1998/99 Legislative Session: 3rd Session, 36th Parliament
FIRST READING
The following electronic version is for informational purposes only.
The printed version remains the official version.
Division 1 -- Memorandum, Notice of Articles and Articles
275 (1) A pre-existing company must not alter its memorandum or articles.
(2) Despite subsection (1), a pre-existing company may
(a) alter its memorandum or articles, as the case may be,
(i) under section 366 (3),
(ii) if and to the extent necessary under section 370,
(iii) under section 427 (2), or
(iv) under section 367 or 442, and
(b) alter its articles and notice of articles at any time after it has complied with section 367 or 442.
276 (1) This section does not apply to an alteration to a notice of articles if the alteration is made, is required to be made or otherwise occurs under Division 4 of Part 2 or under section 150 or 152 (5).
(2) If the court makes an order that alters the notice of articles or that alters any of the information contained in the notice of articles,
(a) this section, other than this subsection, does not apply,
(b) the company must, promptly after the making of the order, file a copy of the entered order with the registrar,
(c) the alteration takes effect
(i) if neither the date nor the time is specified by the order, on the date and time that a copy of the entered order is filed with the registrar,
(ii) if a date but no time is specified, on the later of
(A) the date and time that a copy of the entered order is filed with the registrar, and
(B) the beginning of the date specified, or
(iii) if both a date and time are specified, on the later of
(A) the date and time that a copy of the entered order is filed with the registrar, and
(B) the date and time specified,
(d) the registrar must, promptly after the alteration takes effect under paragraph (c), provide to the company a certified copy of the notice of articles as altered, and
(e) the company must promptly
(i) deposit a copy of the entered order at its records office, and
(ii) alter its records in accordance with the order and this section.
(3) A company must not alter its notice of articles unless
(a) the company does so
(i) in the manner required or permitted by this Act, or
(ii) if this Act does not specify the manner required or permitted, in the manner required or permitted by its articles, and
(b) if a resolution is required to authorize that alteration, the company has been authorized to effect the alteration,
(i) by the type of resolution required or permitted by this Act,
(ii) if this Act does not specify the type of resolution required or permitted, by the type of resolution required or permitted by the articles, or
(iii) if neither this Act nor the articles specify the type of resolution required or permitted, by a special resolution.
(4) In order to alter its notice of articles, a company must
(a) file with the registrar a notice of alteration in the prescribed form describing the alteration, or
(b) if this Act specifies a different procedure by which an alteration is to be effected, follow the specified procedure.
(5) Whether or not an alteration to the notice of articles has been effected and authorized in accordance with subsection (3), the alteration takes effect,
(a) for an alteration under subsection (4) (a),
(i) if neither the date nor the time is specified by the notice of alteration, on the date and time that the notice of alteration is filed with the registrar,
(ii) if a date but no time is specified, on the later of
(A) the date and time that the notice of alteration is filed with the registrar, and
(B) the beginning of the date specified, or
(iii) if both a date and time are specified, on the later of
(A) the date and time that the notice of alteration is filed with the registrar, and
(B) the date and time specified, or
(b) for an alteration under subsection (4) (b), at the date and time specified by this Act.
(6) A resolution referred to in subsection (3) (b) may provide that the directors may
(a) refrain from causing the company to submit the notice of alteration for filing with the registrar,
(b) withdraw a notice of alteration that has been submitted for filing with the registrar but has not yet been filed, or
(c) withdraw a notice of alteration that has been filed with the registrar but has not yet taken effect.
(7) If authorized to do so in the manner specified by this section, the directors may withdraw a notice of alteration before it takes effect by filing with the registrar a notice of withdrawal in the prescribed form.
(8) After an alteration to the notice of articles takes effect under subsection (5), the registrar must provide to the company a certified copy of the notice of articles as altered.
277 (1) A company may resolve to alter its articles
(a) by the type of resolution required or permitted by this Act,
(b) if this Act does not specify the type of resolution required or permitted, by the type of resolution required or permitted by the articles, or
(c) if neither this Act nor the articles specify the type of resolution required or permitted, by a special resolution.
(2) A company must deposit in its records office a copy of the resolution referred to in subsection (1) promptly after it is passed.
(3) If the notice of articles reflects information contained in a provision of the articles, and that provision in the articles is to be altered, the company must,
(a) in accordance with section 276, alter its notice of articles to reflect the alteration to be made to the articles, and
(b) note on the copy of the resolution referred to in subsection (2), that that alteration to the articles does not take effect until the notice of articles is altered to reflect that alteration to the articles.
(4) Subject to subsection (6), an alteration to the articles referred to in subsection (3) takes effect when the alteration to the notice of articles referred to in subsection (3) (a) takes effect.
(5) Subject to subsection (6), an alteration to the articles that is not an alteration referred to in subsection (3) takes effect,
(a) if neither the date nor the time is specified by the resolution referred to in subsection (1), on the date and time that the resolution is received at the company's records office,
(b) if a date but no time is specified, on the later of
(i) the date and time that the resolution is received at the company's records office, and
(ii) the beginning of the date specified by the resolution, or
(c) if both a date and time are specified, on the later of
(i) the date and time that the resolution is received at the company's records office, and
(ii) the date and time specified.
(6) If the articles include a part or division entitled "Statutory Reporting Company Provisions" and the company wishes to alter one or more of the provisions of that part or division, the company must first apply to the executive director for consent to the alteration, and the alteration takes effect on the later of
(a) the time that the alteration takes effect under subsection (4) or (5) of this section, as the case may be, and
(b) the date and time that the written consent to the alteration provided by the executive director is received at the company's records office.
(7) The executive director may consent to an alteration to a company's articles under subsection (6) if the executive director considers that to do so would be fair and reasonable to all interested parties and would not be prejudicial to the public interest, and may provide that consent subject to the terms and conditions the executive director considers appropriate.
278 A shareholder of a company may give a notice of dissent, under Division 2 of Part 8, to the company in respect of any resolution under section 277 (1) that would have the effect of altering any restrictions on the powers of the company or on the business it is permitted to carry on.
279 (1) The Lieutenant Governor in Council may, by regulation, amend Table A.
(2) Unless the articles provide otherwise, if, in respect of a company recognized under this Act, a provision of Table A is adopted without restatement or alteration by the articles of the company under section 14 (6) or is included without restatement or alteration in the articles of the company under section 17 (b), 284 (b), 298 (1) (b) (iii) (B), 319 (b), 367 (2) or 422 (1) (b), any amendment to Table A that amends that provision will, at the time that the amendment comes into force, effect a corresponding alteration to the articles, without the necessity for the company to pass a resolution to effect that alteration.
(3) Nothing in this section prevents a company from altering a provision in its articles referred to in subsection (2) in the manner provided by section 277.
(4) Subsection (2) does not apply to a provision that has been altered under subsection (3).
280 After an alteration to the notice of articles or articles takes effect, the company must not issue a copy of the notice of articles or articles, as the case may be, that does not contain the alteration.
281 (1) In order to change its name, a company must alter its articles and notice of articles in accordance with this Division.
(2) A company may effect the alterations contemplated by subsection (1) if the company is authorized to do so,
(a) subject to section 282 (3), by the type of resolution specified by the articles, or
(b) if the articles do not specify the type of resolution required, by a special resolution.
