National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – relief from prospectus requirements to allow company to spin off shares of its U.S. subsidiary to investors on a pro rata basis and by way of a dividend in specie – distribution not covered by legislative exemptions –company is a public company in the U.S. but is not a reporting issuer in Canada – company has a de minimis presence in Canada – no investment decision required from Canadian shareholders in order to receive shares of the subsidiary.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5 as am., ss. 53, 74(1).
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS
IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction (the Legislation) for an exemption (the Exemption Sought) from the prospectus requirement in section 53 of the Securities Act (Ontario) in connection with the proposed distribution (the Spin-Off) by the Filer of the shares of common stock (Kontoor Shares) of Kontoor Brands, Inc. (Kontoor), 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 passport application):
(a) the Ontario Securities Commission is the principal regulator for this application; and
(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 provinces and territories of Canada.
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 Pennsylvania corporation that designs, produces, procures, markets and distributes branded lifestyle apparel, footwear and related products. The Filer’s principal executive office is located at 105 Corporate Center Boulevard, Greensboro, North Carolina, 27408.
2. The Filer is not a reporting issuer, and currently has no intention of becoming a reporting issuer, under the securities laws of any jurisdiction of Canada.
3. The authorized share capital of the Filer consists of 1,200,000,000 Filer Shares, no par value per share, and 25,000,000 shares of preferred stock, U.S.$1.00 par value per share. As of April 26, 2019, there were 397,104,508 Filer Shares and no preferred shares issued and outstanding.
4. The Filer Shares are listed on the New York Stock Exchange (NYSE) and trade under the symbol “VFC”. Other than the foregoing listing on the NYSE, no securities of the Filer are listed or posted for trading on any exchange or market in Canada or outside of Canada. The Filer has no current 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. According to a registered shareholder report prepared for the Filer by Computershare Inc., as of April 26, 2019, there were 13 registered Filer Canadian Shareholders, representing approximately 0.41% of the registered shareholders of the Filer worldwide and holding approximately 2,256 Filer Shares, representing approximately 0.0006% of the outstanding Filer Shares. The Filer does not expect these numbers to have materially changed since that date.
7. According to a beneficial ownership report prepared for the Filer by Broadridge Financial Solutions, Inc., as of April 24, 2019, there were 4,167 beneficial Filer Canadian Shareholders, representing approximately 0.73% of the beneficial holders of Filer Shares worldwide and holding approximately 5,914,994 Filer Shares, representing approximately 1.49% 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 are de minimis.
9. Kontoor is a North Carolina corporation and a wholly-owned subsidiary of the Filer. Kontoor’s principal executive office is located at 400 N. Elm Street, Greensboro, North Carolina, 27401.
10. All of the issued and outstanding Kontoor Shares are held by the Filer. No other securities of Kontoor are issued and outstanding.
11. On August 13, 2018, the Filer announced the proposed separation of its jeanswear and VF OutletTM businesses from its remaining businesses. This separation will be effected by way of a pro rata distribution of all of the outstanding Kontoor Shares to Filer Shareholders pursuant to the Spin-Off. The Filer will distribute 100% of the Kontoor Shares to the Filer Shareholders at a rate of one Kontoor Share for every seven Filer Shares.
12. The distribution agent for the distribution will distribute to each Filer Shareholder entitled to Kontoor Shares in connection with the Spin-Off the number of whole Kontoor Shares to which the Filer Shareholder is entitled in the form of a book-entry credit. No fractional Kontoor Shares will be issued in connection with the Spin-Off. The distribution agent will aggregate fractional shares into whole shares, sell the whole shares in the open market at prevailing prices and distribute the net cash proceeds from the sales pro rata to each Filer Shareholder who would otherwise have been entitled to receive a fractional share in the distribution. Recipients of cash in lieu of fractional shares will not be entitled to any interest on the amounts of cash payments made in lieu of fractional shares.
13. Filer Shareholders will not be required to pay any cash, deliver any other consideration or surrender or exchange their Filer Shares, or take any other action in order to receive Kontoor Shares in connection with the Spin-Off. The Spin-Off will occur automatically without any investment decision on the part of Filer Shareholders.
14. Subject to the satisfaction of certain conditions, it is currently anticipated that the Spin-Off will become effective on or about May 22, 2019.
15. Following completion of the Spin-Off, Filer Shareholders as of the record date for the Spin-Off will own 100% of the Kontoor Shares, and Kontoor will cease to be a subsidiary of the Filer and will become an independent, publicly-traded company.
16. Following completion of the Spin-Off, the Filer Shares will continue to be listed for trading on the NYSE.
17. The Kontoor Shares have been approved for listing on the NYSE under the symbol “KTB”.
18. Kontoor is not a reporting issuer in any jurisdiction of Canada nor are its securities listed on any stock exchange in Canada. Kontoor has no current intention of becoming a reporting issuer in any jurisdiction of Canada or to list its securities on any stock exchange in Canada after completion of the Spin-Off.
19. The Spin-Off is being effected in accordance with the laws of Pennsylvania.
20. Because the Spin-Off will be effected by way of a dividend of Kontoor Shares to Filer Shareholders, no shareholder approval of the Spin-Off is required or being sought under the laws of Pennsylvania or any applicable United States federal securities laws.
21. On April 1, 2019, Kontoor filed a registration statement on Form 10 with the SEC detailing the proposed Spin-Off, and subsequently filed amendments thereto on April 18, 2019 and April 30, 2019 (the registration statement, as so amended, is referred to as the Registration Statement). The Registration Statement was declared effective by the SEC on May 7, 2019.
22. Filer Shareholders will receive a notice of internet availability of an information statement with respect to Kontoor (the Information Statement) detailing the terms and conditions of the Spin-Off. All materials relating to the Spin-Off sent by or on behalf of the Filer to Filer Shareholders resident in the United States (including the Information Statement) have been sent concurrently to Filer Canadian Shareholders.
23. The Information Statement contains prospectus-level disclosure about Kontoor.
24. Filer Canadian Shareholders who receive Kontoor 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.
25. Following completion of the Spin-Off, Kontoor will be subject to the requirements of the 1934 Act and the rules and regulations of the NYSE. Kontoor will send concurrently to holders of Kontoor Shares resident in Canada the same disclosure materials required to be sent under applicable United States securities laws to holders of Kontoor Shares resident in the United States.
26. There will be no active trading market for the Kontoor Shares in Canada following the Spin-Off and none is expected to develop. Consequently, it is expected that any resale of Kontoor Shares distributed in connection with the Spin-Off will occur through the facilities of the NYSE or any other exchange or market outside of Canada on which the Kontoor Shares may be quoted or listed at the time that the trade occurs or to a person or company outside of Canada.
27. The Spin-Off to Filer Canadian Shareholders would be exempt from the prospectus requirement pursuant to subsection 2.31(2) of National Instrument 45-106 Prospectus Exemptions but for the fact that Kontoor is not a reporting issuer under the securities legislation of any jurisdiction in Canada.
28. Neither the Filer nor Kontoor is in default of any securities legislation in any jurisdiction of Canada.
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that the Exemption Sought is granted provided that the first trade in Kontoor Shares acquired pursuant to the Spin-Off will be deemed to be a distribution that is subject to section 2.6 of National Instrument 45-102 Resale of Securities.
DATED at Toronto this 14th day of May, 2019.
Ontario Securities Commission
“Mary Anne De Monte-Whelan”
Ontario Securities Commission