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IMS Health Incorporated and Cognizant Technology Solutions Corporation - MRRS Decision
Headnote
Mutual Reliance Review System for ExemptiveRelief Applications - Split-Off Transaction - Parent distributingshares of its subsidiary in compliance with U.S. securitieslaws - Neither parent nor subsidiary is a reporting issuer inany Canadian jurisdiction - Issuer has over 50 shareholdersin the Jurisdiction, holding fewer than 1% of outstanding shares.
Distribution of shares of subsidiary pursuantto Redemption and Distribution not subject to prospectus ordealer registration requirements ~ First trade deemed to bea distribution unless executed through the facilities of anexchange outside of Canada.
U.S. broker-dealer exempt from registrationrequirement in connection with their participation in the offerand their communications with Canadian shareholders.
Applicable Ontario Statutory Provisions
Securities Act, R.S.O. 1990, c. S.5, as am.,sections 25, 53 and 74(1).
Applicable Ontario Rules
Ontario Securities Commission Rule 45-501 -Exempt Distributions - section 2.5 and 2.7.
Applicable Instruments
Multilateral Instrument 45-102 - Resale of Securities- section 2.14.
IN THE MATTER OF
THE SECURITIES LEGISLATIONOF
EACH OF THE PROVINCES OF CANADA
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
IMS HEALTH INCORPORATED ANDCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatoryauthority or regulator (the "Decision Maker")in each of Ontario, British Columbia, Alberta, Saskatchewan,Manitoba, Québec, Nova Scotia, Newfoundland and Labrador,Prince Edward Island and New Brunswick (collectively the "Jurisdictions")has received an application from IMS Health Incorporated ("IMSHealth") and Cognizant Technology Solutions Corporation("Cognizant" and together with IMS Health,the "Filers") for:
(i) a decision under the legislation ofeach of the Jurisdictions (the "Legislation"),other than the legislation of the provinces of Alberta andSaskatchewan, that the Prospectus Requirement and the RegistrationRequirement shall not apply to any trade of IMS Health Shares(as defined below) and Cognizant Shares (as defined below)by IMS Health to holders of IMS Health Shares (the "IMSHealth Shareholders") pursuant to the ExchangeOffer (as defined below) proposed by IMS Health, subjectto certain conditions;
(ii) a decision under the legislation ofthe Province of New Brunswick (the "New BrunswickLegislation") and the legislation of the Provinceof Manitoba (the "Manitoba Legislation")that the Prospectus Requirement and the Registration Requirementcontained in the New Brunswick Legislation and the ManitobaLegislation shall not apply to any trade of Cognizant Sharesby Cognizant pursuant to the Conversion (as defined below);and
(iii) a decision under the Legislation ofeach of the Jurisdictions, that the Registration Requirementshall not apply to Goldman, Sachs & Co. and Bear, Stearns& Co. Inc. (the "U.S. Broker-Dealers")in connection with their participation in the Exchange Offerand their communications with Canadian IMS Health Shareholders;
AND WHEREAS, under the Mutual RelianceReview System for Exemptive Relief Applications (the "System"),the Ontario Securities Commission is the principal regulatorfor this application;
AND WHEREAS, unless otherwise defined,the terms herein have the meaning set out in National Instrument14-101 Definitions or in Québec Commission Notice 14-101;
AND WHEREAS, the Filers have representedto the Decision Makers that:
1. IMS Health is a leading global providerof market information, sales management and decision-supportservices to the pharmaceutical and healthcare industries.IMS Health is organized under the laws of the State of Delaware.Its principal executive office is located in Fairfield, Connecticut.
2. IMS Health is not a reporting issuer orthe equivalent under the Legislation and has no present intentionof becoming a reporting issuer or the equivalent under theLegislation.
3. IMS Health's common stock is listed andtraded on the New York Stock Exchange under the symbol "RX".
4. IMS Health is authorized to issue 10,000,000shares of preferred stock, 10,000,000 shares of series commonstock and 800,000,000 shares of common stock.
5. As of October 31, 2002, 280,915,233 sharesof IMS Health common stock were issued and outstanding (the"IMS Health Shares").