(3) A resolution under subsection (2) may authorize a change of the company's name to
(a) a name, referred to in the resolution, that has been reserved under section 23, or
(b) a name to be chosen by the directors and then reserved under section 23.
(4) If a notice of alteration reflects a change of name to a name reserved under section 23 and that name reservation expires before the alterations contemplated by the notice of alteration take effect,
(a) if, on the date that the alterations contemplated by the notice of alteration are to take effect under this Division, the reserved name complies with the prescribed requirements and with the other requirements set out in Division 2 of Part 2, the alterations, including the proposed change of name, contemplated by the notice of alteration take effect, or
(b) in any other case, the notice of alteration is
(i) deemed to be withdrawn from the corporate register on the date that that reservation for the proposed name expires, and
(ii) deemed not to have effected any of the alterations to the notice of articles contemplated by that notice of alteration.
(5) After an alteration to the articles and notice of articles has taken effect under this Division to change the name of a company to a name reserved under section 23, the registrar must, in addition to the registrar's obligations under section 276 (8),
(a) issue a certificate showing the change of name and the date and time the change is effective, and
(b) publish in the Gazette a notice of change of name.
(6) No change of the name of a company affects any of its rights or obligations, or renders defective any legal proceedings by or against it, and any legal proceedings that may have been continued or commenced by or against it under its former name may be continued or commenced by or against it under its new name.
282 (1) By a provision in its articles, in this section called an exceptional resolution provision, a company may specify that a provision of its notice of articles or articles may not be altered, or that an action may not be taken by the company or the directors, unless the resolution to authorize the alteration to the notice of articles, the resolution by which the company resolves to alter its articles or the resolution to authorize the taking of the action is passed as an exceptional resolution.
(2) A company may not vary or delete an exceptional resolution provision unless the variation or deletion is authorized by an exceptional resolution.
(3) If a company is required to pass a resolution in order to authorize an alteration to the company's notice of articles, to authorize or effect an alteration to the company's articles, or to authorize or effect the taking of an action by the company or by its directors, and if there is a conflict between this Act and the articles as to the percentage of the votes that is needed to pass the required resolution, the company must, in order to pass the resolution, obtain the greater of
(a) the percentage of votes required by this Act, and
(b) the percentage of votes required by the articles.
(4) If the articles of a pre-existing company that has complied with section 367 or 442 include a provision that was not capable of alteration under the Companies Act, 1973, the company may not alter that provision unless the alteration is
(a) ordered by the court, or
(b) authorized by a unanimous resolution.
(5) Each share of the company carries the right to vote on a resolution referred to in subsection (4) (b), whether or not that share otherwise carries the right to vote.
283 (1) Unless the Act by which it was incorporated provides otherwise, a special Act corporation may apply to convert itself into a company under this Act if it has the consent of the minister to do so, and if it is authorized to do so by a special resolution that
(a) adopts, in substitution for the charter of the special Act corporation,
(i) a notice of articles that
(A) complies with section 13 (a), (d), (e) and (g) to (j),
(B) sets out the name of the company, and
(C) sets out the full name of each of the individuals who are to be the directors of the company after its conversion, and the prescribed address or addresses for each of those individuals, and
(ii) articles that
(A) comply with section 14 (1), (2) and (3) (b), and
(B) set out the name of the company,
(b) if it is necessary to do so to comply with this Act, alters the name of the special Act corporation, and
(c) authorizes one or more of the directors of the special Act corporation to sign the articles and to submit the notice of articles for filing with the registrar.
(2) A special Act corporation that has been authorized to do so under subsection (1) may apply for conversion under this Division by submitting for filing with the registrar
(a) the notice of articles referred to in subsection (1) (a) (i) of this section, and
(b) the minister's written consent to the conversion.
(3) A special Act corporation is converted to a company under this Division
(a) if neither the date nor the time is specified by the ministerial consent referred to in subsection (2) (b), on the date and time that the notice of articles and the ministerial consent are filed with the registrar,
(b) if a date but no time is specified by the ministerial consent, on the later of
(i) the date and time that the notice of articles and the ministerial consent are filed with the registrar, and
(ii) the beginning of the date specified, or
(c) if both a date and time are specified by the ministerial consent, on the later of
(i) the date and time that the notice of articles and the ministerial consent are filed with the registrar, and
(ii) the date and time specified.
(4) After a notice of articles and a ministerial consent are filed under subsection (2), the registrar must
(a) prepare a certificate of conversion showing the name of the converted company, and the date and time of its conversion,
(b) provide a certificate of conversion and a certified copy of the notice of articles to the converted company, and
(c) publish a notice of the conversion of the corporation in the Gazette.
284 If, by the time of the conversion of a special Act corporation to a company under section 283 (3),
(a) articles have been signed by one or more of the directors of the special Act corporation, the converted company has those articles as its articles, or
(b) none of the directors of the special Act corporation have signed articles for the converted company, the converted company has Table A as its articles.
285 (1) At the time of the conversion of a special Act corporation to a company under this Act,
(a) this Act, the notice of articles submitted for filing with the registrar under section 283 (2) (a) and the articles referred to in section 284, apply to the converted company in the same manner as if it were a company incorporated under this Act with that notice of articles and those articles, and the former charter of the special Act corporation ceases to apply,
(b) the property, rights and interests of the special Act corporation continue to be the property, rights and interests of the converted company,
(c) the converted company continues to be liable for the obligations of the special Act corporation,
(d) an existing cause of action, claim or liability to prosecution is unaffected,
(e) a legal proceeding being prosecuted or pending by or against the special Act corporation may be prosecuted, or its prosecution may be continued, as the case may be, by or against the converted company, and
(f) a conviction against, or a ruling, order or judgment in favour of or against, the special Act corporation may be enforced by or against the converted company.
(2) Whether or not the requirements precedent and incidental to conversion have been complied with, either a certificate of conversion, whether as originally issued by the registrar or as corrected under section 414, or a notation in the corporate register that a special Act corporation has been converted to a company is conclusive evidence for the purposes of this Act and for all other purposes that the corporation has been duly converted to a company under this Act as of the date and time shown in the certificate of conversion or in the corporate register, as the case may be.
286 (1) The following corporations may amalgamate and continue as one company:
(a) a company with one or more other companies;
(b) one or more companies with one or more foreign corporations.
(2) The amalgamated company may have as its name
(a) the name of one of the amalgamating companies, or
(b) for any amalgamation other than one effected under section 291 or 292, the name applicable to the amalgamated company under section 22.
287 (1) In order for a company to amalgamate with one or more other corporations under section 286, it must, unless the proposed amalgamation is to be effected under section 291 or 292,
(a) sign an amalgamation agreement with the other amalgamating corporations, and
(b) have the amalgamation agreement adopted by its shareholders.
(2) An amalgamation agreement referred to in subsection (1) must set out the terms and conditions of the amalgamation and must, in particular, set out
(a) the full name of each of the individuals who are to be the directors of the amalgamated company, and the prescribed address or addresses for each of those individuals,
(b) the manner in which the issued shares of each amalgamating corporation will be exchanged for securities of the amalgamated company,
(c) if any shares of an amalgamating corporation are not to be exchanged for securities of the amalgamated company, the amount of money or securities of any corporation that the shareholders holding shares of the amalgamating corporation are to receive in addition to or instead of securities of the amalgamated company,
(d) if shares or other securities of the amalgamated company or any other corporation are to be received on the amalgamation and if it is intended that there be a payment of money instead of the issue of a fractional share, the manner in which that payment is to be made, and
(e) details of any arrangements necessary to perfect the amalgamation and to provide for the subsequent management and operation of the amalgamated company.
