Timely Disclosure

Timely Disclosure

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

Category Archives: Directors & Officers

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CSA Review of Women on Boards and in Executive Officer Positions

Posted in Corporate Governance, Directors & Officers
On October 5, 2017, the staff of securities regulatory authorities (SRA) in Alberta, Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Quebec, Saskatchewan and Yukon published CSA Multilateral Staff Notice 58-309, Staff Review of Women on Boards and in Executive Officer Positions – Compliance with NI 58-101 Disclosure of Corporate Governance… Continue Reading

Majority Voting: Latest Developments

Posted in Continuous & Timely Disclosure, Corporate Governance, Directors & Officers
Stephen Erlichman recently wrote “Majority Voting: Latest Developments in Canada”, a short piece published in the March 22 edition of the Harvard Law School Forum on Corporate Governance and Financial Regulation. The article explains the latest developments in Canada with respect to 1) the Toronto Stock Exchange’s new guidance with respect to its majority voting listing requirement,… Continue Reading

Women on boards: Alberta adopts new disclosure requirements

Posted in Corporate Governance, Directors & Officers, Securities Regulatory Authorities
Disclosure requirements regarding the representation of women on boards and in senior management adopted in Alberta The Adoption On December 15, 2016 the Alberta Securities Commission (ASC) adopted amendments to National Instrument 58-101 Disclosure of Corporate Governance Practices (NI 58-101) and Form 58-101F1 Corporate Governance Disclosure (together with NI 58-101, Amendments).  The Amendments will come… Continue Reading

Fasken Martineau Publishes Directors’ Handbook for Shareholder Activism

Posted in Corporate Governance, Directors & Officers
Canada has proven to provide fertile ground for shareholders activism, in part due to a regulatory landscape that could be viewed as more shareholder friendly than some other jurisdictions. As a result, it is perhaps not surprising that activists have achieved significant success in Canada in recent years. It is apparent that shareholder activism is… Continue Reading

“Sorry, nothing personal” – the personal grievance exemption in Koh v Ellipsiz Communications Ltd.

Posted in Corporate Governance, Directors & Officers
Where does one draw the line between personal and business? It’s a timeless question, and was also the subject at issue in Koh v Ellipsiz Communications Ltd., 2016 ONSC 7345 (Koh), decided by the Ontario Superior Court of Justice on November 28, 2016. The facts of the case are these: Ellipsiz Communications Ltd. (ECL) is… Continue Reading

Canadian Issuers Continue To Have Success Against Activist Investors

Posted in Corporate Governance, Directors & Officers, Elections of Directors, Proxy Voting
As noted in the Globe and Mail’s recent article, “In Canada’s boardrooms, activist investors are striking out” (subscription to the Globe and Mail required), Canadian listed public companies have continued to have success against activist investors. In fact, since January 1, 2015, Canadian listed issuers have a perfect record against “professional” activists in formal proxy contests,… Continue Reading

Bill C-25: sweeping changes to corporate governance

Posted in Corporate Governance, Directors & Officers, Elections of Directors, Stock Exchanges
Bill C-25: Major changes proposed to director elections and other governance matters for CBCA reporting issuers On September 28, 2016, the federal Minister of Innovation, Science and Economic Development introduced Bill C-25, An Act to amend the Canada Business Corporations Act, the Canada Cooperatives Act, the Canada Not-for-profit Corporations Act, and the Competition Act. Bill… Continue Reading

Hemostemix Proxy Contest: Will Dissidents Succeed in Making a Clean Sweep of the Boardroom?

Posted in Corporate Governance, Directors & Officers, Proxy Voting
On August 22, 2016, a group of shareholders commenced a proxy contest to change the entire board of Hemostemix Inc. (Hemostemix), a widely-held, micro cap, clinical-stage biotechnology company (TSXV:HEM, OTCQX:HMTXF). Hemostemix’s business activities focus on the development and planned future commercialization of ACP-01, a proprietary, blood-derived cell product designed to treat critical limb ischemia, a… Continue Reading

Ontario Securities Commission Proposes Whistleblower Program

Posted in Continuous & Timely Disclosure, Corporate Governance, Directors & Officers, Securities Regulatory Authorities
The Ontario Securities Commission (OSC) has proposed OSC Policy 15-601 Whistleblower Program (Policy), which is designed to encourage individuals (whistleblowers) to report to the OSC information regarding serious misconduct related to securities or derivatives, with the prospect of receiving monetary awards in certain circumstances (whistleblower awards). Under the Policy, any whistleblower may submit information regarding… Continue Reading

