Amalgamation Kit
Policy Statement 8.1
January 30, 2006
Table of Contents
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Why use this kit?
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What information must be filed to receive a
Certificate of Amalgamation?
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What proof of facts must you submit with the
articles of amalgamation
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What does Corporations Canada do?
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What deficiencies should you watch out for?
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How to file the Articles of Amalgamation and submit
the required fee?
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How to fill out form 9, Articles of
Amalgamation
- Item 1, Name of Amalgamated Corporation
- Item 2, Province or Territory of Registered Office
- Item 3, Shares
- Item 4, Restrictions on Share Transfers
- Item 5, Number of Directors
- Item 6, Restrictions on Business
- Item 7, Other Provision
- Item 8, Type of Amalgamation
- Item 9, Name of Amalgamating Corporations and Signature
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How to fill out form 2, Information Regarding the
Registered Office and the Board of Director
-
Additional information and how to reach
Corporations Canada
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Annex A - Sample letter to Corporations Canada
enclosing an Application for Amalgamation
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Annex B - Statutory Declaration
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Annex C - Cover page for fax transmission
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Annex D - Excerpt from the Canada Business
Corporations Act
This kit is intended only as a guide to users; it does not
replace or take precedence over the CBCA.
The purpose of this kit is to help you submit the forms and
information required in order for two or more corporations now
incorporated under the Canada Business Corporations Act
(CBCA)
to amalgamate and continue as one corporation. By ensuring that you
provide all the required information with your initial application,
you can help Corporations Canada process your amalgamation documents
swiftly.
In this kit you will find:
-
guidelines on what information must be filed to receive a
Certificate of Amalgamation;
-
general information on the role of Corporations Canada;
-
information on how to file the Articles of Amalgamation and submit
the required fee;
-
Form 2: Information regarding the Registered Office and the Board
of Directors and Form 9: Articles of Amalgamation and suggestions
on how to fill out key parts. Please note that all the forms can be
also obtained on Corporations Canada's website;
-
information on proof of facts you must submit with the Articles of
Amalgamation;
-
sample letter to Corporations Canada enclosing an Application for
Amalgamation (Annex A);
-
sample Statutory Declaration (Annex B);
-
sample fax cover page (Annex C);
-
excerpt from the Canada Business Corporations Act; the
relevant sections of the CBCA, section 181 to
section 186, are included in this kit for your convenience (Annex
D).
You should note, however, that this kit does not tell you everything
you may need to know about amalgamation. You may wish to consult with
legal counsel or other professional advisors to consider other
features that might be desirable in your corporate structure, or other
relevant matters.
CBCA
corporations may also seek amalgamation with companies incorporated
under the Bank Act, the Canada Cooperatives Act, the
Cooperative Credit Associations Act, the Insurance
Companies Act or the Trust and Loan Companies Act.
However, the application for amalgamation under one of these statutes
must be made to the Office of the Superintendent of Financial
Institutions. Upon receipt of a satisfactory notice that a CBCA corporation
has been amalgamated with a business incorporated under one of these
Acts, a certificate of discontinuance will be issued to the CBCA corporation
pursuant to subsection 188(7) of the CBCA, and the CBCA will not
apply to the amalgamated entity.
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A request for a Certificate of Amalgamation must include the
following:
-
A completed Form 2, Information regarding the Registered Office and
the Board of Directors;
-
A completed Form 9, Articles of Amalgamation
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A statutory declaration of an officer or director of each
amalgamating CBCA corporation
pursuant to subsection 185(2). The declaration must be signed
before a Commissioner of Oaths (see Annex B for a sample of the
declaration)
-
A NUANS® report (if
you wish to adopt a new name for the amalgamated corporation)
-
A covering letter to Corporations Canada (see Annex A) for an
application for amalgamation. Please make any alterations to this
letter to suit your individual circumstances, including whether or
not you are enclosing a NUANS® report and
the effective date of your Certificate of Amalgamation, if you wish
it to be later than the filing date.
