Timely Disclosure

Timely Disclosure

Updates and Commentary on Current issues in M&A, Corporate Finance and Capital Markets

Category Archives: Proxy Contests

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Use of Proxies within the Context of a Limited Partnership

Posted in Contested Situations, Proxy Contests, Proxy Voting
A recent case in Manitoba has explored certain issues relating to the use of proxies within the context of a limited partnership.  The case, 177061 Canada Ltd. et al. v. 5771723 Manitoba Ltd. et al., 2016 MBQB 40, discusses two points of interests relating to proxies in a limited partnership setting (and, by logical extension,… Continue Reading

Lessons from Trump’s Victory: 10 Questions that every target of shareholder activism should be asking itself

Posted in Contested Situations, Corporate Governance, Proxy Contests
In light of Donald Trump’s unorthodox campaign and unexpected victory, it may be worthwhile to consider whether there are any strategy lessons for those engaged in shareholder activism.  After all, a proxy contest is essentially a form of political campaign. Is angry rhetoric on the part of the activist more galvanizing than reasoned argument? In… Continue Reading

CSA Adopt Changes to Early Warning Rules but Maintain 10% Reporting Threshold

Posted in Contested Situations, Continuous Disclosure, CSA, Derivatives, Proxy Contests, Securities Regulatory Authorities
On February 25, 2016, the Canadian Securities Administrators (CSA) announced the adoption of new rules enhancing the reporting requirements relating to the early warning reporting system. The new rules are expected to come into force on May 9, 2016. The original proposals were published on March 14, 2013 (see our April 9, 2013 publication Canadian Securities… Continue Reading

2016 ISS and Glass Lewis Updates

Posted in Contested Situations, Corporate Governance, Directors and Officers, Proxy Contests, Proxy Voting, Stock Exchanges, TSX
Institutional Shareholder Services (ISS) and Glass, Lewis & Co. (Glass Lewis) have both released updates to their Canadian proxy voting recommendation guidelines for the 2016 proxy season. The following summary outlines the significant changes made by ISS (ISS Updates) and Glass Lewis (Glass Lewis Updates) to their respective Canadian proxy advisory guidelines. ISS Definition of… Continue Reading

Responding to the Activist: Compensating the Special Committee

Posted in Contested Situations, Corporate Governance, Directors and Officers, Mergers and Acquisitions, Proxy Contests
As we have noted in our previous post, a special committee appointed to lead a company’s response to an activist can expect to receive a greater degree of public scrutiny, but may take comfort from the fact that the legal standard against which its members will be judged will not change.  While that should provide… Continue Reading

Responding to an activist: While special committee members may face greater public scrutiny, they are not subject to a higher legal standard

Posted in Contested Situations, Corporate Governance, Directors and Officers, Hostile/unsolicited Bids, Mergers and Acquisitions, Proxy Contests
As we discussed in our previous post, a special committee established in response to an activist’s approach should be comprised of independent board members with the relevant expertise and the time to participate meaningfully. While we have written about some of the benefits to the company of incorporating a special committee process into its response… Continue Reading

Responding to an activist: When appointing a special committee, select the members with care

Posted in Contested Situations, Corporate Governance, Directors and Officers, Hostile/unsolicited Bids, Mergers and Acquisitions, Proxy Contests
As we discussed in our previous post, when a board finds itself in the crosshairs of an activist, establishing a special committee of unconflicted directors with clear marching orders from the board may allow for more thoughtful decision-making under pressure and lend credibility to the company’s response, particularly where management’s performance is under attack.  Equally… Continue Reading

When responding to an activist, a special committee’s credibility is enhanced by a clear mandate from the board

Posted in Contested Situations, Corporate Governance, Directors and Officers, Hostile/unsolicited Bids, Proxy Contests
As we discussed in our previous post, a board faced with the arrival of an activist on the scene can benefit from establishing a special committee of independent directors.  While a quick response time is one of the more obvious benefits of having a small group of directors lead the charge, a committee of unconflicted… Continue Reading

When an activist comes knocking, consider a special committee to develop a quick and credible response.