6. The IMS Health Shares are registered withthe Securities and Exchange Commission (the "SEC")under the Securities Exchange Act of 1934 of the United States(the "1934 Act").
7. As required in relation to the registrationof the IMS Health Shares under the 1934 Act, IMS Health fileswith the SEC its annual report on Form 10-K as well as otherdisclosure materials required under United States securitieslegislation.
8. According to IMS Health's register of shareholders,as of December 23, 2002, there were approximately 92 IMS HealthShareholders resident in Canada (the "Canadian IMS HealthShareholders") representing 0.014% of all IMS HealthShareholders, owning approximately 91,384 IMS Health Shares(representing approximately 0.00027% of the issued and outstandingIMS Health Shares). Of these shareholders, approximately 43Canadian IMS Health Shareholders are resident in Ontario (holdingapproximately 0.000040% of the issued and outstanding IMSHealth Shares), 5 Canadian IMS Health Shareholders are residentin British Columbia (holding approximately 0.0000082% of theissued and outstanding IMS Health Shares), 1 Canadian IMSHealth Shareholder is resident in Alberta (holding approximately0.00000030% of the issued and outstanding IMS Health Shares),0 Canadian IMS Health Shareholders are resident in Manitoba(holding 0.0% of the issued and outstanding IMS Health Shares),42 Canadian IMS Health Shareholders are resident in Québec(holding approximately 0.00022% of the issued and outstandingIMS Health Shares), 1 Canadian IMS Health Shareholder is residentin Nova Scotia (holding approximately 0.00000035% of the issuedand outstanding IMS Health Shares) and no other Canadian IMSHealth Shareholders are resident in each of the other Jurisdictions.
9. In addition, 3 IMS Health Shareholdersresident in Québec act as custodians for approximately181 individual accounts (holding the same percentage of theissued and outstanding IMS Health Shares as noted in Paragraph8). A separate local application has been filed with La Commissiondes valeurs mobilières du Québec seeking a decisionunder the legislation of the Province of Québec (the"Québec Legislation") that the requirementscontained in the Québec Legislation relating to deliveryof a issuer bid circular and any notices of change or variationthereto, minimum deposit periods and withdrawal rights, take-upand payment for securities tendered to an issuer bid, disclosure,restrictions upon purchases of securities, financing, identicalconsideration and collateral benefits (the "IssuerBid Requirements") shall not apply to the ExchangeOffer.
10. Cognizant is a leading provider of custominformation technology, commonly referred to as IT, design,development, integration and maintenance services primarilyfor Fortune 1000 companies located in the United States andEurope. Cognizant is organized under the laws of the Stateof Delaware. Its principal executive office is located inTeaneck, New Jersey.
11. Cognizant's class A common stock (the"Cognizant Class A Shares") is listed forquotation on the Nasdaq National Market under the symbol "CTSH".
12. Cognizant is authorized to issue 15,000,000shares of preferred stock, 100,000,000 Class A shares of commonstock and 25,000,000 Class B shares of common stock (the "CognizantClass B Shares").
13. As of October 31, 2002, 8,850,276 CognizantClass A Shares and 11,290,900 Cognizant Class B Shares wereissued and outstanding (the "Cognizant Shares").
14. At October 31, 2002, IMS Health owneda majority and controlling interest in the outstanding CognizantShares (approximately 56%) and held approximately 93% of thecombined voting power of Cognizant Shares.
15. The Cognizant Class A Shares are registeredwith the SEC under the 1934 Act.
16. As required in relation to the registrationof the Cognizant Class A Shares under the 1934 Act, Cognizantfiles with the SEC its annual report on Form 10-K as wellas other disclosure materials required under United Statessecurities legislation.
17. Cognizant is not a reporting issuer orthe equivalent in any of the Jurisdictions and has no presentintention of becoming a reporting issuer or the equivalentin any of the Jurisdictions.
18. IMS Health has owned Cognizant Class BShares since July, 1998. IMS Health does not view its interestin Cognizant as strategically important to IMS Health.