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A filing fee of $200.00 payable to the Receiver General for Canada
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The Articles of Amalgamation must be accompanied by a statutory
declaration signed by a director or officer of each amalgamating
corporation. The statutory declaration included in this kit as Annex B
is a suggested model, based on the requirements set out in subsection
185(2) of the CBCA. Note that in
addition to both statements (i) and (ii) shown in Annex B, you must
also include a third statement that is a choice between
subparagraphs185(2)(b)(i) and (b)(ii), as the case may be (see Annex D
for an excerpt of the CBCA). The declaration
should be dated within two weeks of the proposed amalgamation
date, which will be the filing date or any later date you
request. Because of the increased volume of applications to be
processed by Corporations Canada each December, statutory declarations
filed that month may be dated up to four weeks before the proposed
amalgamation date.
Where articles of amalgamation are filed with, or very closely after,
articles of continuance for one of the amalgamating corporations and
where only one meeting of that corporation was called to pass both the
resolution to continue and the resolution to amalgamate, the
continuing body corporate is expected to comply with the requirements
of the CBCA with respect to
the calling of that meeting and passing the resolution to approve the
amalgamation. Compliance with these requirements is a condition of our
processing the amalgamation. Shareholder approval for the amalgamation
should be based on the understanding that the amalgamation can take
place only upon a certificate of continuance first being issued to the
corporation.
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Corporations Canada checks that each amalgamating corporations has
submitted the last three annual returns with all related fee (unless
the corporation has recently continued for the purposes of
amalgamation). Corporations Canada reviews the application to ensure
that the required documentation is attached and properly completed,
that the application fee is enclosed, that there are no pending
takeover bids, arrangements or preliminary enquiries involving the
amalgamating corporations.
When the Articles of Amalgamation and required documentation are
properly completed, the Director issue a Certificate of Amalgamation.
A new corporate number is given to the amalgamated corporation.
You will receive a Certificate of Amalgamation with Form 9: Articles
of Amalgamation, any annexes and the statutory declarations that you
send in duplicate. One copy of Form 2: Information regarding the
Registered Office and the Board of Directors will be returned to you
stamped with the date of processing by Corporations Canada.
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If your application is deficient in some respect, a notice will be
sent to you indicating the nature of the deficiency. Corporations
Canada will make every effort to permit you to retain the
originally-proposed amalgamation date.
Applications with statutory declarations older than two weeks will be
returned to you. Should circumstances require it, you will be asked to
complete a new statutory declaration.
Also remember that either a director or authorized officer of the
corporation must sign the Articles of Amalgamation. Form 2:
Information regarding the Registered Office and the Board of
Directors, can be signed by an individual who has relevant knowledge
of the corporation and who is authorized to sign by the directors.
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By fax:
You may submit the forms needed to amalgamate your corporation(s) to
Corporations Canada by fax at (613) 941-0999. Please note that
documents may be accompanied by a fax cover page provided by the
Director (See Annex C). The signature can be by reproduction of a
manual signature or in digital form. Payment of the $200 fee will have
to be made by credit card (American Express®, MasterCard® or
Visa®) or by a deposit account maintained at Industry Canada at
the time of filing.
The Certificate of Amalgamation will be sent to you by fax.
By mail:
You can submit the Articles of Amalgamation and the required documents
by mail to the following address.
Corporations Canada
Industry Canada
9th Floor, Jean Edmonds Towers South
365 Laurier Avenue West
Ottawa, Ontario, K1A 0C8
Payment of the $200 fee, payable to the Receiver General for Canada,
may be made by cheque, credit card (American Express®,
MasterCard® or Visa®) or by a deposit account maintained at
Industry Canada at the time of filing.
The Certificate of Amalgamation will be sent to you by mail or by the
method requested.
In person:
You may submit all required documents in person, with the required fee
of $200, payable to the Receiver General for Canada as above, Monday
to Friday between 8:30 a.m. and 2:30 p.m. at the address noted above.
The Certificate of Amalgamation will be sent to you by mail or by the
method requested.
Electronic forms:
The Corporations Canada Online Filing Centre does not process forms
for amalgamation.
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Please see the back of Form 9 for complete instructions on how to
complete the Articles of Amalgamation.
Articles of Amalgamation may be used for either long-form or
short-form amalgamation. The difference in the two is explained in
item 8 below.
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Write in the name of the amalgamated corporation. A NUANS® report is
not required if the new corporation will have a name identical to
that of one of the amalgamating corporations. Nor is a NUANS® report
needed if the only change is to the legal element.
