Topic: Governance and directors’ liability

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A no-shop provision can be a buyer’s best friend, while exceptions may be the target’s best friend

Deal protections are an important aspect of M&A transactions. Buyers will typically negotiate with the target of the transaction to include all kinds of deal protections mechanisms, including no-shop provisions, matching rights, and break fees payable to the buyer. No-shop provisions in particular restrict the ability of the target board to solicit alternative proposals (including negotiations with third parties) and recommend alternative transactions to shareholders. Receipt of an unsolicited proposal may trigger a notice requirement. However, no-shop provisions can be limited in scope. Three common and interrelated “exceptions” to no-shop provisions are fiduciary out, go-shop, and window-shop provisions. While the … Continue Reading

New share register requirements! Working towards greater corporate transparency

In November 2018, the Standing Committee on Finance released a report to address the issue of money laundering and terrorist financing in Canada. The Committee’s first recommendation emanated from the corporate registry regime in the United Kingdom (“UK”). In an attempt to emulate the UK’s system, the Committee recommended that the Canadian government work with the provinces and territories to maintain a register for all legal persons and entities with significant control over a corporation.

Requirements for share registers

On June 13, 2019, previous amendments to the Canada Business Corporations Act (“CBCA) came into force. These amendments, introduced … Continue Reading

Full disclosure: financial assistance and related corporations

Many transactions involve financial assistance by means of a loan, guarantee or otherwise between related corporations. Often, an important consideration in these circumstances is: does such financial assistance trigger any disclosure obligations? Generally, a corporation may give financial assistance to any person (including an individual, partnership, association, body corporate, trustee, executor, administrator or legal representative) for any purpose (s. 45(2) of the Business Corporations Act (Alberta) (the Act)). However, a corporation must disclose to its shareholders financial assistance that the corporation gives to:

  1. a shareholder or director of the corporation or of an affiliated corporation;
  2. an associate of a
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Bill C-97 amendments to the CBCA: broadening the scope of management considerations

The 2019 budget implementation bill (Bill C-97) contains significant amendments to the Canadian Business Corporations Act (CBCA), which should be noted by organizations wishing to acquire Canadian targets. On April 30, 2019, Bill C-97 passed its second reading and was referred to Committee in the House of Commons. The amendments to the CBCA create the following new considerations and/or obligations for the management of corporations governed under the CBCA.

“Best Interests of the Corporation” – more than solely shareholder interests

Bill C-97 aims to consolidate the law on the fiduciary duty of directors and officers by codifying … Continue Reading

Cannabis and corporate governance: time for grow ops to grow up?

Since the legalization of recreational cannabis on October 17, 2018, the Canadian cannabis industry has experienced a significant boom. In its 2018 Cannabis Report, Deloitte predicted that legal sales of marijuana are expected to generate up to $4.34 billion in 2019. Moreover, and as previously discussed, Health Canada has introduced draft regulations governing the production and sale of edibles, extracts, and topicals, potentially providing additional growth opportunities for Cannabis companies to partner with the traditional food and beverage industry.

As the industry continues to grow, it is worth asking the question, how do these companies stack up from … Continue Reading

A pragmatic approach to climate risk

Climate change is a reality we cannot ignore. Media report season after season record-breaking heat, drought, bushfires, etc. The impact on businesses is real, and investors are increasingly pushing for more detailed disclosure on climate change-related issues.

According to the Wall Street Journal, companies are expected to face 75 climate-related shareholder proposals this AGM season. Generally, the questions investors are asking can be divided into two categories:

  1. What corporate social responsibility initiatives are you adopting to mitigate your company’s contribution to climate change?
  2. Is your company particularly exposed to any risks that climate change is expected to exacerbate?
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Corporate governance 101: increasing minority shareholder voting power

If you are a minority shareholder you may feel a lack of control over corporate matters because majority shareholders, well, hold the majority of the voting rights. Certain shareholder agreements can help alleviate this lack of control and provide you with greater voting power.

Shareholder Agreements

Simply put, a shareholder agreement is a private contract between two or more shareholders of a corporation that supplements the corporation’s governing statute(s) and constating documents (i.e. articles of incorporation and by-laws). A shareholder agreement, particularly where it is not a unanimous shareholder agreement, should never contradict or conflict in any way with the … Continue Reading

Shareholder responsibility over auditor tenure

Concerns about the term or length of auditor tenure have returned to relevance following the recent fall of industry giants, providing good reason for Canadian companies to reconsider their audit and governance practices.

