Canada Not-for-profit Corporations Act (S.C. 2009, c. 23)

Marginal note:Amalgamation

204 Two or more corporations may amalgamate and continue as one corporation.

Marginal note:Amalgamation agreement

• 205 (1) 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

  • (a) the provisions that are required to be included in articles of incorporation under section 7 or in the by-laws under section 154;

  • (b) the name and address of each proposed director of the amalgamated corporation;

  • (c) the manner in which the memberships of each amalgamating corporation are to be converted into memberships of the amalgamated corporation;

  • (d) 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

  • (e) details of any arrangements necessary to perfect the amalgamation and to provide for the subsequent management and operation of the amalgamated corporation.

• Marginal note:Cancellation

  (2) If a membership in an amalgamating corporation is held by or on behalf of another amalgamating corporation, the amalgamation agreement shall provide for the cancellation, without any repayment of capital, of the membership when the amalgamation becomes effective. No provision shall be made in the agreement for the conversion of the membership into membership of the amalgamated corporation.

Marginal note:Member approval

• 206 (1) The directors of each amalgamating corporation shall submit the amalgamation agreement for approval to a meeting of the members of the amalgamating corporation of which they are directors and, subject to subsection (4), to the members of each class or group of members.

• Marginal note:Notice of meeting

  (2) Each amalgamating corporation shall give notice of a meeting of members in accordance with section 162 to its members and shall include in the notice a copy or summary of the amalgamation agreement.

• Marginal note:Right to vote

  (3) Each membership in an amalgamating corporation carries the right to vote in respect of an amalgamation agreement whether or not it otherwise carries the right to vote.

• Marginal note:Class vote

  (4) The members of a class or group of members of each amalgamating corporation are entitled to vote separately as a class or group 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 the members to vote as a class or group under section 199.

• Marginal note:Member approval

  (5) Subject to subsection (4), an amalgamation agreement is adopted when the members of each amalgamating corporation have approved the amalgamation by special resolutions.

• Marginal note:Termination

  (6) 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, despite approval of the agreement by the members of all or any of the amalgamating corporations.

Marginal note:Vertical short-form amalgamation

• 207 (1) A holding corporation and one or more of its subsidiary corporations may amalgamate and continue as one corporation without complying with sections 205 and 206 if

  • (a) the amalgamation is approved by a resolution of the directors of each amalgamating corporation;

  • (b) all memberships in each amalgamating subsidiary corporation are held by one or more of the other amalgamating corporations; and

  • (c) the resolutions provide that

    • (i) the memberships in each amalgamating subsidiary corporation shall be cancelled without any repayment of capital in respect of those memberships, and

    • (ii) except as may be prescribed, the articles of amalgamation shall be the same as the articles of the amalgamating holding corporation.

• Marginal note:Horizontal short-form amalgamation

  (2) Two or more wholly-owned subsidiary corporations of the same holding body corporate may amalgamate and continue as one corporation without complying with sections 205 and 206 if

  • (a) the amalgamation is approved by a resolution of the directors of each amalgamating corporation; and

  • (b) the resolutions provide that

    • (i) the memberships in all but one of the amalgamating subsidiary corporations shall be cancelled without any repayment of capital in respect of those memberships, and

    • (ii) except as may be prescribed, the articles of amalgamation shall be the same as the articles of the amalgamating subsidiary corporation whose memberships are not cancelled.

Marginal note:Sending of articles

• 208 (1) Subject to subsection 206(6), after an amalgamation has been adopted under section 206 or approved under section 207, articles of amalgamation in the form that the Director fixes shall be sent to the Director together with the documents required by sections 20 and 128.

• Marginal note:Attached declarations

  (2) The articles of amalgamation shall have attached to them a statutory declaration of a director or an officer of each amalgamating corporation that establishes to the satisfaction of the Director that

  • (a) there are reasonable grounds for believing that

    • (i) each amalgamating corporation is, and the amalgamated corporation will be, able to pay its liabilities as they become due, and

    • (ii) the realizable value of the amalgamated corporation’s assets will not be less than the aggregate of its liabilities; and

  • (b) there are reasonable grounds for believing that

    • (i) no creditor will be prejudiced by the amalgamation, or

    • (ii) 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.

• Marginal note:Adequate notice

  (3) For the purposes of subsection (2), adequate notice is given if

  • (a) a notice in writing is sent to each known creditor having a claim against the corporation that exceeds the prescribed amount;

  • (b) a notice is published once in a newspaper published or distributed in the place where the corporation has its registered office and reasonable notice is given in each province where the corporation carries on activities; and

  • (c) 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 the prescribed period.