Posted in Contested Situations, Corporate Governance, Directors and Officers, Hostile/unsolicited Bids, Proxy Contests
Much has been written about how companies can prepare for, and hopefully avoid, a confrontation with an activist shareholder.  While many boards are heeding the call for greater shareholder engagement and oversight of management, each year witnesses a significant number of activist campaigns and proxy contests.  So what is a board to do when its… Continue Reading

Study of hostile take-over bids in Canada reveals that a change of control is not inevitable

Posted in Contested Situations, Corporate Governance, Defensive Tactics, Directors and Officers, Hostile/unsolicited Bids, Mergers and Acquisitions, Proxy Contests, Shareholder Rights Plans / Poison Pills, Take-Over Bids
Fasken Martineau’s 2015 Canadian Hostile Take-Over Bid Study sets out the results of a ten-year empirical analysis of hostile take-over bids in Canada. Key findings include: When initiating a public contest for control, a hostile bidder was successful more than half the time; however, a change of control was by no means inevitable, with targets… Continue Reading

2015 ISS and Glass Lewis Updates

Posted in Contested Situations, Mergers and Acquisitions, Plan of Arrangement, Proxy Contests, Shareholder Rights Plans / Poison Pills, Take-Over Bids, TSX, Uncategorized
Institutional Shareholder Services (ISS) and Glass, Lewis & Co. (Glass Lewis) have both released updates to their Canadian proxy voting recommendation guidelines for the 2015 proxy season. The items updated include those pertaining to the definition of independence, advance notice requirements, by-law amendments, private placements, treatment of majority voting policies, shareholder rights plans and advance… Continue Reading

Canadian Proxy Contest Study – 2014 Update

Posted in Contested Situations, Corporate Governance, Hostile/unsolicited Bids, Mergers and Acquisitions, Proxy Contests, Proxy Voting
A follow up to our ground-breaking 2013 Canadian Proxy Contest Study, our 2014 Update sheds additional light on some of the issues and trends that we previously identified and raises a few new issues for further thought.  Among the highlights of last year’s Canadian market experience in proxy contests were the following: 2013 witnessed a… Continue Reading

2014 Updates to Canadian Proxy Advisory Guidelines

Posted in Contested Situations, Corporate Governance, Executive Compensation, Mergers and Acquisitions, Proxy Contests, Proxy Voting
Institutional Shareholder Services (ISS) and Glass, Lewis & Co. (Glass Lewis) have both released updates to their Canadian proxy voting recommendation guidelines for the 2014 proxy season. Glass Lewis released its updates on December 13, 2013 and ISS released its updates on November 21, 2013. The items updated include those pertaining to corporate governance standards,… Continue Reading

Give to Caesar what is due to Caesar II: On the supposed inconsistency between corporate law and poison pill regulation by the Canadian Securities Regulators

Posted in Contested Situations, CSA, Defensive Tactics, Hostile/unsolicited Bids, Proxy Contests, Securities Regulatory Authorities
This is the second installment of a series of posts in which I will be critically examining a number of arguments made by proponents of the view that the time has come for Canadian securities regulators to “vacate the field” of poison pill regulation, leaving oversight of shareholder rights plans to the courts. Evaluating the… Continue Reading

Give to Caesar What is Due to Caesar: Foundations for an Active Role for Securities Regulators in the Regulation of Poison Pills

Posted in Contested Situations, CSA, Defensive Tactics, Hostile/unsolicited Bids, OSC, Proxy Contests, Securities Regulatory Authorities
A colleague recently suggested that my last contribution to Timely Disclosure called to mind the more familiar view, which has gained in prominence over the past half-decade or so [1], that the time has come for Canadian securities regulators to “vacate the field” of poison pill regulation, leaving oversight of shareholder rights plans to the courts. … Continue Reading

OSC Staff Notice 11-768 – Notice of Statement of Priorities for financial year to end March 31, 2014

Posted in Corporate Governance, Directors and Officers, OSC, Proxy Contests, Proxy Voting, Securities Regulatory Authorities
On June 27, 2013, the Ontario Securities Commission (OSC) released OSC Staff Notice 11-768 Notice of Statement of Priorities for financial year to end March 31, 2014 (Statement of Priorities).  The Statement of Priorities sets out the key regulatory priorities of the OSC for its 2013-2014 financial year. While a number of issues identified by… Continue Reading

Notice-and-Access Procedure Now Available to Send Proxy-Related Materials to Securityholders

Posted in Continuous Disclosure, Proxy Contests, Securities
On February 11, 2013, new amendments to National Instrument 54-101 Communications with Beneficial Owners of Securities of a Reporting Issuer and to National Instrument 51-102 Continuous Disclosure Obligations came into force, providing reporting issuers with a new notice-and-access procedure to send proxy-related materials to registered holders and beneficial owners of securities. Under notice-and-access, a reporting… Continue Reading