Corporations and Partnerships in Canada

Name: Corporations and Partnerships in Canada
Brand: Kluwer Law International
Price: 76.49 EUR
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Mark Gillen(Autor*in)

Kluwer Law International (Verlag)

3. Auflage

Erschienen am 11. Juni 2018

240 Seiten

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978-94-035-0163-5 (ISBN)

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Inhalt

Intro
The Author
List of Abbreviations
Preface and Disclaimer
General Introduction
Chapter 1. The General Background of the Country
§1. Geography
§2. Cultural Composition
§3. Political System
I. The Constitutional Division of Powers
II. Provinces
III. Territories
IV. Municipal Governments
V. The Judicial Power
VI. Political Parties
§4. Population and Employment Statistics
I. Population Statistics
II. Employment Statistics
§5. Corporation and Partnership Statistics
§6. Social and Cultural Values
Chapter 2. Introduction to Corporations and Partnerships
§1. General Partnerships and Limited Partnerships
§2. Corporations
§3. Associations
Chapter 3. The Historical Background of Corporations and Partnerships
§1. A Brief Canadian Historical Context
§2. Partnerships
§3. Corporations
Chapter 4. Sources and Hierarchy of the Law on Corporations and Partnerships
Chapter 5. International Private Law
§1. Recognition of Foreign Corporations
§2. Continuance
I. Import
II. Export
Chapter 6. The Labour Law Connection: Co-determination and Corporate Structure
Part I. Corporations (Companies)
Chapter 1. Widely Held Corporations
§1. Formation
I. Formal Requirements for Incorporation
A. Filing Requirements
B. Notification, Registration, Incorporation, and Publicity
C. Contracts Made on Behalf of a Corporation (Company) Before Incorporation
II. Initial Subscribers
A. Number and Character of Incorporators
B. Initial Share Capital
C. Contribution in Kind
D. Other Material Formation Requirements
III. Essential Elements of the Legal Person
A. Registered Office
B. Name
C. Objects Clause
D. Commercial or Civil Character
§2. Capital and Shares
I. Nominal, Issued, Paid-Up, Minimum, and Authorized Capital
A. Classes and Series of Shares and Capital Accounts
B. Alteration of Capital
C. Pre-emptive Rights to Subscribe for Shares
D. Issue of Shares at a Premium and at a Discount
E. Public Issue Requirements (Prospectuses) and Promoters
F. Stock Exchange Introduction Requirements
G. Forbidden Reductions of Capital and Acquisitions of Shares by the Corporation Itself
II. Classes of Shares
A. Bearer or Registered Form
B. Presumption of Equality of Shares and Classes of Shares
C. Voting Rights
D. Dividend Rights
E. Rights on Winding-Up
F. Conversion Rights
G. Certificates and Share Warrants
H. Shares in Series
III. Transfer of Shares
A. Registration
B. Sales or Gift of Shares
C. Stock Exchange Requirements
D. Protection of Shareholders in a 'Tender Offer' (or 'Takeover Bid')
E. Insider Trading
1. The Prohibition of Insider Trading or Informing
2. 'Reporting Issuer', 'Material Change', and 'Material Fact'
3. 'Special Relationship'
4. Penal, Civil, and Administrative Sanctions
5. Defences
6. Insider Reporting
7. Insider Trading Provisions in Incorporation Statutes
IV. (Mortgage) Debentures and Other Securities
A. Options and Rights
B. Trust Indenture
§3. Shareholders, Management, and Control
I. Shareholder Control Mechanisms (Rights and Remedies)
A. Shareholder Meetings
1. Generally
2. Annual Meetings
a. The Requirement to Hold an Annual Meeting
b. Quorum
c. Notice Requirements
d. Resolution in Lieu of Meeting
3. Special Meetings
a. Special Meetings Are Discretionary
b. Quorum
c. Notice
d. Resolution in Lieu of Meeting
4. Judicially Ordered Meetings
5. Who May Call a Shareholders' Meeting
6. Shareholder Proposals
a. Nature of Shareholder Proposals
b. Types of Proposals
c. Effect of Shareholder Proposal