If a new name is proposed, or if a French or English version is to
be added to the name upon amalgamation, a NUANS® report less
than 90 days old is required.
A NUANS® report may
be obtained in two ways:
-
A NUANS® report
may be requested from a private company known as a search
house. You can find a list of these firms on
Corporations Canada's website by following the links
"Online Filing", and "Corporations Canada
Online Filing Centre", or in the Yellow Pages of your
telephone directory under incorporating companies,
incorporation name search, searchers of records or trade mark
agents - registered. There is a fee for this
service.
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A NUANS® report
may be ordered on-line at the
Electronic Filing Centre, from the NUANS®
Real-Time System. The fee is $20 payable by credit card
(American Express®, MasterCard® or Visa®). Applicants should note that a
NUANS® report
that is generated may be rejected if the proposed name does
not meet the requirements of the CBCA name
regulations.
When you order a NUANS® report, that
report has a life of 90 days from the date it is requested. A
search house can advise you whether your proposed name is likely to
be accepted by the Director. The final decision, however, always
rests with the Director.
Pre-approved name
If a proposed new name has been pre-approved, ensure that the
letter of approval is enclosed with your articles. If not, or if
the name has not been reviewed prior to your filing Articles of
Amalgamation, the name will go through the approval process when
the articles are filed.
Number Name
If you are incorporating under a number name to be assigned by the
Director, leave a blank space on the left hand side, write in the
word "Canada", and add the legal element of your choice,
such as Inc., Ltd., Corp., etc.
e.g.: __________ CANADA Inc.
Bilingual Name
If you are incorporating under a bilingual name, the English and
French forms must be entered here.
e.g.: CARS ABC Inc., AUTOS ABC Inc.
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The registered office of one of the amalgamating corporations is to be
situated in a Canadian province or territory. If the corporation
decides to move its registered office within the same province or
territory, it will not be necessary to file Articles of Amendment
(Form 4) nor to pay the $200.00 filing fee for articles of amendment.
The provisions of the CBCA provide that
articles of amalgamation must be identical to the articles of the
parent corporation in the event of a vertical short-form amalgamation
or to those of the subsidiary whose shares are not cancelled in the
event of a horizontal short-form amalgamation. However, prior to
November 24, 2001, articles may have specified a place that was not a
province, such as "the Greater Metropolitan Toronto". As of
November 24, 2001, only the province or territory must be specified.
Consequently, Item 2 of the articles of amalgamation (Form 9) must
indicate the province or the territory of the place indicated in the
articles of the parent corporation or the subsidiary, as appropriate,
at the time of the amalgamation. For example, in the event of a
vertical short-form amalgamation, where the articles of incorporation
of the parent corporation indicated "Winnipeg", the
applicant must indicate "Manitoba" in Item 2 of the articles
of amalgamation.
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The CBCA
sets out certain requirements regarding shares as described in Part V
of the Act. Although the amalgamated corporation must maintain the
existing share structure of one of the amalgamating corporations in a
short-form amalgamation, changes can be made in a long-form
amalgamation only if covered in the Amalgamation Agreement authorizing
the amalgamation. This agreement is not required to be filed. When
citing existing share provisions or restructuring new ones, remember
to delete all references to "nominal" or "par"
value. However, such reference may be used where the Director has
given special permission on the basis of a written request for
exemption (see subsection 187(11) of the CBCA). Also note:
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The CBCA gives
incorporators broad discretion to designate a class of shares as
common, preferred or Class A or B shares, or any other designation.
Some incorporators designate classes of shares simply as Class A,
Class B and "other".
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You do not need to place a limit on the number of shares that the
corporation is authorized to issue.
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You do not need to specify the consideration for the issuance of shares.
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Restrictions may be placed on any class of shares.
Where there is more than one class of shares, the rights, privileges,
restrictions and conditions attaching to each class must be set out.
At least one class must have the right to vote, one class must have
the right to receive a dividend, and one class must have the right to
receive the remaining property of the corporation on dissolution.
Where there is only one class, those rights attach to that one class.
The articles may authorize the issue of certain classes of shares in a
series. If so, the same articles may fix the number of shares in, and
determine the rights attaching to, a particular series, or, before the
shares of a series can be issued at a later time, directors must
submit Articles of Amendment with Corporations Canada specifying the
number, rights, privileges and restrictions attaching to the series
being issued (would the board of directors be able to amend without
shareholder approval?).
