Insofar as there are circumstances that arise in a special case, they must be noted and addressed when the general meeting postpones the approval of a remuneration in order to meet the conditions of the subscription in the provisions of the law. As I held in the Matrix case, the reasons in support of overruling must be raised for the reasons according to which the CEO's circumstances amount to a special case (Matrix case, para. 69). In our case, when we are dealing with a remuneration in the form of a one-time grant, which is not in accordance with the company's remuneration policy, it is necessary to explain why this grant will contribute to the achievement of the goal that arises in a special case. In view of the fact that the CEO does enjoy a remuneration of three salaries for his past work and successes.
Moreover, it seems to me that the need for a clear clarification of what the 'special case' is is greater when it comes to remuneration given in a company with a strong controlling core in general, and in particular when this core was involved in presenting the CEO to the company prior to his appointment and/or supported his appointment and/or has ongoing or other working relationships with him. Without setting a rivet on the matter, if a request for derivative action is filed in this matter, this question will have to be clarified in depth and it may be found that there are special circumstances that arise into a special case that justifies overcoming. However, in the evidentiary threshold required for a request for disclosure of the Applicants' documents, which, as recalled, is not high, the Applicant met the initial evidentiary burden required to raise doubt about the existence of special circumstances, due to the lack of detail in the report.
- Thus, I also found that the applicant met the burden of proof required by the initial evidentiary threshold that detailed reasons were not specified. A comparison of the report of the summons of the meeting with the immediate report shows that the same reasons were detailed in substance and that are almost identical in their language (compare Appendix 2 to the application to Appendix 4 to the application). As for the reference to the comparative document on the basis of which the remuneration decision was made, the immediate report noted that it was "reconsidered" – but beyond that, it was not specified how it was reconsidered and why it was ultimately decided to determine the manner and amount of the remuneration that was determined prior to the objection of the general meeting. The importance of the reasons detailed in the overruling is necessary in order to clarify to the shareholders why they overcame their position in accordance with the purpose of the legislation. The importance of the reasoning is doubly important in relation to the factual, comparative and professional basis on which the compensation decision was made – both with regard to the manner of the remuneration and with regard to its amount. It is expected that the remuneration committee and the board of directors will at least specify why a remuneration was chosen in the form of a one-time bonus and another that deviates from the company's remuneration policy, and what other types of remuneration were examined in the framework of the comparison; to which companies did they compare the bonus; Whether an extreme scenario was presented according to which the remuneration would not be paid according to the position of the general meeting, and what would be the impact or outcome of this scenario on the company, whether the possibility of establishing an excellence grant for the past that may be approved by the general meeting was considered, and other types of reasons that could clarify to the shareholders why their position was not considered and why it is justified to do so. As in the Electra case and in the Matrix case, identity in the nature of the reasons, and even more so, the very identity or similarity in the wording of the reasons raises a concern, even if only primitively, that the rehearing took place only for the sake of appearances and that no real and proper diligence was done in order to re-examine the original decision prior to the objection of the General Assembly (Matrix case, paragraph 70; , paragraph 69). When the Remuneration Committee and the Board of Directors repeat the same reasons for which the meeting was summoned to justify the overruling decision, it should be possible to discover and review the documents that led to the decision, and thus allow the shareholders to examine whether the overruling decision was made in proper procedure (ibid., at paragraph 72). In our case, it was noted that the decision to reapprove the remuneration was made unanimously, and therefore there is room to disclose the discussions in order to examine whether there were any doubts, dissenting positions, objections or reservations and what led to a unanimous decision at the end of the hearing (Matrix case, paragraph 70). Therefore, I found that the applicant's argument that the company did not meet the requirement of the detailed reasons for the disclosure of the documents should be accepted.
- With regard to the condition in the provisions of the law to hold a rehearing, I found that the applicant met the burden of proof for the purpose of discovering the documents that there was a concern that a rehearing had not taken place and that the outcome of the hearing was known in advance. The respondent noted in her reply that she did not examine new data for the purpose of the overruling decision, such as ordering a new opinion or a new comparative study, and Dahan-Portnoy confirmed this in the evidentiary hearing (p. 485, questions 19-23 of the transcript). Although there is no obligation to change the infrastructure on the basis of which the compensation decision is made, as that I mentioned on the matter Matrix This is the best way to reconsider remuneration in order to conduct a clean examination that resets the biases that can be fixed among the members of the remuneration committee and the board of directors (ibid., at paragraph 71) And not only because of these. This is the commandment of the legislature. Re-examination. As stated in the above paragraph, it is not possible to understand how the opinion that was presented to the Remuneration Committee and the Board of Directors was reconsidered, and there is a concern that it was written that the opinion was reconsidered "from the outside world". Although in our case, time passed between the objection of the general meeting and the meetings of the remuneration committee and the board of directors in which the over-ruling decision was approved, at least it is expected Let the reasoning be How did they relate to the factual and comparative basis? Such as Questioning the data presented and examining alternatives.
When asked about the rehearing of the evidence hearing, Dahan-Portnoy referred to the fact that there was nothing to explain beyond Why which has already been explained due to the lack of reasoning on behalf of the institutional shareholders (p. 439, questions 4-14):