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As Proxy Season Begins, What Constitutes a Proxy “Solicitation”?

Fasken
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Overview

Capital Markets and Mergers & Acquisitions Bulletin

Soliciting proxies is at the heart of any shareholder activist campaign or issuer defence. However, while defined very broadly, authoritative guidance regarding what constitutes a proxy “solicitation” remains relatively thin. As proxy season begins, we review the meaning and implications of this key legal concept for the benefit of both shareholders and issuers.

Our key practical takeaways include:

  • What constitutes a “solicitation” of proxies is approached “inclusively”, and the nature, context and purpose of the communication is key.
  • While an individual communication may not amount to a solicitation, multiple communications considered together may cross the line.
  • An issuer’s public response to an activist campaign will generally be viewed in that context and thus be afforded some latitude to defend both the issuer and its directors before crossing the solicitation threshold.
  • The standard of proof is the balance of probabilities. Circumstantial evidence is admissible, but mere suspicion or plausibility is insufficient. Courts have also been reluctant to infer a solicitation has occurred in the absence of clear support. 

For a concise and comprehensive overview of key activist tactics and target defensive strategies, see our Shareholder Activism in Canada: The Legal Framework guide. For more Fasken corporate governance and M&A thought leadership, visit our Capital Markets and M&A Knowledge Centre

Proxy Solicitation and Exemptions 

The Canada Business Corporations Act (CBCA) defines “solicitation” very broadly and to include a “communication to a shareholder under circumstances reasonably calculated to result in the procurement, withholding or revocation of a proxy. Securities law provides a substantively identical definition. Unless an exemption is available, the solicitation of proxies by an activist is prohibited without the circulation of a dissident proxy circular and form of proxy to each other shareholder whose proxy is being solicited. 

Two exemptions are available to an activist (but not an issuer) under the CBCA and securities law and these can be used alone or in combination. The “quiet solicitation” exemption permits the solicitation of proxies from up to 15 shareholders. The “public broadcast” exemption permits a solicitation of proxies by press release, advertisement or other notice generally available to the public. Where a dissident’s actions might test the bounds of these exemptions, appreciating what could constitute a “solicitation” becomes critical for both the activist and target company.  

Solicitation Caselaw: Guidance From the Courts 

What qualifies as the “solicitation” of a proxy has come before several Canadian courts. Nonetheless, the concept’s borders remain only roughly defined. Somewhat conflicting instructions have been issued. The applicable fact scenarios have also varied widely.

General Principles 

It has been confirmed that the definition of “solicitation” under the CBCA is to be interpreted “broadly and in an inclusive manner…” The court has also determined that whether a solicitation has occurred is “a question of fact depending on the nature of the communication and the circumstances of its transmission…”

Communications by Shareholders

In one case, even though the activist’s letter to shareholders expressly stated it was not requesting proxies at that time, the letter was held to be a solicitation for also including a request not to execute the form of proxy circulated by company management. In another case, a shareholder post on a public forum was held to be a solicitation for urging shareholders to vote “withhold” or “against” the slate of directors put forward by management

An Ontario court indicated in obiter that it was “inclined” to view “communications among shareholders directed toward reaching a consensus on the voting of their respective shares” at a shareholder meeting as a solicitation, even if a proxy was not formally sought during such conversations. However, the court did not need to definitively decide the issue as, even had there been a solicitation, it would have involved less than 15 shareholders (i.e., it would have qualified for the “quiet solicitation” exemption). 

Seven years later, an Alberta court stressed the obiter nature of the Ontario court’s comments when a target company sought to rely on the earlier judgement. Rather ambiguously, the court also indicated, without providing any further detail, that a different approach to interpreting the definition of “solicitation” under securities law as compared to under corporate statute may be warranted. 

The issue before the Alberta court was whether it should be inferred that a solicitation occurred from the fact that, using the form of proxy circulated by company management, numerous shareholders appointed the same individual as their proxy. The court refused to do so, dismissing the evidence assembled by the company as mere speculation. It highlighted that there is “no prohibition in securities or corporate law to prevent a security holder from appointing someone other than the management nominee as proxy…” It further underscored that “the management proxy sent to debenture holders expressly provided for such an alternate choice 

Communications by Target Companies

Communications to shareholders by a target in response to a dissident campaign and before the company issues its circular will generally be viewed in that context. The mere fact that an activist has commenced its solicitation process does not necessarily mean communications made in response by the target will also be a solicitation of proxies. What matters is the “principal purpose” of the target’s communication, which in one case included the target defending its historical position and explaining why it chose to combine an annual and special meeting of shareholders. The target was entitled to both defend itself and its board against the activist’s criticisms as well as take issue with the activist’s track record so long as it did not cross the line into solicitation. What mattered was that the company had not encouraged shareholders to provide it with proxies and had only advised shareholders that a management information circular would be issued prior to its annual meeting. 

Taking Multiple Communications Together 

It has been signalled multiple times that two or more communications (e.g., press releases) considered together can amount to a solicitation. In one case the court indicated in obiter that the second, third and fourth in a series of press releases issued by a shareholder were a solicitation, including for (1) having been primarily directed at the company’s shareholders, (2) communicating that the shareholder had already secured significant support, (3) referring readers to a proxy solicitation firm for further information, and (4) having occurred in circumstances where it was clear proxies would later be solicited. The court described these as “steps” in a “chain of communication designed to culminate” in changing the company’s board. However, it has also been signalled that it may be most appropriate to consider an individual communication “on its own”, albeit in its wider context.  

Burden of Proof and Evidentiary Matters

The burden of proof will generally lie with the party alleging an unlawful solicitation of proxies has occurred. The standard of proof is the balance of probabilities. Circumstantial evidence is admissible, but mere suspicion or plausibility is insufficient. The court may require that the person making the communication establish that the requirements of an exemption are satisfied, e.g., that 15 or less shareholders were approached where the “quiet solicitation” exemption is relied on.  

Concluding Comments 

The relatively thin guidance given by Canadian courts regarding what constitutes a solicitation of proxies highlights the need for any potential activist to plan and implement its campaign in a cautious and deliberate manner. Conversely, should a potential activist appear on an issuer’s radar, the issuer should be diligent in monitoring the shareholder’s conduct for activity that tests the borders of the “quiet solicitation” and “public broadcast” exemptions and should be prepared to react accordingly. 

 

Contact the Authors

For more information or to discuss a particular matter please contact us.

Contact the Authors

Authors

  • Bradley A. Freelan, Partner | Mergers & Acquisitions, Toronto, ON, +1 416 865 4423, bfreelan@fasken.com
  • Brad Moore, Partner | Litigation and Dispute Resolution, Toronto, ON, +1 416 865 4550, bmoore@fasken.com
  • Shanlee von Vegesack, CFA, Partner | Capital Markets, Mergers & Acquisitions, Calgary, AB | Vancouver, BC, +1 604 631 4952, svegesack@fasken.com
  • Paul Blyschak, Counsel | Corporate/Commercial, Calgary, AB, +1 403 261 9465, pblyschak@fasken.com
  • Nazish Mirza, Associate | Capital Markets, Mergers & Acquisitions, Toronto, ON, +1 416 865 4553, nmirza@fasken.com

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