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Restrictions, if any, on the transfer of shares are normally
limited to requiring the consent of the directors and/or
shareholders. Exceptions may occur in special cases when the
incorporators establish a constrained share corporation, as
described in Part 9 of the Canada Business Corporations
Regulations.
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You may specify a range or a fixed number of directors. However, to
permit cumulative voting, the number of directors must be fixed.
Moreover, if the corporation is a "distributing"
corporation, there must be at least three directors.
e.g.:
"A minimum of 1 and a maximum of 7."
or
"Five directors."
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A CBCA corporation has
all the rights of a natural person, and normally one would not wish
to limit this power.
e.g.:
If there are to be no restrictions, simply state
"none".
-
If, however, there are reasons why you wish to restrict the
business of the corporation, the following preamble is
suggested:
"The business of the corporation shall be limited to the
following: ..."
It should be noted that section 3 of the CBCA itself
prohibits CBCA corporations
from carrying on the business of a bank or an insurance or trust
and loan company, or carry on business as a degree-granting
institution.
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The CBCA
allows you to include a number of additional provisions in the
Articles of Amalgamation. As well, clauses to satisfy requirements of
other legislation or institutions may be included.
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You must indicate whether the amalgamation complies with section 183
("long-form"), subsection 184(1) ("vertical
short-form") or subsection 184(2) ("horizontal short
form") of the CBCA. In a
"long-form" amalgamation, each amalgamating corporation
signs an amalgamation agreement (as described in subsection 182(1))
and submits it for approval at a meeting of shareholders (as described
in subsection 183). The Articles of Amalgamation may contain whatever
has been agreed to in the amalgamation agreement. Copies of the
amalgamation agreement or shareholder approval should not be filed,
but you should ensure that the required meetings take place prior to
filing articles.
A "short-form" amalgamation is approved by
a resolution of the directors and does not require shareholder
approval. The resolution of the directors should not be filed.
In a vertical short-form amalgamation between a holding corporation and one or more wholly-owned subsidiaries, the Articles of Amalgamation must be the same as the Articles of the amalgamating holding corporation. However, an exception is made for the name of the amalgamated corporation (Form 9, Item 1) which may be the name of any of the amalgamating corporations.
In a horizontal short-form amalgamation between two or more wholly-owned subsidaries of the same holding corporation, the Articles of Amalgamation must be the same as the Articles of the amalgamating subsidiary corporation whose share are not cancelled. However, an exception is made for the name of the amalgamated corporation (Form 9, Item 1) which may be the name of any of the amalgamating corporations.
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Write in the name of the amalgamating corporations and their
respective corporation numbers. The director or authorized officer of
each amalgamating corporation must date and sign their name
accordingly.
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Please refer to the form to get complete instructions.
Indicate at item 1 the name of the corporation as indicated in the
Articles of Amalgamation (Form 9).
Indicate at item 2 the registered office address. It must be a
complete civic address within the province or territory specified in
the Articles of Amalgamation (Form 9). Please indicate at item 3 the
mailing address if it is different from the address of the registered
office.
Indicate at item 4 the name and family name of all directors. The
number of directors must correspond with the number indicated in Item
5 of the Articles of Amalgamation (Form 9). You must indicate the
residential address (a post office or a business address won't be
accepted) of each director and indicate if he/she is Canadian
resident.
Note that at least 25 per cent of the directors must be Canadian
residents. However, some restrictions apply:
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If the corporation has fewer than four directors, at least one of
them must be a resident Canadian.
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If the corporation is required by a federal Act or regulations to
meet specific requirements respecting Canadian participation or
control (e.g., corporations carrying on air transportation or
telecommunications businesses), a majority (50% + 1) of its
directors must be resident Canadians.
-
If the corporation is carrying on one of the following businesses,
a majority (50% + 1) of its directors must be resident
Canadians:
-
uranium mining
-
book publishing or distribution
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bookselling, where the sale of books is the primary part of
the corporation's business
-
film or video distribution
However, if a parent corporation belonging to one of those categories
(i.e., carrying on a business referred to above, or that must meet
requirements respecting Canadian participation or control under a
federal Act or regulations) and its subsidiaries earn less than five
per cent of their gross revenue in Canada, only one third of the
corporation's directors need be resident Canadians.