d. Frequency and Success Rate of Shareholder Proposals
7. The Shareholder's Right of Discussion at Shareholders' Meetings
a. The Right of Discussion
b. Right of Discussion Not Unlimited
c. The Right of Discussion and Shareholder Democracy
8. Conduct of the Chairperson at a Shareholders' Meeting
9. Shareholder Voting Rights
a. Types of Shareholder Resolutions
b. Circumstances in Which Shareholders Vote
c. Shareholders Entitled to Vote
d. 'Majority of the Minority' Voting Entitlements
e. Statutory 'Majority of the Minority' Voting Requirements
f. Administrative 'Majority of the Minority' Voting Requirements
g. Permitted Limitations on the Right to Vote
h. 'Coattails' Attached to Non-voting Shares
i. Cumulative Voting
10. The Proxy Voting System
a. Generally
b. Right to Appoint a Proxy
c. The Mandatory Solicitation Requirement
d. The Dissident Circular Requirement
e. Meaning of 'Solicitation'
f. Reimbursement for Proxy Solicitation Expenditures
B. The Statutory Derivative Action
1. Common Law Background and Inspiration for the Statutory Derivative Action
2. The Statutory Derivative Action
3. Utility of the Derivative Action
4. Derivative Versus Personal Actions: To Whom Is the Duty Owed?
5. Derivative Versus Personal Actions: Who Suffers the Harm?
6. Overlap Between Derivative and Personal Actions
7. Standing to Bring a Derivative Action
8. The Leave Requirement
9. The Requirement of Reasonable Notice
10. The Requirement That the Complainant Be Acting in Good Faith
11. The Requirement That the Action Appears to Be in the Interests of the Corporation
12. Powers of Court in Connection with a Derivative Action
13. Costs
14. Effect of Shareholder Ratification
15. Court Approval Needed to Discontinue a Derivative Action
C. The Oppression Remedy
1. Background
2. Standing
3. Substantive Grounds for Relief
4. Overlap with Directors' and Officers' Fiduciary Duties
5. Overlap with the Statutory Derivative Action
6. De Facto Fiduciary Duty of Controlling Shareholders
7. Meaning of 'Oppressive, or Unfairly Prejudicial to or That Unfairly Disregards the Interests of'
8. Application of the Oppression Remedy to Public Companies
9. Meaning of 'Affiliates'
10. Oppression Remedy Applies to Omissions As Well As Isolated Acts
11. Inter-shareholder Disputes over Business Policy
12. Mismanagement
13. Threats That Oppressive Conduct Will Occur in the Future
14. Powers of Court in Connection with an Oppression Application
15. Buyout Orders
16. Procedures
17. Costs
D. Duty of Majority Shareholders to Minority Shareholders
1. At Common Law, Shareholders Owe No Fiduciary Duties
2. Common Law Exceptions to the Principle That Shareholders Owe No Fiduciary Duties
3. Duty of 'Fairness'
4. The Majority of the Minority Principle
5. Shareholder Fiduciary Duties under the Oppression Remedy
E. Appraisal Remedies
1. Generally
a. Purpose of the Appraisal Remedy
b. Triggering Events
2. Where the Appraisal Remedy Is Triggered by a Corporate Transaction
a. Triggering Corporate Transactions
b. Procedures
3. Compulsory Acquisitions
a. Meaning of Compulsory Acquisition
b. Procedures in Connection with Compulsory Acquisitions
c. Reverse Compulsory Acquisition
d. Procedures in Connection with a Reverse Compulsory Acquisition
4. Oppression: Appraisal of Fair Value as a Remedy for Oppressive Conduct
5. Determination of 'Fair Value'
a. Generally
b. Market Value
c. Net Asset Value
d. Earnings or Investment Value
e. The Combined Approach
f. The Valuation Date
g. The Use of 'Hindsight' Information, or Information Acquired after the Valuation Date
h. Minority Discounts
i. Expropriation Premium
j. Transaction Synergies
k. Costs
l. The Appraisal Remedy Is Non-exclusive
F. Right to Corporate Information, Including Annual Financial Statements
1. Financial Disclosure Requirements
a. Corporate Law Requirements to Place Financial Statements Before Shareholders