In 2016, the European Union implemented mandatory rotations of audit firms for public companies, which was similarly considered, though rejected, in the United States. While Canada has not implemented mandatory auditor rotation, the annual appointment of auditors is an area in which shareholders have considerable power and responsibility, particularly following transactions that substantially change the nature and structure of a company.

Each year, business corporations legislation requires … Continue Reading

Look to the future: a tip for analyzing corporate culture in an era of evolving shareholder activism

2018 promises to be a year in which corporate culture will likely become an even more important focal point for investors and activists.

There’s no denying that social media has drastically altered the dynamic for public companies. Today, shareholders are increasingly calling upon corporations to take public stances on various social (and sometimes political) issues, some of which may be wholly unrelated to the corporation’s purpose. In a climate where shareholders are increasingly judging corporations based on non-traditional criteria, public companies can no longer spout platitudes about corporate governance and social values without risking being singled out. More than ever, … Continue Reading

Canadian Securities Administrators are seeking comments on soliciting dealer arrangements

The Canadian Securities Administrators (the “CSA”) have issued CSA Staff Notice 61-303 and Request for Comment – Soliciting Dealer Arrangements (the “Notice”) on the use of soliciting dealer arrangements. “Soliciting dealer arrangements” generally refer to agreements entered into between issuers and investment dealers under which the issuer agrees to pay to the dealers a fee for each security successfully solicited to tender to a bid in the case of a take-over bid, or to vote in favour of a matter requiring securityholder approval. In many cases, the payment of any fee is contingent on “success” and/or … Continue Reading

Making change management a post-closing priority

As we have previously discussed, successfully directing the integration of two businesses following the closing of an M&A transaction is vital to realizing the value of a merger. The process by which post-closing change within a business is overseen – often referred to as “change management” – plays a key role in determining whether or not the integration process is smooth and the objectives of the merged entity are achieved. According to a report by Bain & Company, people, culture, change management and communication have been identified by business leaders as some of the main causes of poor … Continue Reading

Shareholders’ agreements: right of first refusal versus right of first offer

It is common for shareholders of a closely held corporation to set out the rules that govern their relationship vis-à-vis one another in the form of a shareholder agreement. One key concern for shareholders when negotiating a shareholder agreement is controlling the transfer of shares to unknown or undesirable persons, while still maintaining liquidity in their shares. A common mechanism used to address this concern is a right of first refusal (ROFR).

Right of first refusal

A ROFR provides non-selling shareholders with the right to accept or refuse an offer by a selling shareholder after the selling shareholder … Continue Reading

Director distraction and successful M&A

Members of a board of directors play a crucial role in the decision making processes of a company, which shape the company’s practices, strategies, future goals and overall success. Directors who are not are primarily employed by the subject company or those who sit on multiple boards may be at a risk of neglecting some of their key director responsibilities if they are preoccupied with too many things at once. This is not to say that busy directors will inevitably get distracted and neglect their responsibilities, but that directors ought to be mindful of juggling too many roles at once … Continue Reading

Shareholder activism in M&A

As noted by Kingsdale Advisors in a recently published report, corporate directors and their legal advisors continue to pay insufficient attention to shareholder activism in M&A. The authors of the 2017 special report caution that not only have shareholder activists been emboldened by post-financial crisis legislative changes that afford shareholders greater say, but that these investors also enjoy access to ever more sophisticated playbooks. Further, they stress that activism in M&A is no longer the exclusive domain of entrepreneurial hedge funds; traditionally passive investors, including large asset managers and even pension funds, are increasingly willing to ensure that their … Continue Reading

Socially responsible investing: considerations for private companies

Certain consumers seeking out companies that have socially responsible products and services or that have a focus on environmental, social and corporate governance (ESG) is nothing new. Recently, however, evidence has emerged suggesting that investors, both retail and institutional, are increasingly taking these social factors into account when making decisions about how to allocate their investments.

Responsible investing

According to a recent study by the Responsible Investment Association, the Canadian market for responsible investments has grown by 49% over the past two years and has surpassed $1.5 trillion in assets under management. This suggests that Canadians are becoming … Continue Reading

The InterOil decision: robust and independent fairness opinion required

A recent decision of the Yukon Court of Appeal, InterOil Corporation v Mulacek, has potentially significant consequences for corporate governance practices in the context of plans of arrangement.