• Marginal note:Certificate of amalgamation

  (4) On receipt of articles of amalgamation, the Director shall issue a certificate of amalgamation in accordance with section 276.

Marginal note:Rights preserved

209 On the date shown in a certificate of amalgamation, the amalgamation of the amalgamating corporations and their continuance as one corporation become effective and from that date

• (a) the property of each amalgamating corporation continues to be the property of the amalgamated corporation;

• (a.1) for the purposes of determining whether the amalgamated corporation is a soliciting corporation or whether paragraph 235(1)(c) applies to the amalgamated corporation, the income received prior to that date by any of the amalgamating corporations is deemed to have been received by the amalgamated corporation;

• (b) the amalgamated corporation continues to be liable for the obligations of each amalgamating corporation;

• (c) an existing cause of action, claim or liability to prosecution is unaffected;

• (d) a civil, criminal or administrative action or proceeding pending by or against an amalgamating corporation may be continued by or against the amalgamated corporation;

• (e) a conviction against, or ruling, order or judgment in favour of or against, an amalgamating corporation may be enforced by or against the amalgamated corporation; and

• (f) 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.

Marginal note:Amalgamation under other federal Acts

• 210 (1) Subject to subsection (2), a corporation may not amalgamate with one or more bodies corporate under the Bank 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 members in accordance with section 206.

• Marginal note:Short-form amalgamations

  (2) A corporation may not amalgamate with one or more bodies corporate under 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 207.

• Marginal note:Discontinuance

  (3) On receipt of a notice that a corporation has amalgamated under one of the Acts referred to in subsection (1), the Director shall issue a certificate of discontinuance in accordance with section 276 if the Director is of the opinion that the corporation has been amalgamated in accordance with this section.

• Marginal note:Notice deemed to be articles

  (4) For the purposes of section 276, a notice referred to in subsection (3) is deemed to be articles that are in the form that the Director fixes.

• Marginal note:Act ceases to apply

  (5) This Act ceases to apply to the corporation on the date shown in the certificate of discontinuance.

• Marginal note:Non-application

  (6) For greater certainty, section 208 does not apply to a corporation that amalgamates under one of the Acts referred to in subsection (1).

Marginal note:Continuance — import

• 211 (1) A body corporate incorporated or continued otherwise than by or under an Act of Parliament may apply to the Director for a certificate of continuance if so authorized by the laws of its jurisdiction and if the body corporate satisfies, or by its articles of continuance would satisfy, the requirements for incorporation under this Act.

• Marginal note:Amendments in articles of continuance

  (2) A body corporate that applies for a certificate under subsection (1) may, without so stating in its articles of continuance, effect by those articles any amendment to its act of incorporation, articles, letters patent or memorandum or articles of association that a corporation incorporated under this Act may make to its articles.

• Marginal note:Share capital

  (3) If the body corporate is a body corporate with share capital, it shall establish the terms and conditions on which it is converted to a body corporate without share capital.

• Marginal note:Articles of continuance

  (4) If a body corporate wishes to apply for a certificate under subsection (1), articles of continuance in the form that the Director fixes shall be sent to the Director together with the documents required by sections 20 and 128.

• Marginal note:Certificate of continuance

  (5) On receipt of articles of continuance, the Director shall issue a certificate of continuance in accordance with section 276.

• Marginal note:Effect of certificate

  (6) From the date shown in the certificate of continuance

  • (a) the body corporate becomes a corporation to which this Act applies as if it had been incorporated under this Act;

  • (b) the articles of continuance are deemed to be the articles of incorporation of the continued corporation;

  • (c) the certificate of continuance is deemed to be the certificate of incorporation of the continued corporation; and

  • (d) any shareholders or members cease to be shareholders or members of the body corporate and become members of the continued corporation.

• Marginal note:Copy of certificate

  (7) The Director shall immediately send a copy of the certificate of continuance to the appropriate official or public body in the jurisdiction in which continuance under this Act was authorized.

• Marginal note:Rights preserved

  (8) From the date of continuance of a body corporate as a corporation under this Act,

  • (a) the property of the body corporate continues to be the property of the corporation;

  • (b) the corporation continues to be liable for the obligations of the body corporate;

  • (c) an existing cause of action, claim or liability to prosecution is unaffected;

  • (d) any civil, criminal or administrative action or proceeding pending by or against the body corporate may be continued by or against the corporation; and

  • (e) any conviction against, or ruling, order or judgment in favour of or against, the body corporate may be enforced by or against the corporation.

• Marginal note:Deemed compliance

  (9) A membership in a body corporate issued before the body corporate was continued under this Act is deemed to have been issued in compliance with this Act and the articles of continuance.