Securities Law & Instruments

Headnote

 

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.

 

TRANSLATION

 

August 30, 2017

 

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 ENTERPRISE COMPANY

(the Filer)

 

DECISION

 

Background

 

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 Class A common stock of Seattle SpinCo, Inc. (Newco), a wholly-owned subsidiary of the Filer, by way of a dividend in specie 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 Regulation 11-102 respecting Passport System (Regulation 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.

 

Interpretation

 

Terms defined in Regulation 14-101 respecting Definitions and Regulation 11-102 have the same meaning if used in this decision, unless otherwise defined.

 

Representations

 

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 enterprise technology infrastructure, software services, consulting and support services and financial services related to information technology investment.

 

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 May 31, 2017, there were approximately 1.643 billion Filer Shares issued and outstanding and 1,825,840 shares of preferred stock issued and outstanding.

 

4.             Filer Shares are listed on the New York Stock Exchange (the NYSE) and trade under the symbol "HPE". Filer Shares are not listed or posted for trading on any exchange or market in Canada and, currently, the Filer has no intention of listing or posting its securities on any exchange or market in Canada.

 

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 from Wells Fargo Shareowner Services (the Filer's transfer agent) (the “Wells Fargo Report”), as of July 10, 2017, there were 929 registered Filer Canadian Shareholders (109 of whom are in Québec), representing approximately 1.43% of the registered holders of the Filer worldwide, holding approximately 357,813 Filer Shares (57,545 of which are held in Québec), representing approximately 0.02% 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 19, 2017, there were 11,521 beneficial Filer Canadian Shareholders (1,960 of whom are in Québec), representing approximately 1.80% of the beneficial holders of Filer Shares worldwide, holding approximately 26,663,832 Filer Shares (1,631,597 of which are held in Québec), representing approximately 1.63% of the outstanding Filer Shares (which percentage was based on certain information contained in the Wells Fargo Report). 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 software business segment into a newly formed company, Seattle SpinCo, Inc., 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 Class A common stock of Newco (Newco Shares), which will be 100% of the Newco Shares outstanding immediately prior to such distribution. Seattle MergerSub, Inc. (Seattle Merger Sub), a wholly-owned subsidiary of Micro Focus International plc (Micro Focus), will immediately merge (the Merger) with Newco, with Newco being the surviving company and continuing as a subsidiary of Micro Focus. As part of the Merger, each share of Newco will be converted into the right to receive a number of American depositary shares (Micro Focus ADSs) representing ordinary shares of Micro Focus (Micro Focus Shares) such that after the Merger, pre-Merger Newco Shareholders will hold Micro Focus ADSs representing approximately 50.1% of the outstanding Micro Focus Shares on a fully diluted basis.

 

10.          Following the Spin-Off, Newco will cease to be a wholly-owned subsidiary of the Filer and upon the Merger, Newco will continue as an indirect wholly-owned subsidiary of Micro Focus.


11.          Newco 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 software business segment. Seattle Merger Sub is a Delaware corporation with principal executive offices in Palo Alto, CA, U.S.A.

 

12.          As of the date hereof, all of the issued and outstanding Newco Shares are held by the Filer, and no other shares or classes of stock of Newco are issued and outstanding.

 

13.          Filer Shareholders will not be required to pay any consideration for the Newco Shares, or to exchange or surrender Filer Shares or take any other action to receive their Newco Shares. The Spin-Off and Merger will occur automatically and without any investment decision on the part of Filer Shareholders.

 

14.          Micro Focus is a public limited company constituted under the laws of the United Kingdom and headquartered in Newbury, the United Kingdom. Micro Focus is an infrastructure software company that develops, sells and supports software products and solutions internationally. It provides software products in the areas of collaboration, endpoint management, file and networking services, identity and access management, information archiving, security management, terminal emulation, and software delivery and testing.

 

15.          Micro Focus has applied to have the Micro Focus ADSs listed on the NYSE. Micro Focus ADSs are expected to begin trading on the NYSE on September 1, 2017. Micro Focus Shares are, and after the Merger are expected to continue to be, listed on the London Stock Exchange.

 

16.          After the completion of the Spin-Off, the Filer is planning to continue to be listed and traded on the NYSE.

 

17.          Micro Focus is not a reporting issuer in any jurisdiction in Canada nor are its securities listed on any Canadian stock exchange. Pursuant to the Spin-Off and Merger, Micro Focus will become a reporting issuer under the QSA by operation of law. To the knowledge of the Filer, Micro Focus 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 and Merger.

 

18.          The Spin-Off and Merger 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 Newco 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, Newco has filed with the SEC on August 3, 2017 a registration statement on Form 10 (Registration Statement) under the 1934 Act detailing the proposed Spin-Off.

 

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 Newco in the United States (including a notice of Internet availability of the Information Statement) will be sent concurrently to Filer Canadian Shareholders.

 

22.          The Information Statement will contain prospectus level disclosure about Newco as required to comply with the SEC requirements for Form 10.

 

23.          Filer Canadian Shareholders will have the same rights and remedies in respect of the disclosure documentation received in connection with the Spin-Off that are available to Filer Shareholders in the United States.

 

24.          Following the completion of the Spin-Off, Micro Focus will be subject to the requirements of the 1934 Act and the rules and regulations of the NYSE.

 

25.          Micro Focus will send concurrently to holders of Micro Focus ADS and Micro Focus Shares in Canada the same disclosure materials required to be sent under applicable United States securities laws to holders of such securities in the United States.

 

26.          Newco will send concurrently to holders of its shares in Canada the same disclosure materials required to be sent under applicable United States securities laws to holders of its shares in the United States.

 

27.          There will be no active trading market for the Filer Shares, Newco Shares, Micro Focus Shares or the Micro Focus ADSs in Canada following the Spin-Off and none is expected to develop. Consequently, it is expected that any resale of Micro Focus ADSs will occur through the facilities of the NYSE, and any resale of Micro Focus Shares will occur through the facilities of the London Stock Exchange.


28.          The distribution to Filer Canadian Shareholders of Newco 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 Newco will not be a reporting issuer at the time of the distribution under the securities legislation of any jurisdiction of Canada.

 

29.          Neither the Filer, Newco nor Micro Focus is in default of any securities legislation in any jurisdiction of Canada.

 

Decision

 

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 Newco 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 Regulation 45-102 respecting Resale of Securities are satisfied.

 

“Lucie J. Roy”

Directrice principale du financement des sociétés