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

 

March 31, 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 common stock of Everett SpinCo, Inc., a direct 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 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.

 

Interpretation

 

Terms defined in National Instrument 14-101 – Definitions and MI 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 January 24, 2017, there were approximately 1.664 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 "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), as of February 6, 2017, there were 991 registered Filer Canadian Shareholders (117 of whom are in Québec), representing approximately 1.46% of the registered holders of the Filer worldwide, holding approximately 368,806 Filer Shares (57,659 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 February 15, 2017, there were 15,224 beneficial Filer Canadian Shareholders (3,481 of whom are in Québec), representing approximately 2.43% of the beneficial holders of Filer Shares worldwide, holding approximately 39,374,266 Filer Shares (8,436,259 of which are held in Québec), representing approximately 2.12% 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 technology consulting, outsourcing and support services businesses into a newly formed company, Everett SpinCo, Inc. (Newco), 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 Newco (Newco Shares), which will be 100% of the Newco Shares outstanding immediately prior to such distribution. A wholly-owned subsidiary of Newco will immediately merge (the Merger) with Computer Sciences Corporation (CSC), with CSC being the surviving company and continuing as a subsidiary of Newco. As part of the Merger, each share of CSC common stock will be converted into the right to receive one share of Newco such that after the Merger approximately 50.1% of the outstanding shares of Newco are expected to be held by pre-Merger NewCo shareholders.

 

10.          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 global enterprise technology consulting, outsourcing and support services businesses. CSC is a Nevada corporation with principal executive offices in Tysons, Virginia, U.S.A., with its common stock listed and traded on the NYSE.

 

11.          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.

 

12.          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.

 

13.          Following the Spin-Off, Newco will cease to be a subsidiary of the Filer and upon the Merger, CSC will be a subsidiary of Newco.

 

14.          Newco has applied to have the Newco Shares listed on the NYSE. After the completion of the transactions, Newco is planning to have the Newco Shares listed and traded on the NYSE. Trading is scheduled to begin on the NYSE on April 3, 2017.

 

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

 

16.          Newco 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, Newco will become a reporting issuer under the Securities Act (Québec) by operation of law. To the knowledge of the Filer, Newco has no intention of becoming a reporting issuer in any jurisdiction of Canada or to list its securities on any Canadian stock exchange after the completion of the Spin-Off.

 

17.          The Spin-Off and Merger will be effected under the laws of the State of Delaware.

 

18.          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.

 

19.          In connection with the Spin-Off, Newco has filed with the SEC an amended registration statement on Form 10 (Amended Registration Statement) under the 1933 Act detailing the proposed Spin-Off. Filer filed the Amended Registration Statement with the SEC on February 24, 2017.

 

20.          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.

 

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

 

22.          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.

 

23.          Following the completion of the Spin-Off, Newco will be subject to the requirements of the 1934 Act and, if listed for trading on the NYSE, its rules and regulations.

 

24.          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.

 

25.          There will be no active trading market for the Newco Shares in Canada following the Spin-Off and none is expected to develop. Consequently, it is expected that any resale of Newco Shares will occur through the facilities of the NYSE.

 

26.          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.

 

27.          Neither the Filer nor Newco 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 National Instrument 45-102 – Resale of Securities are satisfied.

 

“Lucie J. Roy”

Senior Director, Corporate Finance

Autorité des marchés financiers