19. IMS Health is offering IMS Health Shareholdersthe opportunity to exchange each of their IMS Health Sharesfor a certain number of Cognizant Class B Shares (the "ExchangeOffer"). This number is sometimes referred to asthe "exchange ratio.'' IMS Health Shareholders may tenderall, some or none of their IMS Health Shares.
20. IMS Health Shares accepted for exchangewill be exchanged at the exchange ratio, on the terms andsubject to the conditions of the Exchange Offer, includingthe proration provisions.
21. The Applicants are applying for relieffor the trades of IMS Health Shares and Cognizant Class BShares under the Exchange Offer (the "Exchange Trades").
22. Subject to the SEC's review of the ExchangeOffer registration statement and satisfaction of the conditionsof the Exchange Offer, the Exchange Offer is expected to becompleted in the first quarter of 2003.
23. The Exchange Offer is to be made availableto Canadian IMS Health Shareholders on the same terms andconditions as those extended to IMS Health Shareholders residentin the United States.
24. All materials related to the ExchangeOffer and amendments thereto, including the Offering Circular-Prospectusproviding detailed disclosure of the terms and conditionsof the Exchange Offer (the "Offering Documents"),to be sent by or on behalf of IMS Health to IMS Health Shareholdersresident in the United States will also be sent concurrentlyto the Canadian IMS Health Shareholders and such materialwill be filed with each of the Decision Makers in the Jurisdictions.
25. By making the Exchange Offer, IMS Healthis offering IMS Health Shareholders the opportunity to adjusttheir investment between IMS Health and Cognizant.
26. IMS Health is not offering to exchange,or soliciting any offers to exchange, securities pursuantto the Exchange Offer in any jurisdiction in which those offersor exchanges would not be permitted.
27. IMS Health will distribute up to 11,290,900shares of Cognizant Class B Shares in the Exchange Offer,representing all the Cognizant Shares that IMS Health currentlyowns. If IMS Health Shareholders tender more than a specifiednumber of IMS Health Shares, IMS Health will accept sharesfor exchange on a pro rata basis as described in OfferingCircular-Prospectus. The Exchange Offer is subject to variousconditions described in the Offering Circular-Prospectus,including that a specified minimum number of IMS Health Sharesare validly tendered in the Exchange Offer and not withdrawnand that all of the other conditions of the Exchange Offerhave been satisfied or waived.
28. The Exchange Offer has been made in compliancewith the Securities Act of 1933 (United States) (the "1933Act"), the 1934 Act and the rules of the SEC underthe 1933 Act and the 1934 Act (collectively, the "ApplicableU.S. Securities Laws").
29. The Cognizant Class B Shares that IMSHealth is offering in the Exchange Offer are identical tothe Cognizant Class A Shares in all respects, except thata holder of Cognizant Class B Shares is entitled to 10 votesper share while a holder of Cognizant Class A Shares is entitledto one vote per share.
30. Each Cognizant Class B Share receivedin the Exchange Offer will convert into one Cognizant ClassA Share when it is first transferred after the Exchange Offer.In addition, all the Cognizant Class B Shares will automaticallyconvert into Cognizant Class A Shares on the fifth anniversaryof the completion of the Exchange Offer or, if earlier, whenthe number of Cognizant Class B Shares represents less than35% of the aggregate number of shares of Cognizant commonstock then outstanding (the "Conversion").Cognizant Class B Shares will not be separately listed orquoted on any exchange or in the Nasdaq National Market andwill not trade separately.
31. There is no market for the Cognizant Sharesin Canada and none is expected to develop.
32. No statutory appraisal rights are availableto IMS Health Shareholders or Cognizant shareholders in connectionwith the Exchange Offer.
33. Holders of Cognizant Shares in the Jurisdictionswill receive the same disclosure materials furnished to holdersof Cognizant Shares in the United States.
34. The U.S. Broker-Dealers are acting asjoint dealer managers in the Exchange Offer. Their role isto solicit the participation of the IMS Health Shareholdersin the Exchange Offer. In their capacity as joint dealer managers,the U.S. Broker-Dealers may be contacted by the Canadian IMSHealth Shareholders for assistance concerning the ExchangeOffer, and may also become a member of the soliciting dealergroup and in such capacity, may be contacting the CanadianIMS Health Shareholders under the Exchange Offer.
