Canada's 2014 Leading Corporate Lawyers SHAREHOLDER ACTIVISM | 9
Chambers, Gordon R.
Cassels Brock &
Blackwell LLP
(604) 691-6106
gchambers@
casselsbrock.com
Mr. Chambers' s securities
practice embraces
public M&A, public
& private off erings of
securities, and ongoing
disclosure requirements
of public companies. His
clients include mining
companies, special
committees of boards
and dual-listed issuers.
Chernin, Lawrence S.
Goodmans LLP
(416) 597-5903
lchernin@goodmans.ca
Mr. Chernin has over
25 years' experience in
Canadian and international
M&A, public company
and private-equity
transactions. He has
acted both for issuers
and under writers in
connection with public
off erings, including debt
and cross-border off erings.
Cockburn, Matthew
Tor ys LLP
(416) 865-7662
mcockburn@torys.com
Mr. Cockburn's corporate
and securities practice
focuses on public and
private M&A, private
equity and corporate
fi nance. His clients include
Canadian and US PE fi rms,
pension funds, public
issuers and under writers.
Cherney, Richard D.
Davies Ward Phillips
& Vineberg LLP
(514) 841-6457
rcherney@dwpv.com
Mr. Cherney, a managing
partner of Davies, acts
for some of Canada's
most important public
and private companies
in M&A transactions,
fi nancial institutions and
a number of national
investment dealers in
connection with public
and private fi nancings.
Ciardullo, John J.
Stikeman Elliott LLP
(416) 869-5235
jciardullo@stikeman.com
Partner and head of
Toronto offi ce's Capital
Markets/Public M&A
Group. Practice focuses
on M&A, proxy
contests, contested
meetings and corporate
fi nance transactions.
Colpron, Jean-Pierre
Norton Rose Fulbright
Canada LLP
(514) 847-4880
jean-pierre.colpron@
nortonrosefulbright.com
Mr. Colpron focuses on
private M&A; complex
domestic and cross-
border corporate and
tax structures; creation
of private-equity funds;
commercial agreements;
domestic and foreign
joint ventures; and
equity investments in
infrastructure projects.
turns, Jana responded by putting forward
its own independent directors to serve on
Agrium's board.
Jana agreed to pay its nominees a per-
centage of its profi t on Agrium over a
three-year period, provided they won a
board spot and that the share price went
up. at private compensation would be
in addition to the amount the company
pays all its directors for their services.
Critics of the arrangement were out-
raged, saying it would keep the Jana direc-
tors on "golden leashes." Jana countered
that its nominees would only stand to gain
"to the extent that all shareholders gain."
e Canadian Coalition for Good
Governance weighed in, warning golden
leashes create a divergence of interests on
the board.
Stephen Erlichman, the coalition's ex-
ecutive director and a partner at Fasken
Martineau DuMoulin LLP, says the
problem with golden leashes, to use this
case as an example, is that they would
give the Jana-backed directors the in-
centive to make decisions with at most
a three-year horizon, and create internal
confl ict between "what the Jana-nom-
inated director might do to get that
compensation, versus what might be in
the best interests of the company over
the given time frame.
"It creates a Balkanized, dysfunctional
board where some
directors can po-
tentially get mil-
lions of dollars each
and other directors
are going to get just
whatever the direc-
tors' fees are."
Carol Hansell of
Hansell LLP, one
of Canada's leading
governance experts,
says golden leashes
were designed as a
way to encourage
qualifi ed directors
to stand with dissi-
dents and fi ght.
Board fi ghts in
Canada used to be waged behind closed
doors. Not any more. Today dissident
nominees have to prepare themselves
for a US-style rough and tumble – and
personal – battering in the media. It's a
change Hansell fi nds disturbing.
"I don't think it's so much a concern
when people are taking shots at the qual-
ity of the strategy or governance, but
when they start taking personal shots
at the individual directors – nothing to
do with past board performance – that's
using the go-negative style you see in po-
litical campaigns and applying it to proxy
battles in a corporate context. at is re-
ally concerning."
Hansell says there are arguments for
why golden leashes are a good idea but,
with heated pushback on both sides of
the border, says she'd be surprised if any-
one tries to use them again this year.
" e community has spoken and said
it's just not acceptable."
Golden leashes weren't the only con-
troversy resulting from the Jana-Agrium
board fi ght (which Jana lost, by the way).
It also opened up a whole new debate on
vote buying.
"[USING GOLDEN LEASHES]
CREATES A BALKANIZED,
DYSFUNCTIONAL BOARD
WHERE SOME DIRECTORS
CAN POTENTIALLY GET
MILLIONS OF DOLLARS EACH
AND OTHER DIRECTORS
ARE GOING TO GET
JUST WHATEVER THE
DIRECTORS'FEES ARE."
– Stephen Erlichman, Fasken Martineau DuMoulin LLP