(3) Despite subsection (2), if the beneficial ownership of shares of one of the amalgamating corporations is held by or on behalf of another of the amalgamating corporations,
(a) the amalgamation agreement must provide for the cancellation of those shares at the time that the amalgamation becomes effective, without any repayment of capital in respect of those shares, and
(b) no provision may be made in the agreement for the exchange of those shares for shares or other securities of the amalgamated company or of any other corporation, or for money.
288 An amalgamation agreement must include
(a) a copy of the articles that are to apply to the amalgamated company after the applicable amalgamation or a statement that, after that amalgamation, the amalgamated company will have Table A as its articles, and
(b) a copy of the notice of amalgamation to be filed with the registrar under section 294 (1).
289 (1) An amalgamation agreement is adopted by the shareholders of an amalgamating company if
(a) all of the shareholders of the amalgamating company, whether or not their shares otherwise carry the right to vote, adopt the amalgamation agreement by unanimous resolution, or
(b) the amalgamation agreement is adopted by the shareholders at a meeting in accordance with this section.
(2) If the amalgamation agreement is to be submitted for adoption at a meeting in accordance with subsection (1) (b), the amalgamating company must send a notice of the meeting to each shareholder of the amalgamating company at least 21 days before the date of the proposed meeting.
(3) A notice of meeting sent under subsection (2) must include or be accompanied by
(a) a copy of the amalgamation agreement, or
(b) a summary of the amalgamation agreement in sufficient detail to permit the shareholders to form a reasoned judgment concerning the matter.
(4) Each share of an amalgamating company carries the right to vote on an amalgamation agreement submitted for adoption at a meeting in accordance with subsection (1) (b), whether or not that share otherwise carries the right to vote.
(5) An amalgamation agreement submitted for adoption at a meeting in accordance with subsection (1) (b) is adopted by the shareholders of an amalgamating company when
(a) the shareholders attending the meeting in person or by proxy resolve, by a special resolution, to adopt the amalgamation agreement, and
(b) the shareholders holding shares of a class or series of shares to which are attached rights or special rights or restrictions that would be prejudiced or interfered with by the adoption of the amalgamation agreement, in a separate vote of those shareholders attending the meeting in person or by proxy, resolve by a special resolution to adopt the agreement.
(6) At any time before amalgamating corporations are amalgamated within the meaning of section 297 (1), an amalgamation agreement may be terminated by an amalgamating company, despite adoption of the agreement by any or all of the other amalgamating corporations, if the termination is authorized by, or in the manner contemplated by, the amalgamation agreement.
290 A shareholder of an amalgamating company may give a notice of dissent, under Division 2 of Part 8, to the amalgamating company of which the person is a shareholder in respect of a resolution that is proposed, under section 289, to adopt an amalgamation agreement.
291 A holding corporation that is a company and one or more of its subsidiary corporations may amalgamate and continue as one company without complying with sections 287 to 289 if
(a) the holding corporation
(i) has filed with the registrar a notice of articles that complies with this Act, and
(ii) has articles that comply with this Act,
(b) the amalgamation is approved by a special resolution of the holding corporation or by a resolution of its directors,
(c) all of the issued shares of each amalgamating subsidiary corporation are beneficially owned by one or more of the other amalgamating corporations, and
(d) the resolution requires that
(i) the shares of each amalgamating subsidiary corporation be cancelled on the amalgamation without any repayment of capital in respect of those shares,
(ii) there be submitted for filing, under section 294 (1), a notice of amalgamation that contains only information that is entirely consistent with the information that is, at the time that the notice of amalgamation is submitted for filing, contained in the notice of articles of the holding corporation, and
(iii) the amalgamated company refrain from issuing any securities in connection with the amalgamation.
292 (1) In this section, a "wholly owned subsidiary" of a holding corporation means a company, all of the shares of which are owned by
(a) the holding corporation, or
(b) one or more wholly owned subsidiaries of that holding corporation.
(2) Two or more wholly owned subsidiaries of the same holding corporation may amalgamate and continue as one company without complying with sections 287 to 289 if
(a) the amalgamation is approved by each of the amalgamating companies by a special resolution of the amalgamating company or by a resolution of its directors,
(b) the resolutions require that
(i) the shares of all but one of the amalgamating companies be cancelled on the amalgamation without any repayment of capital in respect of those shares, and
(ii) there be submitted for filing, under section 294 (1), a notice of amalgamation that contains only information that is entirely consistent with the information that is, at the time that the notice of amalgamation is submitted for filing, contained in the notice of articles of the amalgamating company the shares of which are not cancelled, and
(c) the amalgamating company of which the shares are not cancelled under paragraph (b) (i)
(i) has filed with the registrar a notice of articles that complies with this Act, and
(ii) has articles that comply with this Act.
293 (1) A company in respect of which a resolution referred to in section 291 or 292 is passed may withdraw from the proposed amalgamation if authorized to do so by an ordinary resolution of the company, by a resolution of its directors or in any other manner set out in that resolution.
(2) A company referred to in subsection (1) that receives the authorization required under that subsection may, if a notice of amalgamation has been filed with the registrar under section 294 in relation to the proposed amalgamation, withdraw from the proposed amalgamation by filing with the registrar, at any time before the amalgamating corporations are amalgamated within the meaning of section 297 (1), a notice of withdrawal from amalgamation in the prescribed form.
294 (1) In order to effect an amalgamation under this Division,
(a) there must be filed with the registrar, on behalf of the amalgamating corporations, a notice of amalgamation in the prescribed form, and
(b) each amalgamating corporation that is a foreign corporation must file with the registrar an authorization for the amalgamation from the foreign corporation's jurisdiction.
(2) A notice of amalgamation must not be submitted for filing under subsection (1) (a) unless,
(a) in the case of an amalgamation to which section 287 applies, the amalgamation agreement
(i) has been adopted by each of the amalgamating companies shown as parties to it, and
(ii) has not been terminated under section 289 (6), or
(b) in the case of an amalgamation under section 291 or 292, the amalgamation is approved in accordance with the applicable section and none of the amalgamating companies have, under section 293, withdrawn from the amalgamation.
(3) Before submitting a notice of amalgamation for filing under subsection (1) (a),
(a) the amalgamating corporations must obtain a court order, in accordance with section 295, approving the amalgamation agreement, or
(b) each amalgamating company must comply with section 296 (1) to (3).
295 (1) An application for a court order under section 294 (3) (a) must be brought at least 21 days after but not more than 2 months after,
(a) in the case of an amalgamation under section 287, the date on which the last of the amalgamating companies to adopt the amalgamation agreement does so under section 289 (1), or
(b) in the case of an amalgamation under section 291 or 292, the date on which the last of the approvals required for the amalgamation has been obtained in accordance with section 291 (b) or 292 (2) (a), as the case may be.