Form 2 must be signed by an individual who has relevant knowledge of
the corporation and who is authorized to sign by the directors.
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For additional information on Corporations Canada's products and
services, please visit the Corporations Canada website or call
1-866-333-5556.
You can also contact Corporations Canada at:
Enquiries Unit
Corporations Canada
Industry Canada
9th floor, Jean Edmonds Tower South
Ottawa, Ontario K1A 0C8
Fax: (613) 941-0601
Corporations Canada's website
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Sample letter to Corporations Canada enclosing an Application for
Amalgamation
Date: ______________________
Reference: ______________________
To: Corporations Canada
Industry Canada
9th floor, Jean Edmonds Tower South
365 Laurier Avenue West
Ottawa, Ontario K1A 0C8
Enclosed herewith are:
-
Information Regarding the Registered Office and the Board of
Directors (form 2)
-
Articles of Amalgamation (form 9)
-
Statutory Declaration of an officer or director of each
amalgamating corporation
-
NUANS® search
report not more than 90 days old, if applicable
-
Cheque for $200.00 payable to the Receiver General for Canada.
Please be advised that the Certificate of Amalgamation must bear the
effective date of __________________________ (a date later than the
date of receipt, if a different date is desired) rather than bearing
the date of receipt.
Please return the Certificate of Amalgamation to the undersigned
according to the following instructions:
Pick-up _____
Regular Mail _____
Signed: ____________________
Name: ____________________
Address: ____________________
____________________________________________________
Telephone number: ____________________
Fax number: ____________________
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In the Matter of the Canada Business Corporations Act
And
In the Matter of Articles of Amalgamation Filed Pursuant to Section
185 in the Name
____________________________________________________
Statutory Declaration
I, _____________________________, of the City of ___________________
in the Province of ________________, do solemnly
declare that:
-
I am a director or officer of _______________________________, an
amalgamating corporation and I have personal knowledge of the
matters herein deposed to.
-
I am satisfied that there are reasonable grounds for believing
that:
-
each amalgamating corporation can and the amalgamated
corporation will be able to pay its liabilities as they
become due; and
-
the realizable value of the amalgamated corporation's
assets will not be less than the aggregate of its liabilities
and stated capital of all classes, and
-
there are reasonable grounds for believing that no creditor
will be prejudiced by the amalgamation.
And I make this solemn declaration conscientiously
believing it to be true, and knowing that it is of the same force and
effect as if made under oath and by virtue of the Canada Evidence Act.
Declared
before me at the)
City of _____________________________,)
in the Province of ______________________)
this _____ day of ______________________)
20 _________________________________)
Signature _____________________________
______________________________________________
A Commissioner, etc.
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Cover page for fax transmission
Date submitted: _________________________________
Name of Contact: _________________________________
Address: _________________________________
_______________________________________________
_______________________________________________
_______________________________________________
Telephone Number: _________________________________
Fax Number: _________________________________
E-Mail Address: _________________________________
Corporation name(s) and number(s):
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
Services Requested
Amalgamation ($200) __________
Amendment ($200) __________
Form 2 __________
Annual Return __________
($40 or $20 if transaction is completed through Corporations Canada's Online Filing
Centre)
Other __________
Total: $ __________
Method of Payment
Industry Canada Deposit Account Number ________________
Credit Card Charges (American Express®,MasterCard® or
VISA®)
You have my authorization to charge my credit card for this
service:
Name of
cardholder (print)_____________________________________
Account #: __________
Exp. Date (yy/mm/dd) __________
Method of Return
Unless otherwise specified, your requested documents will be sent to
you by the same means as they were received. Other instructions:
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
Limitation of Liability
Clients should note that the Director is not liable for damages, costs
or expenses due to any cause related to the Director's systems for
receiving or processing electronic filings. The Director is not
responsible for the acts or omissions of electronic filers or third
parties such as the suppliers of telecommunications services.
Signature _______________________________
Printed Name _______________________________
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Excerpt from the Canada Business Corporations Act
181. Amalgamation. Two or more
corporations, including holding and subsidiary corporations, may
amalgamate and continue as one corporation.
