Topic: Corporate Governance

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Forum selection by-law

On May 14, 2015, Walied Soliman and Orestes Pasparakis, co-chairs of Norton Rose Fulbright’s Special Situations Team, were joined by Cathy Singer and Ruth Wahl, Senior Partners at Norton Rose Fulbright, to host a webinar, “Important Corporate Governance Development: Forum Selection By-law”.

As discussed during the webinar, proposed text for a forum selection by-law can be found here.  A copy of the webinar will be uploaded shortly.

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Webinar: Important corporate governance development – Forum selection by-law

A new “Forum Selection By-law” was recently adopted and passed at the annual general meeting of a major public company in Canada.

On May 14, 2015, Walied Soliman and Orestes Pasparakis, co-chairs of Norton Rose Fulbright’s Special Situations Team, will be joined by Cathy Singer and Ruth Wahl, Senior Partners at Norton Rose Fulbright, to discuss this exciting new development in corporate governance and what it means for your company, your shareholdings and the Canadian market.

Overview of topics to be discussed:

  • What the Forum Selection By-law does and how it protects companies
  • The legal support for its implementation
  • Whether
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Hot topic: Proxy access

The Canadian Coalition for Good Governance (the “CCGG”) has stated that proxy access is high on their agenda. Proxy access generally refers to the ability of shareholders to nominate their own candidates for the board and have those nominees included in management proxy materials alongside management nominees. The CCGG is in the process of drafting its policy on the topic.

Stephen Erlichman, the Executive Director of the CCGG, summarized the CCGG’s concerns with the current Canadian proxy access approach:

“We have no proxy access in Canada other than this provision in most of the corporate statutes that … Continue Reading

Board diversity update: Is female board representation on the rise?

Nearly seven months have passed since the formal amendments to National Instrument 58-101 Disclosure of Corporate Governance Practices and Form 58-101F1- Corporate Governance Disclosure were announced by securities regulators, imposing enhanced disclosure requirements with respect to female representation on boards (the Gender Disclosure Requirements). Although the new requirements do not mandate quotas, they impose stringent disclosure obligations on TSX-listed issuers.

With International Women’s Day just behind us, just how well are Canadian companies doing with gender diversity?

The Canadian Board Diversity Council’s 2014 Annual Report Card (the Report Card) shows that there has been some progress: in … Continue Reading

Board renewal: A focus on board performance

Long-serving boards and board renewal policies may face increasing scrutiny in the 2015 proxy season. Canada’s Institute of Corporate Directors (ICD) recently released a position paper, Beyond Term Limits: Using Performance Management to Guide Board Renewal (the ICD Paper) which calls on boards of directors to rethink their board renewal policies and encourages a more proactive and flexible approach to renewal, focusing on director performance and cautioning against over-reliance on term limits.

The ICD Paper questions the effectiveness of term limits to ensure adequate board renewal, and instead encourages boards to center their renewal policy around comprehensive … Continue Reading

Institutional investors strongly support shareholder activism, according to new study

Institutional investors represent perhaps the most important segment of shareholders that both management and dissidents must appeal to in the course of an activist campaign.

A new study of institutional investors published by FTI Consulting, Inc. (the Study), a leading US-based corporate consultancy firm, reveals interesting findings about the attitudes of such investors toward shareholder activism.  The Study, which surveyed over 100 institutional investors representing $1.7 trillion in assets, shows that institutions have become increasingly engaged in their portfolio companies and more supportive of activist shareholders.

A strong majority of institutional investors now view shareholder activism positively, with 76% … Continue Reading

Glass Lewis Proxy Paper Guidelines: Updates for 2015

Yesterday, Glass, Lewis & Co., LLC (Glass Lewis) released a new version of its Proxy Paper Guidelines (the Guidelines) (updated as of December 30, 2014), previously released on November 5, 2014.

Key changes in the 2015 Guidelines as compared to the 2014 Guidelines include:

1              Majority voting – Glass Lewis recommends that, for uncontrolled companies listed on the Toronto Stock Exchange (TSX), shareholders withhold votes from all members of those companies’ governance committees if they have not adopted a majority voting policy.  This recommendation was updated to align the Guidelines with the TSX’s announcement on February 13, 2014 that uncontrolled … Continue Reading

Decision-making and Institutional Investors: Prevalent Factors and Key Market Distinctions

According to the recently published Global Institutional Investors Insight survey, shareholder activism is on the rise. The survey, which canvassed over 500 institutional investor and sell-side research analysts from across North American, European and Asian markets, reports that more than three quarters (77%) of those surveyed believe that activism levels will increase in the coming three years and become more prevalent worldwide.

The survey also highlights the four most prevalent factors that investors evaluate when considering whether to invest in a company:

  • Good track record in meeting earnings expectations (65% of investors).
  • An equity story that is clearly defined
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Proxy solicitation: Not a matter of right in Alberta

The increasing prevalence of shareholder activism in Canada has significantly impacted issuers and investors alike in the Canadian capital markets.