(2) An amalgamating company must give to a creditor or shareholder of the amalgamating company at least 14 days' notice of the date, time and place of the hearing of the application if
(a) the creditor or shareholder, by notice in writing, requires the company to give the creditor or shareholder notice of the application, and
(b) the written notice referred to in paragraph (a) is delivered to the registered office of the amalgamating company
(i) not later than 5 weeks after the adoption of the amalgamation agreement by all the amalgamating companies, and
(ii) before the hearing of the application.
(3) On an application under subsection (1),
(a) a creditor or shareholder of any of the amalgamating corporations is entitled to be heard,
(b) the court must have regard to the rights and interests of each person affected by the amalgamation, and
(c) the court may
(i) approve the amalgamation on the terms presented, or
(ii) dismiss the application.
(4) A notice of amalgamation submitted to the registrar for filing in respect of an amalgamation approved under this section must have attached to it a copy of the entered order of the court approving the amalgamation.
296 (1) A notice of amalgamation, submitted to the registrar for filing under section 294 in respect of an amalgamation that is to be concluded without court approval, must have attached to it, from each amalgamating company, an affidavit of a director or senior officer of that company that complies with subsection (2) of this section.
(2) An affidavit referred to in subsection (1) must
(a) state whichever of the following is applicable to the amalgamating company of which the individual is a director or senior officer:
(i) the company has entered into an amalgamation agreement with the other amalgamating corporations that
(A) complies with sections 287 and 288, and
(B) has been adopted in accordance with section 289;
(ii) the company proposes to amalgamate with one or more other corporations under section 291 or 292, as the case may be, and
(b) do one of the following:
(i) state that the director or senior officer believes and has reasonable grounds for believing that no creditor of the amalgamating company of which the individual is a director or senior officer will be materially prejudiced by the amalgamation;
(ii) state
(A) that the amalgamating company of which the individual is a director or senior officer has given to its creditors the notice required by subsection (3) (a) and (c), has published the notice required by subsection (3) (b) and has given any notice required under subsection (3) (d),
(B) the date of the giving of each notice given under subsection (3) (d), and
(C) that no creditor objects to the amalgamation other than on grounds that are frivolous or vexatious.
(3) Before an amalgamating company files with the registrar an affidavit that contains the statements referred to in subsection (2) (b) (ii), the amalgamating company must
(a) send by registered mail or deliver, to each known creditor of the company having a claim against the company that exceeds the prescribed amount, a written notice that complies with paragraph (c) of this subsection,
(b) publish in a newspaper distributed in the place where the company has its registered office a notice that complies with paragraph (c),
(c) ensure that each notice given under paragraph (a) and each notice published under paragraph (b)
(i) states that the company intends to amalgamate with one or more specified corporations in accordance with this Act,
(ii) includes a statement by a director or senior officer of the amalgamating company as to whether or not the director or senior officer believes and has reasonable grounds for believing that the amalgamated company will not be insolvent at the time that the amalgamation becomes effective, and
(iii) states one of the following:
(A) the company will proceed with the amalgamation unless, within 30 days after the date of the delivery or mailing of the notice, the court orders otherwise and a copy of the entered order is filed with the registrar;
(B) a creditor of the company who intends to object to the amalgamation must send to the company a written notice of objection within 15 days after the date of the delivery, mailing or publication of that notice, as the case may be, and
(d) send by registered mail , or deliver, to each creditor who provides a written notice of objection to the company in accordance with paragraph (c) (iii) (B) within the time required by that paragraph, a written notice stating that the company intends to proceed with the amalgamation unless, within 15 days after the date of the notice sent under this paragraph, the court orders otherwise and a copy of the entered order is filed with the registrar.
(4) A creditor having a claim against the company that exceeds the prescribed amount may, whether or not that creditor receives a notice under subsection (3) (a) or (d), apply to the court for an order enjoining the proposed amalgamation.
(5) An application contemplated by subsection (3) (c) (iii) (A), (3) (d) or (4) must be made on such notice to the amalgamating company of which the applicant is a creditor as the court may order.
297 (1) Unless a copy of an entered court order is filed with the registrar under section 296 (3) (c) (iii) (A) or (d), if a notice of amalgamation that complies with section 294 and with section 295 (4) or 296 (1) and (2), as the case may be, is filed with the registrar, the amalgamating corporations are amalgamated and continue as an amalgamated company under this Division,
(a) if neither the date nor the time is specified by the notice of amalgamation, on the date and time that the notice of amalgamation is filed with the registrar,
(b) if a date but no time is specified, on the later of
(i) the date and time that the notice of amalgamation is filed with the registrar, and
(ii) the beginning of the date specified, or
(c) if both a date and time are specified, on the later of
(i) the date and time that the notice of amalgamation is filed with the registrar, and
(ii) the date and time specified.
(2) After amalgamating corporations are amalgamated as an amalgamated company under this Division, the registrar must
(a) prepare a certificate of amalgamation showing
(i) the name of the amalgamated company and the date and time of the amalgamation,
(ii) the names of the amalgamating corporations, and
(iii) for each amalgamating corporation that is a foreign corporation, the foreign corporation's jurisdiction,
(b) provide the certificate of amalgamation and a certified copy of the filed notice of amalgamation to the amalgamated company, and
(c) publish a notice of the amalgamation in the Gazette showing the names of the amalgamating corporations, the name of the amalgamated company, and the date and time of amalgamation.
298 (1) At the time that amalgamating corporations are amalgamated as an amalgamated company under this Division,
(a) the amalgamation of the amalgamating corporations and their continuation as one company becomes effective and irrevocable,
(b) the amalgamated company has, as its articles,
(i) in an amalgamation to which section 291 applies, the articles of the amalgamating holding corporation,
(ii) in an amalgamation to which section 292 applies, the articles of the amalgamating subsidiary company the shares of which are not cancelled, or
(iii) in an amalgamation to which subparagraphs (i) and (ii) of this paragraph do not apply,
(A) if articles are attached to the amalgamation agreement under section 288 (a), those articles, or
(B) if articles are not attached to the amalgamation agreement, Table A,
(c) the amalgamated company has, as its notice of articles,
(i) in an amalgamation to which section 291 applies, the notice of articles of the amalgamating holding corporation,
(ii) in an amalgamation to which section 292 applies, the notice of articles of the amalgamating subsidiary company the shares of which are not cancelled, or
(iii) in an amalgamation to which subparagraphs (i) and (ii) of this paragraph do not apply, the notice of amalgamation,
(d) the amalgamated company becomes capable immediately of exercising the functions of an incorporated company,
(e) the shareholders of the amalgamated company have the powers and the liability provided in this Act,
(f) subject to section 290, each shareholder of each amalgamating corporation is bound by the amalgamation agreement, if any,
(g) the property, rights and interests of each amalgamating corporation continue to be the property, rights and interests of the amalgamated company,
(h) the amalgamated company continues to be liable for the obligations of each amalgamating corporation,
(i) an existing cause of action, claim or liability to prosecution is unaffected,
(j) a legal proceeding being prosecuted or pending by or against an amalgamating corporation may be prosecuted, or its prosecution may be continued, as the case may be, by or against the amalgamated company, and
(k) a conviction against, or a ruling, order or judgment in favour of or against, an amalgamating corporation may be enforced by or against the amalgamated company.
(2) An amalgamation does not constitute an assignment by operation of law, a transfer or any other disposition of the property, rights and interests of an amalgamating company to the amalgamated company.
