National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Dual application for Exemptive Relief Applications -- Application for relief from prospectus requirements for spin-off by a U.S. publicly traded company to investors by issuing shares of spun-off entity -- Distribution not covered by legislative exemptions -- There is no market for the securities of the issuer in Canada -- SpinCo will become a U.S. publicly traded company -- The number of Canadian participants and their share ownership are de minimis -- Relief granted, subject to conditions.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 53, 74.
October 30, 2015
IN THE MATTER OF THE SECURITIES LEGISLATION OF QUÉBEC AND ONTARIO (the Jurisdictions) AND IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS AND IN THE MATTER OF HEWLETT-PACKARD COMPANY (the Filer)
The securities regulatory authority or regulator in each of the Jurisdictions (Decision Maker) has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) for an exemption (the Exemption Sought) from the prospectus requirements contained in the Legislation in connection with the distribution (the Spin-Off) by the Filer of the shares of common stock of Hewlett Packard Enterprise Company (HPE), a direct wholly-owned subsidiary of the Filer, by way of a dividend to holders (Filer Shareholders) of shares of common stock of the Filer (Filer Shares) resident in Canada (Filer Canadian Shareholders).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):
(a) the Autorité des marchés financiers is the principal regulator for this application (the Principal Regulator);
(b) the Filer has provided notice that subsection 4.7(1) of Multilateral Instrument 11-102 -- Passport System (MI 11-102) is intended to be relied upon in each of the other jurisdictions of Canada, other than Ontario; and
(c) the decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Terms defined in National Instrument 14-101 -- Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filer:
1. The Filer is a corporation incorporated in Delaware with principal executive offices in Palo Alto, CA, U.S.A. The Filer is a leading global provider of products, technologies, software, solutions and services to individual consumers, small and medium sized businesses and large enterprises, including customers in the government, health and education sectors.
2. The Filer is a reporting issuer in Québec and is not a reporting issuer under the securities legislation of any other jurisdiction of Canada and, currently, has no intention of becoming a reporting issuer under the securities legislation of any other jurisdiction of Canada.
3. The authorized capital of the Filer consists of 9.6 billion Filer Shares and 300 million shares of preferred stock. As of July 31, 2015, there were approximately 1.874 billion Filer Shares issued and outstanding and no shares of preferred stock were issued and outstanding.
4. Filer Shares are listed on the New York Stock Exchange (the NYSE) and trade under the symbol "HPQ". Filer Shares are not listed on any Canadian stock exchange and, currently, the Filer has no intention of listing its securities on any Canadian stock exchange.
5. The Filer is subject to the 1934 Act and the rules, regulations and orders promulgated thereunder.
6. Based on a spreadsheet that breaks down the Filer's record holders by domicile provided by Wells Fargo Shareowner Services (the Filer's transfer agent), as of July 11, 2015, there were 1,192 registered Filer Canadian Shareholders (149 of whom are in Québec), representing approximately 0.02% of the registered holders of the Filer worldwide, holding approximately 401,436 Filer Shares (65,975 of which are held in Québec), representing approximately 1.49% of the outstanding Filer Shares as of such date. The Filer does not expect these numbers to have materially changed since that date.
7. Based on a "Geographic Analysis Report" of beneficial holders provided by Broadridge Financial Solutions, Inc. obtained by the Filer as of July 22, 2015, there were 14,886 beneficial Filer Canadian Shareholders (3,996 of whom are in Québec), representing approximately 2.5% of the beneficial holders of Filer Shares worldwide, holding approximately 15,107,215 Filer Shares (2,128,384 of which are held in Québec), representing approximately 0.081% of the outstanding Filer Shares. The Filer does not expect these numbers to have materially changed since that date.
8. Based on the information above, the number of registered and beneficial Filer Canadian Shareholders and the proportion of Filer Shares held by such shareholders is de minimis.
9. The Filer is proposing to spin-off its enterprise technology infrastructure, software, services and financing businesses into a newly formed independent company, HPE, through a series of transactions. These transactions are expected to result in the Spin-Off by the Filer, pro rata to its shareholders of all of the shares in the common stock of HPE (HPE Shares), which will be 100% of the HPE Shares outstanding immediately prior to such distribution.