Consequently, an understanding of the Canadian regulatory landscape governing activist activities has become increasingly important for both sides of an activist struggle. A key element of this understanding is acknowledging that the regulatory landscape is not always uniform from province to province.

Proxy solicitation in respect of Alberta corporations which are reporting issuers is governed under two legislative schemes: Part 12 of the Business Corporations Act (Alberta) (the ABCA) and Part 9 of National Instrument 51‑102 – Continuous Disclosure Continue Reading

Corporate Governance 2014: Corporate Governance in Special Situations

Norton Rose Fulbright Canada LLP and Lexpert will again be co-hosting two full-day seminar sessions entitled “Corporate Governance 2014: Corporate Governance in Special Situations” on December 4th (Toronto) and December 8th  (Calgary). These seminars will include discussions on corporate governance developments in special situations, with specific focus on the trends, tools and defences used during proxy fights, M&A transactions, and situations of financial distress.

The seminars will be co-chaired by our partners, Walied Soliman and Orestes Pasparakis, who will be joined by the following speakers.

Norton Rose Fulbright Speakers:

  • Ava Yaskiel, Partner
  • Justin Ferrara, Partner
  • Cathy
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‘Wolf Packs’ and Other Recent Trends in Hedge Fund Activism

The recent increase in hedge fund activism is “hyperbolic” and should be carefully assessed, according to two notable scholars, John C. Coffee Jr. (corporate law; Columbia) and Darius Palia (corporate finance; Rutgers), who have just published on comprehensive study on hedge fund activism entitled, “The Impact of Hedge Fund Activism: Evidence and Implications.” The authors address various perspectives on the benefits and repercussions of hedge fund-led corporate change, relying on statistical analysis and market data to answer four questions:

  • Who are the targets of activism?
  • Does hedge fund activism create real value?
  • What are the sources of gains
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ISS Updates its Proxy Voting Guidelines for the 2015 Season

On November 6, 2014, Institutional Shareholder Services (ISS) released updates to its Canadian proxy voting guidelines for the 2015 proxy season.  The voting guidelines are effective for meetings held on or after February 1, 2015.  The following is a summary of the most significant changes.

Director Elections

  • Director Independence: ISS has made several changes to their definition of “independence” including:
    • that former CEOs will now be subject to a five year “cooling off” period, after which ISS will classify him/her, on a case-by-case basis, to be independent unless other relationships exist with the issuer or executive officer. Factors taken
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2014 Q3 Proxy Update

The 2015 proxy season is fast approaching, PwC and Broadridge released a quarterly research report  which reviews proxy related data from 4,113 shareholder meetings
held between January 1 and June 30, 2014 and  highlights several themes and trends that may inform how shareholders and companies will interact on four key issues:

Director Elections: Director elections continue to attract widespread voting, with 93% of elections at large companies garnering votes between 90-100%. In contrast, only 75% of voted shares were cast in the 90-100% range for small-cap firms. Moreover, of the 22,554 directors up for election, roughly 5% failed to … Continue Reading

Defensive Tools in Shareholder Activism: The “Voting Pill”

In today’s Financial Post,  Barbara Shecter highlighted the use of modified shareholder rights plans (colloquially known as “poison pills”) as an emerging defensive tool against opportunistic shareholder activism in Canada.  Traditionally, poison pills are used by boards of target companies as defensive tools to guard against unsolicited takeover bids.  By expanding the typical definition of “beneficial ownership” in a poison pill (which is typically limited to concepts of ownership and is used to determine whether the poison pill is triggered) by including securities that a shareholder does not own but has a right to vote or the right to … Continue Reading

Enhanced Disclosure Requirements on Women in the Boardroom

The securities regulators in 7 provinces and 2 territories announced on Wednesday, October 15, 2014, that the final version of the amendments to National Instrument 58-101 Disclosure of Corporate Governance Practices (NI 58-101) and Form 58-101F1 Corporate Governance Disclosure (Form 58-101F1) would include stringent requirements pertaining to female representation on boards and in executive officer positions. Securities regulators in Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Quebec and Saskatchewan have all signed on to the long-awaited amendments.

Disclosure Requirements

The enhanced disclosure requirements pertaining to females on boards, while significant, … Continue Reading

Golden Leashes: Is Regulatory Intervention Warranted?

In the most recent volume of the Canadian Business Law Journal, Edward M. Iacobucci, Professor with the Faculty of Law at the University of Toronto, addresses certain arguments against dissident shareholders providing their director nominees with a future incentive if the target company’s share price increases following such nominee’s election to the board.1  These special compensation arrangements (or “golden leashes” as they are sometimes called) are hereafter referred to as “arrangements” and first emerged in Canada during the 2013 Agrium/Jana proxy fight, which was recently discussed by my colleague, Saeed Teebi, here.