(3) Whether or not the requirements precedent and incidental to amalgamation have been complied with, either a certificate of amalgamation, whether as originally issued by the registrar or as corrected under section 414, or a notation in the corporate register that corporations have been amalgamated as an amalgamated company is conclusive evidence for the purposes of this Act and for all other purposes that the corporations have been duly amalgamated under this Act as of the date and time shown in the certificate of amalgamation or in the corporate register, as the case may be.
Division 4 -- Amalgamation into a Foreign
Jurisdiction
299 In this Division:
"amalgamate" includes any procedure that results in or that creates an amalgamated foreign corporation, and "amalgamation" has a corresponding meaning;
"amalgamated foreign corporation" means the corporation that results from or is created by or remains after an amalgamation involving a company, if the resultant corporation is, as a result of the amalgamation, subject to the laws of a jurisdiction other than British Columbia to the same extent as if the corporation were a foreign corporation and that other jurisdiction were the foreign corporation's jurisdiction.
300 (1) Subject to subsection (3), one or more companies and one or more foreign corporations may amalgamate to form an amalgamated foreign corporation if
(a) the laws of each of the amalgamating foreign corporations' jurisdictions allow the amalgamation,
(b) each amalgamating foreign corporation obtains the approval to the amalgamation required by its charter and otherwise complies with the laws of the foreign corporation's jurisdiction,
(c) each amalgamating company obtains approval to the amalgamation as follows:
(i) the shareholders resolve, by a special resolution, to approve the amalgamation;
(ii) the shareholders holding shares of a class or series of shares to which are attached rights or special rights or restrictions that would be prejudiced or interfered with by the amalgamation, in a separate vote of those shareholders, resolve by a special resolution to approve the amalgamation, and
(d) each amalgamating company obtains authorization from the registrar to enter into the amalgamation.
(2) Each share of a company carries the right to vote in respect of a resolution referred to in subsection (1) (c) whether or not that share otherwise carries the right to vote.
(3) A company must not amalgamate with a foreign corporation to form an amalgamated foreign corporation unless the laws of the foreign corporation's jurisdiction provide that
(a) the property, rights and interests of the amalgamating company continues to be the property, rights and interests of the amalgamated foreign corporation,
(b) the amalgamated foreign corporation continues to be liable for the obligations of the amalgamating company,
(c) an existing cause of action, claim or liability to prosecution involving an amalgamating company is unaffected,
(d) a legal proceeding being prosecuted or pending by or against an amalgamating company may be prosecuted or its prosecution may be continued, as the case may be, by or against the amalgamated foreign corporation, and
(e) a conviction against, or a ruling, order or judgment in favour of or against, an amalgamating company may be enforced by or against the amalgamated foreign corporation.
(4) A company seeking authorization from the registrar to amalgamate with a foreign corporation under this section must submit to the registrar for filing
(a) an application for authorization in the prescribed form, and
(b) an affidavit of one of its directors or senior officers that complies with section 296 (2) (b) and that states whichever of the following is applicable:
(i) the company has entered into an amalgamation agreement with the other amalgamating corporations that complies with sections 287 and 288;
(ii) the company proposes to amalgamate with one or more other corporations in an amalgamation to which section 291 or 292, as the case may be, would apply were the amalgamation to result in an amalgamated corporation that is a company.
(5) Section 296 (3) and (4) applies to an amalgamation proposed under this section.
(6) The registrar must authorize the company to amalgamate under this section if the registrar is satisfied that
(a) the application is not prohibited by subsection (3),
(b) each amalgamating company has complied with subsection (4),
(c) each amalgamating company has filed with the registrar all of the records that the company is required to file with the registrar under this Act, and
(d) a copy of an entered court order, as referred to in section 296 (3) (c) (iii) (A) or (d), has not been filed with the registrar.
(7) A company that has, under this section, amalgamated with one or more foreign corporations must promptly file with the registrar
(a) a copy of any record issued to the amalgamated foreign corporation by the foreign corporation's jurisdiction to effect or confirm the amalgamation, and
(b) any other information or records the registrar may require.
(8) If the records referred to in subsection (7) are submitted to the registrar in respect of an amalgamation authorized by the registrar under subsection (6), the registrar must file those records.
(9) The company ceases to be a company within the meaning of this Act on the date recorded in the corporate register as being the date on which the company was amalgamated with one or more foreign corporations under this section.
301 A shareholder of an amalgamating company may give a notice of dissent, under Division 2 of Part 8, to the amalgamating company of which the person is a shareholder in respect of a resolution under section 300 (1) (c) that is proposed to approve an amalgamation under this Division.
302 (1) A company may propose an arrangement with shareholders, creditors or other persons and may, in that arrangement, make any proposal it considers appropriate, including a proposal for one or more of the following:
(a) an alteration to the memorandum, notice of articles or articles of the company;
(b) an alteration to any of the rights or special rights or restrictions attached to any of the shares of the company;
(c) an amalgamation of the company with one or more corporations;
(d) a division of the business carried on by a company;
(e) a transfer of all or any part of the property, rights and interests of the company to another corporation in exchange for money, securities or other property, rights and interests of the other corporation;
(f) an exchange of securities of the company held by security holders for property, rights or interests of the company or for property, rights or interests of another corporation;
(g) a dissolution without liquidation, or a liquidation and dissolution, of the company;
(h) a compromise between the company and its creditors or any class of its creditors, or between the company and the persons holding its securities or any class of those persons.
(2) Before an arrangement proposed under this section takes effect, the arrangement must be
(a) adopted in accordance with section 303, and
(b) approved by the court under section 305.
303 (1) Despite section 282, an arrangement is adopted for the purposes of section 302 if,
(a) in respect of an arrangement proposed with shareholders of the company, the shareholders vote in favour of the arrangement by a special resolution,
(b) in respect of an arrangement proposed with shareholders holding shares of a class or series of shares of the company, those shareholders, in a separate vote, vote in favour of the arrangement by a special resolution,
(c) in respect of an arrangement proposed with creditors of the company or a class of creditors of the company, a majority in number and 3/4 in value of the creditors or class of creditors, as the case may be, present and voting, either in person or by proxy, at a meeting convened in accordance with subsection (2) of this section, vote in favour of the arrangement,
(d) in respect of an arrangement proposed with any other persons, those persons vote in favour of the arrangement in the manner and to the extent required by the court, or
(e) in respect of any arrangement, all of the persons who would be entitled to vote under this section in respect of the arrangement consent to the arrangement in writing.
(2) Subject to subsection (3), if the court orders, under section 305, that a meeting be held to adopt an arrangement,
(a) the arrangement must not be submitted to the court for approval until after it has been adopted at that meeting or has been consented to under subsection (1) (e) of this section, and
(b) unless the court orders otherwise, the company must give notice of the meeting as required by section 304, and must conduct the meeting
(i) at a date, time and place, in the manner and with notice to the persons required by the articles, or
(ii) if and to the extent that the articles do not address any of those matters, at a date, time and place, in the manner and with notice to the persons that the directors consider appropriate.
(3) If a resolution adopting an arrangement is consented to under subsection (1) (e),
(a) any meeting that was required to be held under an order made under section 305 need not be held, and
(b) the resolution is as valid as if it had been passed at the required meeting.
