited financial statements for the three-month period ended March 31, 2004 have been filed on March 15, 2004 and May 11, 2004 respectively, and contain an extensive review of the financial situation of ClearWave.
19. In addition, since TIW's activities are virtually identical to ClearWave's, TIW's annual information form and other public disclosure documents provide extensive disclosure with respect to ClearWave.
20. In light of the existing disclosure on ClearWave, an exemption from the annual information form requirement would not be prejudicial to the public interest and detrimental to the protection of investors as minority shareholders have access to extensive information about ClearWave through TIW's public disclosure.
AND WHEREAS under to the System this decision evidences the decision of each Decision Maker (the "Decision");
AND WHEREAS each of the Decision Makers is satisfied that the test contained in the securities legislation of each of the Jurisdictions that provides the Decision Maker with the jurisdiction to make the Decision has been met;
THE DECISION of the Decision Makers pursuant to the Legislation is that ClearWave N.V. is exempted from the requirement to file an annual information form for the year ended December 31, 2003 pursuant to the Legislation, provided that TIW's Annual Information Form for the year ended December 31, 2003 be filed on ClearWave's SEDAR profile.
May 19, 2004.
"Josée Deslauriers"