35. GS&Co is a limited partnership governedby the laws of New York and is registered in the United Statesas, among other things, a broker-dealer and investment adviser.In Ontario, GS&Co is registered under the SecuritiesAct (Ontario) (the "Act") as a dealerin the category of international dealer and as an adviserin the category of international adviser.
36. BS&Co is a corporation incorporatedunder the laws of Delaware and is registered in the UnitedStates as, among other things, a broker-dealer and investmentadviser. In Ontario, BS&Co is registered under the Actas a dealer in the category of international dealer and asan adviser in the category of international adviser.
37. IMS Health is relying upon the de minimisexemption from the requirements relating to issuer bids underthe legislation of all Jurisdictions, other than the legislationof the provinces of Québec, New Brunswick and PrinceEdward Island, because the Canadian IMS Health Shareholderswith an address in such provinces do not hold more than two(2) per cent of the outstanding IMS Health Shares. In addition,the Exchange Offer is made in compliance with the requirementsof Applicable U.S. Securities Laws and all materials relatedto the Exchange Offer and amendments thereto, including theOffering Documents, sent by or on behalf of IMS Health and/orCognizant to IMS Health Shareholders resident in the UnitedStates are also sent concurrently to the Canadian IMS HealthShareholders resident in the applicable provinces and suchmaterial is filed with the Decision Maker in the applicableprovinces.
38. IMS Health cannot rely upon the deminimis exemption from the Issuer Bid Requirements underthe Québec Legislation because the Canadian IMS HealthShareholders with an address in the Province of Québecexceeds 50 holders.
39. An exemption from the Prospectus Requirementand the Registration Requirement for the Exchange Trades isrequired as there are no appropriate exemptions availableunder the legislation of the provinces of British Columbia,Manitoba, Québec, Ontario, New Brunswick, Nova Scotia,Prince Edward Island and Newfoundland & Labrador.
40. There are no appropriate prospectus andregistration exemptions available under the New BrunswickLegislation and the Manitoba Legislation in connection withthe Conversion.
41. There are no specific registration exemptionsavailable to the U.S. Broker-Dealers under the Legislationin connection with their participation in the Exchange Offerand their communications with Canadian IMS Health Shareholders.
42. After giving effect to the Exchange Offer,it is expected that residents of Canada will not (i) directlyor indirectly own more than 10% of the outstanding CognizantClass A Shares or Cognizant Class B Shares, and (ii) willnot represent in number more than 10% of the total numberof shareholders, directly or indirectly, of Cognizant ClassA Shares and Cognizant Class B Shares.
AND WHEREAS under the System, this MRRSDecision Document evidences the decision of each Decision Maker(collectively the "Decision");
AND WHEREAS each of the Decision Makersis satisfied that the test contained in the Legislation thatprovides the Decision Makers with the jurisdiction to make theDecision has been met;
THE DECISION of the Decision Makers underthe Legislation of each of the Jurisdictions, other than theprovinces of Alberta and Saskatchewan, is that the ExchangeTrades shall be exempt from the Prospectus Requirement and theRegistration Requirement of the Legislation of such Jurisdictions,provided that the first trade in the Cognizant Class B Sharesacquired pursuant to the Exchange Offer shall be deemed to bea distribution or primary distribution to the public unlessthe conditions of Section 2.14 of Multilateral Instrument 45-102Resale of Securities are satisfied;
THE DECISION of the Decision Maker inthe Province of New Brunswick under the New Brunswick Legislationand in the Province of Manitoba under the Manitoba Legislationis that the trades pursuant to the Conversion shall be exemptfrom the Prospectus Requirement and the Registration Requirementcontained in the New Brunswick Legislation and the ManitobaLegislation; and
THE DECISION of the Decision Makers ineach of the Jurisdictions, under the Legislation of such Jurisdictionsis that the U.S. Broker-Dealers shall be exempt from the RegistrationRequirement of the Legislation of such Jurisdictions in connectionwith their participation in the Exchange Offer and their communicationswith Canadian IMS Health Shareholders.
January 16, 2003.
"Howard I. Wetston" "RobertL. Shirriff"