304 (1) If a meeting is convened to adopt an arrangement, the company must, unless the court orders otherwise,
(a) include with any notice of the meeting that is sent to a person with whom an arrangement is proposed, a statement explaining, in sufficient detail to permit the recipient to form a reasoned judgment concerning the matter, the effect of the arrangement and stating any material interest of each director and officer, whether as director, officer, shareholder, security holder or creditor of the company, or otherwise, and
(b) include in any notice of the meeting that is given by advertisement,
(i) the statement required by paragraph (a), or
(ii) a notification of the place at which and the manner in which the persons who are entitled to attend the meeting may obtain copies of the statement before the meeting.
(2) If the arrangement affects the rights of qualifying debentureholders, the statement referred to in subsection (1) (a) must, unless the court orders otherwise or unless the trustee for the qualifying debentureholders is a savings institution, include the like explanation with respect to the trustee for the qualifying debentureholders as, under subsection (1) (a), must be given with respect to the directors and officers.
(3) A company that has stated in a notice referred to in subsection (1) (b) that copies of the statement referred to in subsection (1) (a) may be obtained must, unless the court orders otherwise, send, promptly and without charge, a copy of the statement to each person entitled to attend the meeting who requests a copy.
(4) Section 48 applies to a company that is obliged to provide a copy of a statement under subsection (3) of this section.
305 (1) If an arrangement is proposed, the court may make an order respecting that arrangement under subsection (2)
(a) on its own motion,
(b) on an application for approval of the arrangement, or
(c) on an application of the company or of a person who is a member of the class of persons with whom the arrangement is proposed.
(2) The court may make any order it considers appropriate under subsection (1), including any of the following orders:
(a) determining the notice to be given to any interested person or dispensing with notice to any person;
(b) requiring the company to do one of the following in the manner and with the notice the court directs:
(i) call and conduct a meeting or an additional meeting of the persons the court considers appropriate;
(ii) hold a separate vote of the persons the court considers appropriate;
(c) permitting a shareholder to dissent under Division 2 of Part 8, or in any other manner the court may direct, if an arrangement is adopted and is approved by the court;
(d) appointing a lawyer, at the expense of the company, to represent the interests of some or all of the shareholders;
(e) directing that an arrangement proposed with the creditors or a class of creditors of the company be referred to the shareholders of the company in the manner and for the approval the court considers appropriate.
(3) As part of any order made in respect of a company under subsection (2) (c), the court
(a) may direct the company to send, in the manner specified by the order, a copy of the entered order to all or specified shareholders, and
(b) must order that a shareholder to whom a copy of the entered order is sent in accordance with paragraph (a) of this subsection must not exercise the dissent rights provided by the order unless those rights are exercised within a specified number of days after the receipt by that shareholder of the copy of the entered order.
(4) Without limiting subsection (1) or (2) but despite any other provision of this Act, on an application for approval of the arrangement, the court may make the orders it considers appropriate, including,
(a) if the arrangement has been adopted under section 303 and, if required, approved by the shareholders in accordance with an order made under subsection (2) (e) of this section, an order approving or refusing to approve the arrangement as proposed by the company, and
(b) if, under the arrangement, any part of the property, rights and interests of the company is to be transferred to another company,
(i) an order providing for the allotment or appropriation by the transferee company of any shares, debentures or other like interests in that company that, under the arrangement, are to be allotted or appropriated by that company to or for any person,
(ii) an order providing for the continuation by or against the transferee company of any legal proceedings pending by or against the transferor company, or
(iii) an order providing for the dissolution of the transferor company.
(5) If an order of the court made under this section provides for the transfer of property, rights or interests,
(a) the property, rights or interests are deemed to be transferred to and vested in the transferee when the applicable provisions of the order made in respect of the arrangement come into effect under section 306, and
(b) any particular property, rights or interests that are, by the arrangement, to be freed from any charge are freed from that charge if the order so directs.
(6) The company must deposit in its records office a copy of each entered order made under this section promptly after the order is entered.
306 (1) Subject to sections 307 to 310, if an arrangement is approved by a court order under section 305, a provision in the arrangement that does not affect any information contained in the corporate register takes effect,
(a) if neither the date nor the time is specified by the order, on the pronouncement of the order,
(b) if a date but no time is specified, at the beginning of the date specified, or
(c) if both a date and time are specified, on the date and time specified.
(2) Subject to sections 307 to 310, if an arrangement is approved by a court order under section 305, a provision in the arrangement that will, on taking effect, render information contained in the corporate register incorrect or incomplete takes effect,
(a) if neither the date nor the time is specified by the order, the date and time that a copy of the entered order is filed with the registrar,
(b) if a date but no time is specified, on the later of
(i) the date and time that a copy of the entered order is filed with the registrar, and
(ii) the beginning of the date specified, or
(c) if both a date and time are specified, on the later of
(i) the date and time that a copy of the entered order is filed with the registrar, and
(ii) the date and time specified.
307 (1) This section applies if
(a) an arrangement, in respect of a pre-existing company that has not yet filed a notice of articles with the registrar, is approved by a court order under section 305, and
(b) a provision in the arrangement will, on taking effect,
(i) alter the memorandum of that company, or
(ii) otherwise affect that company so that information contained in its memorandum is incorrect or incomplete.
(2) In the circumstances referred to in subsection (1), the company must, promptly after the pronouncement of the order,
(a) file with the registrar a copy of the entered order, and
(b) comply with section 442.
(3) A provision referred to in subsection (1) (b) takes effect,
(a) if neither the date nor the time is specified by either the order or in the notice of articles filed under subsection (2) (b), on the later of
(i) the date and time that a copy of the entered order is filed with the registrar, and
(ii) the date and time that a copy of the notice of articles is filed with the registrar,
(b) if a date but no time is specified by one or both of the order and the notice of articles, on the last to occur of
(i) the date and time at which the provision would have come into force under paragraph (a) of this subsection had no date and time been specified by the order or notice of articles,
(ii) the beginning of the date specified by the order, and
(iii) the beginning of the date specified by the notice of articles, or
(c) if both a date and time are specified by one or both of the order and the notice of articles, on the last to occur of
(i) the date and time at which the provision would have come into force under paragraph (a) of this subsection had no date and time been specified by the order or notice of articles,
(ii) the date and time at which the provision would have come into force under paragraph (b) of this subsection had a date but no time been specified by the order or notice of articles,
(iii) the date and time specified by the order, and
(iv) the date and time specified by the notice of articles.
308 (1) If a provision in an arrangement approved by a court order under section 305 will, on taking effect, alter the company's notice of articles or otherwise affect the company so that information contained in the notice of articles is incorrect or incomplete, the company must, promptly after the pronouncement of the order, file with the registrar
(a) a copy of the entered order, and
(b) a notice of alteration, in the prescribed form, describing the alteration or correcting or completing the information.
(2) A provision referred to in subsection (1) takes effect,
(a) if neither the date nor the time is specified by either the order or the notice of alteration, on the later of
(i) the date and time that a copy of the entered order is filed with the registrar, and
(ii) the date and time that a copy of the notice of alteration is filed with the registrar,
(b) if a date but no time is specified by one or both of the order and the notice of alteration, on the last to occur of
(i) the date and time at which the provision would have come into force under paragraph (a) of this subsection had no date and time been specified by the order or notice of alteration,
(ii) the beginning of the date specified by the order, and
(iii) the beginning of the date specified by the notice of alteration, or
(c) if both a date and time are specified by one or both of the order and the notice of alteration, on the last to occur of
(i) the date and time at which the provision would have come into force under paragraph (a) of this subsection had no date and time been specified by the order or notice of alteration,
(ii) the date and time at which the provision would have come into force under paragraph (b) of this subsection had a date but no time been specified by the order or notice of alteration,
(iii) the date and time specified by the order, and
(iv) the date and time specified by the notice of alteration.