b. Similar Requirements in Securities Law
2. Material Change Reports
3. Disclosure in Connection with Specific Transactions
4. Other Disclosure: Information to Which Shareholders and Creditors Have Access
G. Profits and Dividends
1. Debt Holders Have First Priority over the Earnings Stream
2. The Shareholder's Entitlement to Receive Any Declared Dividend
3. Priorities to Receipt of Dividends
4. Residual and Non-residual Share Claims
5. The Directors' Discretion to Pay Dividends
6. Cumulative Dividends
7. The Record Date
8. Declared Dividends Become a Debt of the Corporation
II. Directors, Officers, and the Management of the Corporation
A. Appointment Requirements, Remuneration, Dismissal
1. Directors' Power to Manage
2. Appointment of Directors
3. Cumulative and Class Voting for Directors
4. Term of Office
5. Qualifications
6. Number of Directors
7. Remuneration of Directors
8. Ceasing to Hold Office or Removal from Office
9. Appointment of Officers and Delegation of Powers
10. Remuneration of Officers
11. Removal of Officers
B. Powers of Management and Representation
1. Scope of the Directors' Power to Manage
2. The Application of Principles of Agency Law
3. Procedure for the Exercise of the Powers of the Directors
4. The Delegation of the Powers of the Directors
5. Corporate Governance Guidelines
C. Duties of Directors and Officers to the Corporation, Shareholders, and Third Parties
1. Fiduciary Duties Generally
2. Duty of Care and Other Statutory Obligations
a. Duty of Care
b. Other Statutory Obligations
c. Indemnification and Insurance
3. Duty to Act in the Best Interests of the Corporation
4. Duty with Respect to Conflicts of Interest
5. Duty Not to Usurp Corporate Opportunities
6. Duty to Act for a Proper Purpose
7. Ratification of Breaches of Fiduciary Duties
8. Liability to Third Parties
III. Auditor
A. Appointment Requirements, Remuneration, and Dismissal
B. Auditor's Powers and Duties
C. The Audit Committee
D. Auditor Oversight
E. Financial Statement Certification
IV. Worker Participation
§4. Liquidation of the Corporation
I. Grounds for Liquidation and Dissolution
A. Generally
1. Application of Federal and Provincial Corporate Legislation to Solvent Corporations
2. Meaning of 'Liquidation' and 'Dissolution'
B. Liquidation and Dissolution of Inactive Corporations
1. Grounds for Dissolution
2. Director May Apply to a Court for an Order Dissolving the Corporation
C. Liquidation and Dissolution of Corporations in Default of Certain Requirements of the Act
1. Grounds for Dissolution
2. Powers of Court
D. Voluntary Liquidation and Dissolution
E. Involuntary Judicial Liquidation and Dissolution for Corporate Misconduct or Other Reasons
1. Generally
2. Powers of Court
3. Shareholder Approval of Alleged Wrong Not Dispositive
4. First Ground for Application: Oppression
5. Second Ground for Application: Failure to Observe a Unanimous Shareholder Agreement
6. Third Ground for Application: The Just and Equitable Ground
a. Loss of Substratum
b. Justifiable Lack of Confidence
c. Deadlock
d. The Partnership Analogy
II. The Effect of Liquidation and Dissolution
A. Liquidation
B. Powers of Court Appointed Liquidator
C. Dissolution
D. Revival
§5. Mergers and Takeovers
I. Introduction: Business Combinations
II. Amalgamations ('Mergers')
A. Process
B. Effect
C. Appraisal Rights and Oppression Remedy
D. Short-Form Amalgamations
E. Cross-Border or Inter-jurisdictional Amalgamations
F. Arrangements
III. Sale of Assets
IV. Takeover Bids
A. Takeover Bid Requirements
1. Disclosure
2. Minimum Bid Period, Minimum Tender, Pro Rata Take-Up, and Withdrawal Rights
3. Equal Treatment
4. Formal Valuation
5. Adequate Financing and the Taking Up of and Payment for Shares
6. Purchases and Sales of Shares During the Bid Period
B. When the Takeover Bid Requirements Apply
C. Exemptions from the Takeover Bid Requirements