Fairness opinions in plans of arrangement

When a corporation proposes a plan of arrangement to its shareholders, it is generally considered a best practice of corporate governance to obtain a fairness opinion that assesses the financial fairness of the arrangement for affected shareholders. The fact that the directors sought expert financial advice evidences compliance with their fiduciary duties and, when applying for court approval, is an important factor in persuading the … Continue Reading

Power and utilities: ongoing attraction for investors

EY’s review of Q3 2016 deal activity within the power and utilities (P&U) sector shows ongoing stability to be expected into 2017. Highlights from the quarter include ongoing premiums on prices for regulated assets, increased investment in renewables and diversification into disruptive technologies.

Regulated network assets (i.e., transmission and distribution assets) are described as “safe havens” for investment, translating into transactions worth US $23.6 billion in Q3 2016. EY reports that this sum accounted for more than half of the quarter’s overall deal value. Investors view regulated network assets as stable with long-term returns in a … Continue Reading

Impact of parent-subsidiary liability and policy developments on M&A in the extractive sector

Until recently, Canadian parent companies in the extractive sector could be relatively confident that any risks created by the actions of their overseas subsidiaries would be reputational in nature. Between the doctrine of separate corporate personality and the tendency of Canadian courts to be unwilling to accept jurisdiction over tort claims based overseas, Canadian parent companies have traditionally faced limited legal risks from allegations of human rights or corporate social responsibility (CSR) violations allegedly perpetrated by subsidiaries overseas. Over the past several months, however, a number of developments have taken place which have undermined this insulation from liability … Continue Reading

Cultural compatibility: predictor of a transaction’s potential success

We have previously reported on human capital considerations in M&A transactions; in this post we consider how corporate culture affects a deal’s possibility of success. While qualitative considerations often sit on the backburner in the lead up to a deal, compatibility of corporate cultures can be an important factor in determining whether a merger or acquisition will be successful. According to a survey by Bain & Co., executives have indicated that the number one cause for a deal’s failure to achieve promised value is due to clashes in corporate culture.

Corporate culture is multifaceted and can include behavioural … Continue Reading

Boards with women, M&A activity and social identity theory: a call for more diversity on boards

In an earlier post we commented on the importance of improving a company’s risk profile and performance by implementing methods and practices to ensure the success of gender diversification policies. Citing an academic study on management diversity entitled “Do Women Stay Out of Trouble,” we pointed out that gender diversification has a financial benefit because, according to the study, women in management are usually more risk-averse and law abiding, thereby protecting firms from various types of lawsuits. But does this mean that all women are risk-averse, or that the presence of women ensure that boards make their decisions … Continue Reading

The role of the strategic board in value creation

It is not in dispute that the role of the board of directors is to provide oversight of management and advise on the strategic direction of the corporation. However, the delineation of roles and responsibilities between management and directors in setting corporate strategy can often become blurred.

In collaboration with The Boston Consulting Group and RBC Capital Markets, we have released a paper offering a fresh perspective on an enhanced role for the board of directors in value creation and setting corporate strategy. We recommend that board members should engage regularly with management to critically examine value creation alternatives with … Continue Reading

Management diversity: do women in management lower a firm’s risk profile?

This blog post originally appeared in Norton Rose Fulbright’s Special Situations blog.

In an earlier post, we commented on the formal amendments to National Instrument 58-101 – Disclosure of Corporate Governance Practices and Form 58-101F1 – Corporate Governance Disclosure imposing enhanced disclosure requirements with respect to female representation on the boards and in executive officer positions of TSX-listed issuers.  As we discussed earlier this year, the correlation between gender diversity on boards and company performance is compelling from an investment value perspective.

It is also beneficial for issuers to recruit women into upper management roles. In a … Continue Reading

Female representation on boards: how does your company stack up?

boardroom-680x220Last year, the Canadian Securities Administrators (CSA) began an initiative to increase transparency regarding female representation on boards and in executive officer positions. This was done by way of proposing amendments to the existing National Instrument 58-101 Disclosure of Corporate Governance Practices (NI 58-101). In the proposal stage, these amendments faced the typical gamut of comments, ranging from applause to dissatisfaction. Deal Law Wire also commented on these amendments in a previous post.

On December 31, 2014 the proposed amendments to NI 58-101 were implemented and, as a participating jurisdiction, Ontario became subject thereto. The … Continue Reading

Assessing corruption risks in M&A transactions

In a previous post, we discussed the importance of considering anti-corruption and bribery risks when engaging in international transactions. In connection with the OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions, Canada, the US and the UK, as well as an increasing number of legislatures around the world have implemented legislation forbidding the transfer of benefits for the purpose of influencing foreign officials. Companies charged under the Canadian Corruption of Foreign Public Officials Act (CFPOA) are criminally prosecuted, and can be forced to pay unlimited fines in addition to suffering irreparable reputational … Continue Reading

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