Iacobucci explores some of the arguments … Continue Reading

CSA Drops Early Warning Report Proposals

The Canadian Securities Administrators (the CSA) provided an update today on its proposed amendments to the early warning system regime. Specifically, the CSA announced that it has determined that they will not proceed with: (a) the proposal to reduce the reporting threshold from 10% to 5%; and (b) the proposal to include “equity equivalent derivatives” for the purposes of determining the threshold for early warning reporting disclosure.

The CSA made their determination, in part, based on the views expressed by various market participants in the over 70 comment letters that the CSA received, which included views of concern about: … Continue Reading

A Changing Climate for Proxy Advisory Firms: Developments in the US and Canada

The role of proxy advisory firms in the marketplace has been a focal point on both sides of the border as recent guidance by the US Securities and Exchange Commission (SEC) and the Canadian Securities Administrators (CSA) highlights the powerful influence of proxy advisory firms and need for increased accountability and transparency.

In the US, the SEC Staff released a bulletin in June entitled Proxy Voting: Proxy Voting Responsibilities of Investment Advisers and Availability of Exemptions from the Proxy Rules for Proxy Advisory Firms (the Bulletin) which places some onus on the investment advisor, as … Continue Reading

Trends and Predictions in Canadian Proxy Contests

Kingsdale Shareholder Services has released its 2014 Proxy Season Review.  In its report, Kingsdale discusses trends observed in 2014, predictions for the future, and gives its key recommendations for companies in the Canadian marketplace.  In reviewing 2014 and comparing it to the previous year, Kingsdale observes:

  • By the numbers – the total number of proxy contests observed in 2014 remained at the elevated level seen beginning in 2008, but was down slightly from 2013.  Kingsdale suggests a number of factors for the relative decline, including stronger capital markets which have helped to mask under-performers’ deficiencies, the implementation of structural
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Canadian Securities Administrators to Propose Amendments to Canadian Take-over Regime

The Canadian Securities Administrators (CSA) have announced that they intend to publish for comment significant amendments to the Canadian take-over bid regime in the first quarter of 2015. The amendments are an initiative of all CSA members and are intended to strike a fair balance between the interests of bidders and the boards of directors and shareholders of target issuers in hostile take-over bids.

While the proposals do not recognize a target board’s right to “just say no” to and block a hostile bid, the proposals will provide boards of directors of target issuers with additional time to respond to … Continue Reading

Shareholder Activism in 2014: Half Year Review

Activist Insight recently released its half-year review.  Activist Insight, which provides market analysis and chronicles critical developments in activist investing, made the following observations regarding U.S. activist investing trends for the first half of 2014, including:

  • While the US continued to dominate public instances of activism (with 127 campaigns initiated), a significant number were waged throughout Europe, Canada and the rest of the world.
  • The average US stock held by an activist for at least two months in H1 2014 appreciated by an annualized 51.0%*, compared with 16.4% for the S&P 500.
  • The proportion of activists seeking board representation
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The Rise of Policy Activists?

In a recent twist on activist investing, People for the Ethical Treatment of Animals (PETA) purchased shares in SeaWorld in an effort to address conduct it considers animal cruelty.  According to PETA, it bought “the smallest number of shares necessary” to give it “the right to attend and speak at annual meetings and to submit shareholder resolutions asking for policy changes”.

SeaWorld is not the only corporation PETA has claimed ownership in.  PETA is using this same strategy with companies such as General Electric, Schering-Plough and 3M, and with fast food restaurants like McDonald’s and Wendy’s.  Although … Continue Reading

Dual-Class Shares May Increase Value for Shareholders

A significant issue regarding the corporate governance of public companies arises from questions regarding the optimal role of shareholders in navigating a company’s direction.  The one share, one vote view of the world posits that shareholder democracy is best achieved when the division of control amongst shareholders holds true with the division of economic ownership.  In contrast, a number of major corporate players have governance and share ownership structures that allow certain classes of shareholders a disproportionate amount, relative to their economic ownership, of control with respect to strategic decision-making.  While these kinds of structures may initially appear contradictory to … Continue Reading

Shareholder Activism in M&A: 2014 Trends

Buoyed by an improved economic climate and unprecedented success in 2013, shareholder activists are expected to significantly influence the 2014 M&A landscape. As shareholder activism becomes more widespread, activists are becoming increasingly ambitious and creative in their approach.

Last year saw a rise in the power and influence of activist hedge funds. In 2013, activist hedge funds managed over $93 billion, a 42% increase from 2012. With more capital, activist hedge funds have been able to target larger and more sophisticated companies.

Shareholder activists are also looking to expand their geographic reach. Despite confidence in the North American market, in … Continue Reading

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