1. The Stock Exchange Exemption
2. 'Normal Course' Purchase Exemption
3. 'Control Block' or 'Private Agreement' Exemption
4. Closely Held Corporation Exemption
5. Limited Effect/De Minimus
6. Foreign Takeover Bid Exemption
7. Securities Commission Discretionary Exemption
D. Anti-avoidance Provisions
E. Early Warning Disclosure
F. Enforcement
G. Post-takeover Force Out
V. Constraints on Mergers and Takeovers
A. Competition Act
B. Foreign Investment Reviews and Restrictions
1. The Investment Canada Act
2. Other Legislative Constraints
§6. Holding Corporations and Subsidiaries
I. Approach to the Regulation of Holding Corporations and Subsidiaries
II. Definitions
III. Restrictions and Other Provisions
A. Holding and Voting of Holding Corporation Shares
B. Number of Canadian Resident Directors
C. Financial Disclosure
D. Investigations
E. Insider Trading
F. Short-Form Amalgamations
G. Affiliates, Fiduciary Duties, and Derivative Actions
H. Affiliates and the Oppression Remedy
§7. The Taxation of Corporations and Shareholders
I. Corporate Income Taxation
A. Introduction
B. Classification of Corporations for Income Tax Purposes
1. Importance of the Classification
2. Resident and Non-resident Corporations
3. Public and Private Corporations
C. Income Tax Rates
1. Federal Rates
2. Provincial Rates
D. Computing Income Tax Liability
1. Overview
2. Income from Business
3. Income from Property: Introduction
4. Foreign Accrual Property Income
5. Dividends from Canadian Resident Corporations
6. Dividends from Non-resident Corporations
7. Capital Gains
II. Integration of Corporate and Personal Income Taxes
A. Theory of Integration
B. Refund of Corporate Income Tax
C. Dividend Tax Credit
III. Taxation of Corporate Reorganizations
IV. Other Taxes
A. Sales Taxes
B. Selected Other Taxes
Chapter 2. The Closely Held Corporation
§1. Historical Background
§2. Statutory Reform
§3. Legislative Provisions
I. Corporate Formalities
A. Reducing Formalities
B. Simplified Incorporation Process
C. Simplified Director and Shareholder Meetings
D. Exemption for Proxy Solicitation and Disclosure
E. Exemptions for Financial Disclosure
II. Planning
III. Statutory Remedies
A. Generally
B. The Oppression Remedy
C. The Appraisal Remedy
D. The Derivative Action
§4. The Taxation of the Closely Held Corporation
Part II. Partnerships
Chapter 1. Types of Canadian Partnerships and Their Nature
§1. Jurisdiction over Partnerships
§2. Types of Partnerships
§3. Definition of Partnership
§4. Legal Nature of Partnership
Chapter 2. The Creation of the Partnership
§1. Contractual Nature of Partnership
§2. Rules for Determining the Existence of Partnership
§3. Agency Nature of Partnership
§4. The Creation of Partnership and Registration of Partnerships
§5. The Consequences of Failing to Register
§6. The Creation of Limited Partnerships
§7. Who May Form a Partnership?
§8. Written Partnership Contracts
Chapter 3. Partnership Property
Chapter 4. Management of the Partnership
§1. The Management Powers of Partners
§2. The Exercise of Management Powers
§3. Management Powers in Limited Partnerships
Chapter 5. Relationship among the Partners
§1. The Sharing of Profits
§2. The Sharing of Losses
§3. The Mutual Rights and Duties of the Partners
Chapter 6. Partners and Third Parties
Chapter 7. Withdrawal, Expulsion, and Retirement of Partners
§1. Withdrawal Right Depends on Contract in Common Law Jurisdictions
§2. Withdrawal under the Quebec Civil Code
§3. Return of Contribution of Limited Partners
§4. Expulsion of a Partner
Chapter 8. Dissolution of Partnerships
§1. Automatic Dissolution in Common Law Jurisdictions
§2. Dissolution under the Quebec Civil Code
§3. Court Dissolution
§4. Dissolution of Limited Partnerships
Chapter 9. Taxation of Partnerships
Selected Bibliography
Index

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