2016 ISS and Glass Lewis Updates

Posted in Contested Situations, Corporate Governance, Directors & Officers, Proxy Voting, Stock Exchanges
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

The Canadian Coalition for Good Governance Releases Policy Paper on Proxy Access

Posted in Continuous & Timely Disclosure, Corporate Governance, Directors & Officers, Elections of Directors, Proxy Voting
The Canadian Coalition for Good Governance (CCGG) has released a policy paper entitled “Shareholder Involvement in the Director Nomination Process:  Enhanced Engagement and Proxy Access”. In the policy paper, CCGG refers to “proxy access” as the ability of shareholders to have meaningful input into the director nomination process, whether by being able to influence who… Continue Reading

Responding to the Activist: Compensating the Special Committee

Posted in Contested Situations, Corporate Governance, Directors & Officers, Mergers & Acquisitions
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 & Officers, Mergers & Acquisitions
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 & Officers, Mergers & Acquisitions
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 & Officers
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

Ontario Business Law Panel releases report recommending changes to key corporate and commercial legislation

Posted in Corporate Finance, Corporate Governance, Directors & Officers, Securities Registration & Registrants
In June 2015, a 13-member panel created by the Minister of Government and Consumer Services (Ontario), known as the Business Law Agenda Stakeholder Panel, released “Business Law Agenda: Priority Findings & Recommendations Report”. The panel reviewed corporate and commercial statutes in Ontario and made recommendations encompassing five key themes: establishing a process to keep corporate… 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 & Officers
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, Directors & Officers, Mergers & Acquisitions
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

New Venture Issuer Disclosure

Posted in Continuous & Timely Disclosure, Corporate Governance, Directors & Officers, Securities Regulatory Authorities
On May 22, 2014 the Canadian Securities Administrators (CSA) published, for a 90 day comment period, proposed amendments to National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102), National Instrument 41-101 General Prospectus Requirements (NI 41-101) and National Instrument 52-110 Audit Committees (NI 52-110) (collectively, the Proposed Amendments). In July 2011 and September 2012, the CSA… Continue Reading

OSC Releases Proposed “Comply or Explain” Governance Disclosure Requirements Regarding Director Term Limits and Gender Diversity

Posted in Corporate Governance, Directors & Officers, Securities Regulatory Authorities
On January 16, 2014, the Ontario Securities Commission (OSC) released proposed amendments to corporate governance disclosure requirements (Proposed Amendments). The Proposed Amendments follow on a consultation paper released by the OSC in July, 2013 and a subsequent public roundtable discussion regarding the paper.  A transcript of the roundtable discussion was also released. The OSC indicated… Continue Reading

Minister Moore Launches Consultation to Strengthen Canada’s Corporate Governance

Posted in Corporate Governance, Directors & Officers, Mergers & Acquisitions
On December 11, 2013, The Honourable James Moore, Minister of Industry, announced the launch of a public consultation on the Canada Business Corporations Act (CBCA) to help identify ways in which the CBCA can better promote important corporate governance policy objectives. The government listed the following issues that have been identified for review as part… Continue Reading

Speaking with the Enemy: How the OSC’s Dialogue with Martin Lipton Threatens Those Whom the OSC is Charged with Protecting

Posted in Contested Situations, Continuous & Timely Disclosure, Corporate Governance, Directors & Officers, Securities Regulatory Authorities
Renowned New York corporate lawyer Martin Lipton was in Toronto on October 8 preaching the evils of shareholder activism to anyone listening at the OSC Dialogue, an annual event hosted by the Ontario Securities Commission at which market participants are brought together on issues and trends facing the capital markets. Mr. Lipton’s message is stark… Continue Reading

The OSC announced a Roundtable to discuss the OSC Staff Consultation Paper 58-401 Disclosure Requirements Regarding Women on Boards and in Senior Management

Posted in Corporate Governance, Directors & Officers, Securities Regulatory Authorities
On September 23, 2013, the Ontario Securities Commission announced a roundtable to discuss the OSC Staff Consultation Paper 58-401 Disclosure Requirements Regarding Women on Boards and in Senior Management.   The roundtable will take place on Wednesday October 16th, 2013 from 9:00 a.m. to 11:00 a.m. at the OSC’s offices.  It will be hosted by OSC… Continue Reading

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

Posted in Contested Situations, Corporate Governance, Directors & Officers, 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