182.(1) Amalgamation agreement. Each
corporation proposing to amalgamate shall enter into an agreement
setting out the terms and means of effecting the amalgamation and, in
particular, setting out
-
the provisions that are required to be included in articles of
incorporation under section 6;
-
the name and address of each proposed director of the amalgamated
corporation;
-
the manner in which the shares of each amalgamating corporation are
to be converted into shares or other securities of the amalgamated
corporation;
-
if any shares of an amalgamating corporation are not to be
converted into securities of the amalgamated corporation, the
amount of money or securities of any body corporate that the
holders of such shares are to receive in addition to or instead of
securities of the amalgamated corporation;
-
the manner of payment of money instead of the issue of fractional
shares of the amalgamated corporation or of any other body
corporate the securities of which are to be received in the
amalgamation;
-
whether the by-laws of the amalgamated corporation are to be those
of one of the amalgamating corporations and, if not, a copy of the
proposed by-laws; and
-
details of any arrangements necessary to perfect the amalgamation
and to provide for the subsequent management and operation of the
amalgamated corporation.
(2) Cancellation. If shares of one of the
amalgamating corporations are held by or on behalf of another of the
amalgamating corporations, the amalgamation agreement shall provide
for the cancellation of such shares when the amalgamation becomes
effective without any repayment of capital in respect thereof, and no
provision shall be made in the agreement for the conversion of such
shares into shares of the amalgamated corporation.
183.(1) Shareholder approval. The
directors of each amalgamating corporation shall submit the
amalgamation agreement for approval to a meeting of the holders of
shares of the amalgamating corporation of which they are directors
and, subject to subsection (4), to the holders of each class or series
of such shares.
(2) Notice of meeting. A notice of a
meeting of shareholders complying with section 135 shall be sent in
accordance with that section to each shareholder of each amalgamating
corporation, and shall
-
include or be accompanied by a copy or summary of the amalgamation
agreement; and
-
state that a dissenting shareholder is entitled to be paid the fair
value of their shares in accordance with section 190, but failure
to make that statement does not invalidate an amalgamation.
(3) Right to vote. Each share of an
amalgamating corporation carries the right to vote in respect of an
amalgamation agreement whether or not it otherwise carries the right
to vote.
(4) Class vote. The holders of shares of a
class or series of shares of each amalgamating corporation are
entitled to vote separately as a class or series in respect of an
amalgamation agreement if the amalgamation agreement contains a
provision that, if contained in a proposed amendment to the articles,
would entitle such holders to vote as a class or series under section
176.
(5) Shareholder approval. Subject to
subsection (4), an amalgamation agreement is adopted when the
shareholders of each amalgamating corporation have approved of the
amalgamation by special resolutions.
(6) Termination. An amalgamation agreement
may provide that at any time before the issue of a certificate of
amalgamation the agreement may be terminated by the directors of an
amalgamating corporation, notwithstanding approval of the agreement by
the shareholders of all or any of the amalgamating corporations.
184.(1) Vertical short-form amalgamation.
A holding corporation and one or more of its subsidiary corporations
may amalgamate and continue as one corporation without complying with
sections 182 and 183 if
-
the amalgamation is approved by a resolution of the directors of
each amalgamating corporation;
(a.1) all of the issued shares of each amalgamating
subsidiary corporation are held by one or more of the other
amalgamating corporations; and
-
the resolutions provide that
-
the shares of each amalgamating subsidiary corporation shall
be cancelled without any repayment of capital in respect
thereof,
-
except as may be prescribed, the articles of amalgamation
shall be the same as the articles of the amalgamating holding
corporation, and
-
no securities shall be issued by the amalgamated corporation
in connection with the amalgamation and the stated capital of
the amalgamated corporation shall be the same as the stated
capital of the amalgamating holding corporation.
(2) Horizontal short-form amalgamation.
Two or more wholly-owned subsidiary corporations of the same holding
body corporate may amalgamate and continue as one corporation without
complying with sections 182 and 183 if
-
the amalgamation is approved by a resolution of the directors of
each amalgamating corporation; and
-
the resolutions provide that
-
the shares of all but one of the amalgamating subsidiary
corporations shall be cancelled without any repayment of
capital in respect thereof,
-
except as may be prescribed, the articles of amalgamation
shall be the same as the articles of the amalgamating
subsidiary corporation whose shares are not cancelled,
and
-
the stated capital of the amalgamating subsidiary
corporations whose shares are cancelled shall be added to the
stated capital of the amalgamating subsidiary corporation
whose shares are not cancelled.