309 (1) If a provision in an arrangement approved by a court order under section 305 will, on taking effect, alter the company's articles or otherwise affect the company or its shares so that information contained in the articles is incorrect or incomplete, the company must, promptly after the pronouncement of the order, deposit a copy of the entered order in its records office.
(2) A provision referred to in subsection (1) takes effect,
(a) if section 308 (1) applies, on the later of
(i) the date and time that the provision in the order takes effect under section 308 (2), and
(ii) the date and time that a copy of the entered order is received at the company's records office, or
(b) in any other case,
(i) if neither the date nor the time is specified by the order, the date and time that a copy of the entered order is received at the company's records office,
(ii) if a date but no time is specified, on the later of
(A) the date and time that a copy of the entered order is received at the company's records office, and
(B) the beginning of the date specified, or
(iii) if both a date and time are specified, on the later of
(A) the date and time that a copy of the entered order is received at the company's records office, and
(B) the date and time specified.
310 (1) If a provision in an arrangement approved by a court order under section 305 will, on taking effect, result in an amalgamation of the company with one or more corporations, the company must, promptly after the pronouncement of the order, file with the registrar
(a) a copy of the entered order, and
(b) a notice of amalgamation in the prescribed form.
(2) A provision referred to in subsection (1) takes effect,
(a) if neither the date nor the time is specified by either the order or the notice of amalgamation, on the later of
(i) the date and time that a copy of the entered order is filed with the registrar, and
(ii) the date and time that a copy of the notice of amalgamation is filed with the registrar,
(b) if a date but no time is specified by one or both of the order and the notice of amalgamation, on the last to occur of
(i) the date and time at which the provision would have come into force under paragraph (a) of this subsection had no date and time been specified by the order or notice of amalgamation,
(ii) the beginning of the date specified by the order, and
(iii) the beginning of the date specified by the notice of amalgamation, or
(c) if both a date and time are specified by one or both of the order and the notice of amalgamation, on the last to occur of
(i) the date and time at which the provision would have come into force under paragraph (a) of this subsection had no date and time been specified by the order or notice of amalgamation,
(ii) the date and time at which the provision would have come into force under paragraph (b) of this subsection had a date but no time been specified by the order or notice of amalgamation,
(iii) the date and time specified by the order, and
(iv) the date and time specified by the notice of amalgamation.
(3) Sections 297 (2) and 298 (1) (a) and (d) to (k), (2) and (3) apply to an amalgamation effected under this Division and the amalgamated company has as its articles and notice of articles the articles and notice of articles ordered by the court.
311 (1) Subject to section 312 (2), on and from the date on which a provision of an arrangement takes effect under section 306, 307, 308, 309 or 310, as the case may be, the provision is binding on the company and on the persons with whom the arrangement was proposed.
(2) Nothing in this section affects the rights of a company and a dissenter under Division 2 of Part 8.
(3) Part 10 applies to a liquidation and dissolution effected under this Division as if the order approving the arrangement were an order made under that Part.
312 (1) Whether or not a court order made under section 305 establishes one or more dates on which provisions of the order are to take effect, the directors of the company in respect of which the order was made may resolve not to proceed with the arrangement that is the subject matter of the order.
(2) Neither the company nor the shareholders, security holders or creditors with whom the arrangement was proposed are bound by the provisions of the arrangement if, before any of the provisions of the order made in respect of that arrangement under section 305 come into effect under section 306, 307, 308, 309 or 310, as the case may be,
(a) the directors pass a resolution under subsection (1) of this section resolving not to proceed with the arrangement, and
(b) in the case of an order referred to in section 306 (2), 307, 308 or 310, a notice of withdrawal from arrangement in the prescribed form is filed with the registrar before the order takes effect.
(3) Promptly after complying with subsection (2), the directors must send notice to the shareholders, security holders or creditors with whom the arrangement was proposed that the company has withdrawn from the arrangement.
Division 6 -- Compulsory Acquisitions
313 (1) For the purposes of this section:
"acquiring company" means a company that, under a scheme or contract, makes an acquisition offer;
"acquisition offer" means an offer made by an acquiring company to acquire all of the shares, or all of the shares of any class of shares of another company;
"subject company" means the company, the shares or class of shares of which are the subject of an acquisition offer.
(2) For the purposes of this section,
(a) every acquisition offer for shares of more than one class of shares is deemed to be a separate offer for shares of each class of shares, and
(b) each acquisition offer is accepted if, within 4 months after the making of the offer, the offer is accepted as to the shares, or as to the class of shares involved, by shareholders holding not less than 9/10 of those shares, or of the shares of that class of shares, other than shares already held at the date of the offer by, or by a nominee for, the acquiring company or its affiliate.
(3) If an acquisition offer is accepted within the meaning of subsection (2) (b), the acquiring company may, within 5 months after making the offer, give written notice to any shareholder of the subject company who holds shares or shares of the class of shares involved in the offer and who did not accept the offer, that the acquiring company desires to acquire that shareholder's shares.
(4) If a notice is given to a shareholder under subsection (3), the acquiring company is entitled and bound to acquire all of the shares of that shareholder that are involved in the acquisition offer for the price and on the terms in the offer unless the court orders otherwise on an application made by that shareholder within 2 months after the date of the notice.
(5) On an application by a shareholder under subsection (4), the court may
(a) set the price and terms of payment, and
(b) make consequential orders and give directions the court considers appropriate.
(6) If a notice has been given by an acquiring company under subsection (3) and the court has not ordered otherwise under subsection (4), the acquiring company must, on the expiration of 2 months after the date of the notice, or, if an application to the court by the shareholder to whom the notice was given is then pending, at any time after that application has been disposed of, send a copy of the notice to the subject company and pay or transfer to the subject company the amount or other consideration representing the price payable by the acquiring company for the shares that by this section the acquiring company is entitled to acquire, and, on receiving the copy of the notice and that amount or other consideration, the subject company must register the acquiring company as a shareholder with respect to those shares.
(7) Any sum received by the subject company under this section must be paid into a separate bank account and, together with any other consideration so received, must be held by the subject company, or by a trustee approved by the court, in trust for the persons entitled to that sum.
(8) A person, other than a company, must not deliver a notice or form that contains a statement or makes a representation to any shareholder of a company to the effect that the person proposes to rely on any enactment to acquire the shareholder's shares of the company, or that the person can compel the shareholder to transfer the shareholder's shares of the company to the person.
(9) Each acquiring company must, within one month after becoming entitled to give the notice referred to in subsection (3), if the acquiring company has not given that notice, give a written notice to each shareholder referred to in subsection (3) that the shareholder, within 3 months after receipt of the notice, may require the acquiring company to acquire the shares of that shareholder that are involved in the acquisition offer.
(10) If a shareholder of a subject company requires the acquiring company to acquire the shareholder's shares in accordance with subsection (9), the acquiring company must acquire those shares for the price and on the terms in the acquisition offer.