10. HPE is a Delaware corporation with principal executive offices in Palo Alto, CA, U.S.A. It is currently a wholly-owned subsidiary of the Filer that, at the time of the Spin-Off, will hold the Filer's global enterprise technology infrastructure, software, services and financing businesses.
11. As of the date hereof, all of the issued and outstanding HPE Shares are held by the Filer, and no other shares or classes of stock of HPE are issued and outstanding.
12. Fractional shares of HPE Shares will not be distributed in connection with the Spin-Off. The distribution agent will aggregate the amount of fractional shares that would otherwise have been distributed and will sell such shares in the open market at prevailing market prices and distribute the cash proceeds (net of discounts and commissions) in U.S. Dollars. The distribution agent will distribute such net proceeds rateably to each Filer Shareholder who would otherwise have been entitled to receive a fractional share of HPE.
13. Filer Shareholders will not be required to pay any consideration for the HPE Shares, or to exchange or surrender Filer Shares or take any other action to receive their HPE Shares. The Spin-Off will occur automatically and without any investment decision on the part of Filer Shareholders.
14. Following the Spin-Off, HPE will cease to be a subsidiary of the Filer.
15. HPE will apply to have the HPE Shares listed on the NYSE before the Spin-Off.
16. After the completion of the Spin-Off, the Filer is planning to continue to be listed and traded on the NYSE.
17. HPE is not a reporting issuer in any jurisdiction of Canada nor are its securities listed on any Canadian stock exchange. Pursuant to the Spin-Off, HPE will become a reporting issuer under the Securities Act (Québec) by operation of law. To the knowledge of the Filer, HPE has no intention of becoming a reporting issuer in any other jurisdiction of Canada or to list its securities on any Canadian stock exchange after the completion of the Spin-Off.
18. The Spin-Off will be effected under the laws of the State of Delaware.
19. Because the Spin-Off will be effected by way of a dividend of HPE Shares to Filer Shareholders, no shareholder approval of the proposed transaction is required (or being sought) under Delaware law.
20. In connection with the Spin-Off, HPE has filed with the SEC a registration statement on Form 10 (Registration Statement) under the 1933 Act detailing the proposed Spin-Off. HPE initially filed the Registration Statement with the SEC on July 1, 2015 and subsequently filed amendments to the Registration Statement on August 10, 2015, September 4, 2015 and September 15, 2015.
21. After the SEC has completed its review of the Registration Statement, Filer Shareholders will receive a notice of internet availability of an information statement (Information Statement) detailing the terms and conditions of the Spin-Off and forming part of the Registration Statement. All materials relating to the Spin-Off sent by or on behalf of the Filer and HPE in the United States (including the Information Statement) will be sent concurrently to Filer Canadian Shareholders.
22. The Information Statement will contain prospectus level disclosure about HPE as required to comply with the SEC requirements for Form 10.
23. Filer Canadian Shareholders who receive HPE Shares pursuant to the Spin-Off will have the benefit of the same rights and remedies in respect of the disclosure documentation received in connection with the Spin-Off that are available to Filer Shareholders resident in the United States.
24. Following the completion of the Spin-Off, HPE will send concurrently to HPE Shareholders resident in Canada the same disclosure materials required to be sent under applicable U.S. federal securities law to HPE Shareholders resident in the United States.
25. There will be no active trading market for the HPE Shares in Canada following the Spin-Off and none is expected to develop. Consequently, it is expected that any resale of HPE Shares distributed in connection with the Spin-Off will occur through the facilities of the NYSE.
26. The distribution to Filer Canadian Shareholders of HPE Shares in connection with the Spin-Off would be exempt from the prospectus requirements pursuant to subsection 2.31(2) of NI 45-106 but for the fact that HPE will not be a reporting issuer at the time of the distribution under the securities legislation of any jurisdiction of Canada.
27. Neither the Filer nor HPE is in default of any securities legislation in any jurisdiction of Canada.
Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.
The decision of the Decision Makers under the Legislation is that the Exemption Sought is granted, provided that the first trade in the HPE Shares acquired pursuant to the Spin-Off will be deemed to be a distribution unless the conditions in section 2.6 or subsection 2.14(1) of National Instrument 45-102 -- Resale of Securities are satisfied.