On January 11, 2023, Fasken, along with TMX Group Ltd. (“TMX Group”, which includes the Toronto Stock Exchange (“TSX”) and TSX Venture Exchange (“TSX-V”)) and Laurel Hill Advisory Group (“Laurel Hill”), hosted a conversation on disclosure and regulatory considerations for issuers leading into the 2023 proxy season.
Posted in Capital Markets, Contested Situations, Corporate Governance, Directors & Officers, Election of Directors, Proxy Voting, Securities, Shareholder Meeting
Continue Reading What if No One Gets Elected?
On January 13, 2022, Fasken and Laurel Hill Advisory Group (“Laurel Hill”) hosted a webinar on environmental, social and governance (“ESG”) considerations, with a focus on the climate change aspects of ESG that will be relevant to public companies. The webinar’s panelists were Cheryl Gasparet of ATS Automation Tooling Systems Inc. (“ATS”), Bill Zawada of Laurel Hill, Tanneke Heersche and Kai Alderson of Fasken and was moderated by Gordon Raman of Fasken.
For a further discussion of these items, please see the Fasken Proxy Season Preview 2022 webinar to watch the webinar and the Timely Disclosure: Proxy Season Review 2022 for a write-up on recent developments in corporate governance.…
On January 13, 2022, TMX Group Ltd. (Toronto Stock Exchange (“TSX”) and TSX Venture Exchange (“TSXV”)), Laurel Hill Advisory Group (“Laurel Hill”) and Fasken hosted a conversation on disclosure and regulatory considerations for issuers leading into the 2022 proxy season. The panel discussed six discrete areas of recent developments that will be relevant for public companies:
- diversity disclosure;
- an update on proxy voting guidelines;
- an update from TSX and TSXV;
- continuous disclosure updates;
- corporate law amendments; and
- capital raising.
For a further discussion of these items, please see the Fasken Proxy Season Preview 2022 webinar.…
Recently, the Ontario Securities Commission (“OSC”) released its reasons for a September order dismissing an application for exemptive relief from the minimum tender requirement under Canada’s securities take-over bid regime. ESW Capital, LLC (“ESW”), the largest shareholder of Optiva Inc. (“Optiva”), sought the relief in connection with a contested proposed take-over bid involving shares of Optiva (“Voting Shares”). The application is the first instance in which a Canadian securities regulator has been asked to grant exemptive relief from the minimum tender requirement. The OSC concluded that “there were no exceptional circumstances or abusive or improper conduct that undermined minority shareholder choice to warrant intervention…[and that] predictability is an important aspect of take-over bid regulation and [OSC] must be cautious in granting exemptive relief that alters the recently recalibrated bid regime”.
Continue Reading OSC Releases Reasons for Rejection of Application to Waive Minimum Tender Condition
On January 14, 2021, Laurel Hill Advisory Group (“Laurel Hill”) and Fasken hosted a webinar on ESG (environmental, social and governance) considerations of which companies should be aware for the upcoming 2021 proxy season. The webinar’s panelists were David Salmon of Laurel Hill and Emilie Bundock, Stephen Erlichman and Grant McGlaughlin of Fasken and was moderated by Gordon Raman of Fasken. Set out below are some of the comments made by the speakers on the webinar.
The importance of ESG considerations in today’s corporate governance model has developed over the past 50 years. In the early 1970’s the Milton Friedman view of corporations was the dominant business mindset. In a forceful New York Times article he said that business leaders that “believed business is not concerned ‘merely’ with profit but also with promoting desirable ‘social’ ends …[were]… preaching pure and unadulterated socialism”. Since that time, certainly in North America, corporations have assumed a central role in the growth of economies. With that central role has come the recognition that corporations play a greater role in society, as noted in 2017 by Larry Fink, the head of Blackrock. In his annual letter to CEOs he wrote: “ To prosper over time, every company must not only deliver financial performance, but also show how it makes a positive contribution to society. Companies must benefit all of their stakeholders, including shareholders, employees, customers, and the communities in which they operate.”…
Continue Reading Proxy Season Preview 2021: ESG Considerations
On January 14, 2021, the Toronto Stock Exchange (“TSX”), Laurel Hill Advisory Group (“Laurel Hill”) and Fasken hosted a conversation on important disclosure and corporate governance considerations for issuers leading into the 2021 proxy season. The panel discussed four discrete areas of recent developments in corporate governance which companies should be aware of before this upcoming 2021 proxy season:
- An Update from Proxy Advisory Firms
- An Update from the TSX
- Diversity Disclosure
- COVID-19: Lasting Repercussions
The webinar discussion featured Bill Zawada of Laurel Hill, Valérie Douville of the TSX, and Sarah Gingrich and Neil Kravitz of Fasken and was moderated by Gordon Raman of Fasken.
Continue Reading Proxy Season Preview 2021
Proxy advisory firms Institutional Shareholder Services (ISS) and Glass, Lewis & Co. (Glass Lewis) recently published updated guidelines governing shareholder meetings for the 2021 proxy season. The ISS Benchmark Policies for Canadian issuers and Glass Lewis Guidelines focused on key issues, including gender diversity, environmental and social risk oversight, board refreshment, and other corporate governance…
Several months ago we asked whether a COVID-19-related impact on a business might constitute a “Material Adverse Change” (referred to as a “MAC,” or a material adverse effect, “MAE”) under merger agreements, and we noted the near complete absence of case law on the issue in Canada (see: “COVID-19 and Material Adverse Change Provisions…
The Ontario Securities Commission, like several other regulatory investigators, has extensive power to compel testimony and require the disclosure of documents and information. A recent decision of the OSC, B (Re) (2020 ONSEC 21), has highlighted a gap in the Commission’s power to compel testimony from a witness where such testimony may constitute a breach of the witness’s contractual obligations to a third party.
Staff of the Commission is conducting an investigation pursuant to an investigation order issued by the OSC under section 11 of the Securities Act. Investigation orders empower Staff to issue a summons pursuant to section 13 of the Act, to compel an individual to provide oral testimony under oath and to provide documentary evidence. Section 16 of the Act prohibits the recipient of a summons from disclosing information relating to the summons or the investigation, subject to narrow exceptions.
Staff served upon an individual, identified only as “B”, a summons under section 13 of the Act. Although B was prepared to cooperate with Staff, B was concerned that doing so would violate B’s employment contract, which imposes confidentiality over all matters relating to B’s employment without an exception that is relevant to a regulatory investigation.
Continue Reading Recent OSC Decision Raises Uncertainty for Witnesses Responding to a Summons