185.(1) Sending of articles. Subject to
subsection 183(6), after an amalgamation has been adopted under
section 183 or approved under section 184, articles of amalgamation in
the form that the Director fixes shall be sent to the Director
together with the documents required by sections 19 and 106.
(2) Attached declarations. The articles of
amalgamation shall have attached thereto a statutory declaration of a
director or an officer of each amalgamating corporation that
establishes to the satisfaction of the Director that
-
there are reasonable grounds for believing that
-
each amalgamating corporation is and the amalgamated
corporation will be able to pay its liabilities as they
become due, and
-
the realizable value of the amalgamated corporation's
assets will not be less than the aggregate of its liabilities
and stated capital of all classes; and
-
there are reasonable grounds for believing that
-
no creditor will be prejudiced by the amalgamation, or
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adequate notice has been given to all known creditors of the
amalgamating corporations and no creditor objects to the
amalgamation otherwise than on grounds that are frivolous or
vexatious.
(3)(2) Adequate notice. For the purposes
of subsection (2), adequate notice is given if
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a notice in writing is sent to each known creditor having a claim
against the corporation that exceeds one thousand dollars;
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a notice is published once in a newspaper published or distributed
in the place where the corporation has its registered office and
reasonable notice thereof is given in each province where the
corporation carries on business; and
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each notice states that the corporation intends to amalgamate with
one or more specified corporations in accordance with this Act and
that a creditor of the corporation may object to the amalgamation
within thirty days from the date of the notice.
(4)Certificate of amalgamation. On receipt of articles of
amalgamation, the Director shall issue a certificate of amalgamation
in accordance with section 262.
186. Effect of certificate. On the date
shown in a certificate of amalgamation
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the amalgamation of the amalgamating corporations and their
continuance as one corporation become effective;
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the property of each amalgamating corporation continues to be the
property of the amalgamated corporation;
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the amalgamated corporation continues to be liable for the
obligations of each amalgamating corporation;
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an existing cause of action, claim or liability to prosecution is
unaffected;
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a civil, criminal or administrative action or proceeding pending by
or against an amalgamating corporation may be continued to be
prosecuted by or against the amalgamated corporation;
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a conviction against, or ruling, order of judgment in favour of or
against, an amalgamating corporation may be enforced by or against
the amalgamated corporation;
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the articles of amalgamation are deemed to be the articles of
incorporation of the amalgamated corporation and the certificate of
amalgamation is deemed to be the certificate of incorporation of
the amalgamated corporation.
186.1 (1) Amalgamation under other federal
Acts. Subject to subsection (2), a corporation may not
amalgamate with one or more bodies corporate pursuant to the Bank Act,
the Canada Cooperatives Act, the Cooperative Credit Associations Act,
the Insurance Companies Act or the Trust and Loan Companies Act unless
the corporation is first authorized to do so by the shareholders in
accordance with section 183.
(2) Short-form amalgamations. A
corporation may not amalgamate with one or more bodies corporate
pursuant to the provisions of one of the Acts referred to in
subsection (1) respecting short-form amalgamations unless the
corporation is first authorized to do so by the directors in
accordance with section 184.
(3) Discontinuance. On receipt of a notice
satisfactory to the Director that a corporation has amalgamated
pursuant to one of the Acts referred to in subsection (1), the
Director shall file the notice and issue a certificate of
discontinuance in accordance with section 262.
(4) Notice deemed to be articles. For the
purposes of section 262, a notice referred to in subsection (3) is
deemed to be articles that are in the form the Director fixes.
(5) Act ceases to apply. This Act ceases
to apply to the corporation on the date shown in the certificate of
discontinuance.
(6) Non-application. For greater
certainty, section 185 does not apply to a corporation that
amalgamates pursuant to one of the Acts referred to in subsection (1).
Excerpt from the Canada Business Corporations Regulations
31. (1)For the purpose of paragraph 12(1)(a), if two or more
corporations amalgamate, the name of the amalgamated corporation is
prohibited if the name is confusing or is otherwise not prohibited.
(2) Despite subsection (1), the new corporate name may be
the same as the name of one of the amalgamating corporations.
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