Shareholders of Astral Media Inc. are not only voting Thursday on a $3-billion takeover bid by BCE Inc., but also on a special side deal that would provide $25-million in "bonus and retention" payments to chief executive officer Ian Greenberg.
The payment is one of several special sums Mr. Greenberg and his family will receive as part of the takeover, prompting one of Astral's largest shareholders, fund manager Jarislowsky Fraser Ltd., to complain to regulators that the offer is not in the best interests of all shareholders.
"This amounts to one shareholder receiving more than others," said Jarislowsky Fraser president Len Racioppo, who wrote last week to the Ontario Securities Commission and Canadian Radio-television and Telecommunications Commissions to complain about the deal. "If you want participants in capital markets to understand they'll be treated fairly and equally, you can't allow bids that will result in certain groups of shareholders receiving premiums. … I'm asking them to change the rules to put protections in place for all shareholders."
BCE has offered to pay $50 per share to holders of class A non-voting stock and $54.83 per share to holders of the class B voting stock, the majority of which is controlled by the Greenberg family. The Greenbergs also own a third class of 65,000 non-traded "special shares." BCE is paying $769.23 apiece for these, totalling $50-million.
Two Greenberg family holding companies will get $135-million for their stock, while Mr. Greenberg and his brother Sidney, a vice-president, will receive another $57-million for their own shares to cash out options and share units. The siblings are also in line for change-of-control payments totalling $6.8-million.
The board has also created a "bonus and retention plan" for top Astral employees totalling $45-million. Holders of the A shares will vote Thursday on whether Mr. Greenberg should be paid $25-million of that. Regulatory filings show Astral director Sidney Horn argued the CEO deserves the bonus for building Astral into a valuable media company and because he would forgo future income with the sale.
Astral changed its share structure in 1984 to create the three share classes in order to satisfy Canadian broadcast ownership rules. Regulators have since said that any premium of 15 per cent or more paid for control of a company must be made to all shareholders, but exempted those like Astral with pre-existing multiple share structures.
However, Mr. Racioppo, whose firm manages 4 per cent of the A stock and 1 per cent of the B stock, said the super-sized bid for the special shares and CEO bonus is "a step beyond. In a change of control, you shouldn't allow other ways of topping up one shareholder versus another. Magna was a similar case, and the securities commission let it go. The OSC should be concerned that this bid contains different prices for each class of shares."
An OSC spokeswoman said it is reviewing Mr. Racioppo's letter.
In addition, Mr. Racioppo said the CRTC never intended to create windfalls for Canadian media owners through Canadian ownership rules when they sold out. He argued that controlling shareholders who profit more than other shareholders should fork their premium over to the commission, in place of "benefit payments" that buyers now make to the CRTC in regulated media takeovers. "He's already benefited, been paid for it and rewarded for that licence. He shouldn't benefit more when he sells."
Mr. Racioppo made a similar argument when BCE took over CHUM Ltd. in 2006, to no effect.
A CRTC spokesman said the commission "cannot comment during an ongoing process."
An Astral spokesman said the company "completely disagrees" with Mr. Jarislowsky's concerns, saying the company's different classes of shareholders are all being treated fairly.
"I am absolutely convinced that [Thursday's]vote on the arrangement by all categories of shareholders will attest to that fact," said Hugues Mousseau, adding Astral wasn't obligated to offer a vote on the additional payments to management but felt it was a "good governance measure."