Division 7 -- Sale of Undertaking
314 (1) A company may sell, lease or otherwise dispose of all or substantially all of its undertaking
(a) in the ordinary course of its business, or
(b) if it has been authorized to do so by a special resolution.
(2) If the sale, lease or other disposition of all or substantially all of a company's undertaking is not done in accordance with subsection (1), the court, subject to subsection (3), on application by any shareholder, director or creditor of the company, may do one or more of the following:
(a) enjoin the proposed sale, lease or other disposition;
(b) set aside the sale, lease or other disposition;
(c) make any further order the court considers appropriate.
(3) A sale, lease or other disposition of all or substantially all of the undertaking of a company is valid, whether or not the sale or other disposition meets the requirements of subsection (1), if the sale, lease or other disposition is
(a) for valuable consideration to a person who is dealing with the company in good faith, or
(b) ratified by a special resolution.
(4) Despite the passage of a special resolution under subsection (1) (b) to authorize a sale, lease or other disposition of all or substantially all of the undertaking of a company, the directors may abandon the sale, lease or other disposition without further action by the shareholders.
(5) Any shareholder of the company may give notice of dissent, under Division 2 of Part 8, to the company in respect of a special resolution under subsection (1) (b) or (3) (b) of this section that is proposed to authorize or ratify the sale, lease or other disposition of all or substantially all of the company's undertaking.
(6) This section does not apply to a disposition of all or substantially all of the undertaking of the company
(a) by mortgage,
(b) by security interest as defined in the Personal Property Security Act, or
(c) to a wholly owned subsidiary of the company.
Division 8 -- Transfer of Incorporation
315 (1) If a foreign corporation seeks to be continued into British Columbia as a company, whether or not the foreign corporation is registered as an extraprovincial company,
(a) the foreign corporation must complete and submit for filing with the registrar a continuation application,
(b) the foreign corporation must set out, in its continuation application,
(i) the name reserved for it under section 23, or
(ii) if a name has not been reserved, a statement that the name by which it is to be recognized is the name created by adding "B.C. Ltd." after the incorporation number for the company,
(c) the foreign corporation must obtain any authorization for the continuation that it is required by the foreign corporation's jurisdiction to obtain, and must submit that authorization to the registrar for filing, and
(d) the directors of the foreign corporation, or those of the directors who are authorized by a resolution of the directors to do so, must sign articles that
(i) set out the name for the continued company,
(ii) otherwise comply with section 14 (1), (2) and (3) (b), and
(iii) will bind the foreign corporation once it is continued into British Columbia as a company.
(2) A continuation application under subsection (1) (a) must
(a) be in the prescribed form,
(b) include a continuation record that is in the prescribed form and contains the prescribed information, and
(c) contain any other prescribed material.
(3) The foreign corporation must make the amendments to its charter that are necessary to make the articles referred to in subsection (1) (d) conform to the laws of British Columbia.
(4) Nothing in this section prevents a foreign corporation from including in its continuation application or in the articles referred to in subsection (1) (d) provisions that differ from the provisions that were contained in the charter of the foreign corporation before the foreign corporation was continued into British Columbia as a company.
316 (1) A foreign corporation is continued into British Columbia as a company,
(a) if neither the date nor the time is specified by the continuation application, on the date and time that the continuation application is filed with the registrar,
(b) if a date but no time is specified, on the later of
(i) the date and time that the continuation application is filed with the registrar, and
(ii) the beginning of the date specified, or
(c) if both a date and time are specified, on the later of
(i) the date and time that the continuation application is filed with the registrar, and
(ii) the date and time specified.
(2) After a foreign corporation is continued into British Columbia as a company, the registrar must
(a) prepare a certificate of continuation showing the name of the continued company and the date and time at which it was continued into British Columbia as a company,
(b) provide to the company
(i) the certificate of continuation, and
(ii) a certified copy of the filed continuation application, and
(c) publish a notice of the continuation in the Gazette.
317 (1) At the time that a foreign corporation is continued into British Columbia as a company under this Division,
(a) this Act applies to the continued company to the same extent as if the company had been incorporated under this Act,
(b) the completed continuation record referred to in section 315 (2) (b) is deemed to be the notice of articles for the company,
(c) the property, rights and interests of the foreign corporation continues to be the property, rights and interests of the company,
(d) the company continues to be liable for the obligations of the foreign corporation,
(e) an existing cause of action, claim or liability to prosecution is unaffected,
(f) a legal proceeding being prosecuted or pending by or against the foreign corporation may be prosecuted or its prosecution may be continued, as the case may be, by or against the company, and
(g) a conviction against, or a ruling, order or judgment in favour of or against, the foreign corporation may be enforced by or against the company.
(2) Whether or not the requirements precedent and incidental to continuation have been complied with, either a certificate of continuation, whether as originally issued by the registrar or as corrected under section 414, or a notation in the corporate register that a foreign corporation has been continued into British Columbia as a company is conclusive evidence for the purposes of this Act and for all other purposes that the foreign corporation has been duly continued into British Columbia as a company under this Act as of the date and time shown in the certificate of continuation or in the corporate register, as the case may be.
318 (1) In this section, "share" includes an option, warrant, fractional share or evidence of an interest in or a right to acquire an interest in a foreign corporation being continued into British Columbia as a company.
(2) Subject to section 109 (1), if a foreign corporation continued into British Columbia as a company under this Division issued a share before the foreign corporation was so continued, the share is deemed to have been issued in compliance with this Act and with the provisions of the articles applicable to the continued company under section 319
(a) whether or not the share is fully paid, and
(b) despite any special rights or restrictions set out on or referred to in the certificate representing the share.
(3) Continuation of a foreign corporation into British Columbia as a company under this Division does not deprive a person holding an issued share of the foreign corporation of any right or special rights or restrictions that that person claims under, or relieve the person from any liability in respect of, that share.
(4) Despite section 56 (5), if a foreign corporation that has been continued into British Columbia as a company under this Division had, before it was so continued, issued in registered form a share certificate that is convertible to bearer form, the company may, if a person holding that share certificate exercises the conversion privilege attached to that share, issue a share certificate in bearer form for the same number of shares to the person.
319 When a foreign corporation is continued into British Columbia as a company, the continued company has, as its articles,
(a) if one or more of the directors of the company have signed articles, those articles, or
(b) in any other case, Table A.
320 (1) Subject to section 321, a company may, if it is authorized by the shareholders and by the registrar in accordance with this section, make an application to the appropriate official or public body of another jurisdiction requesting that the company be continued in that other jurisdiction as if the company had been incorporated under the laws of that other jurisdiction.
(2) A shareholder of a company referred to in subsection (1) may give a notice of dissent, under Division 2 of Part 8, to the company in respect of a resolution that is proposed to authorize the continuation of the company into a jurisdiction other than British Columbia.
(3) A company is authorized by the shareholders to apply for continuation into a jurisdiction other than British Columbia when
(a) the shareholders authorize the continuation by a special resolution, and
(b) those shareholders who hold shares of a class or series of shares to which are attached rights or special rights that would be prejudiced or interfered with by the continuation, in a separate vote of those shareholders, vote in favour of the continuation by a special resolution.
(4) A company seeking, under subsection (1), to be continued into a foreign jurisdiction must, before applying to that foreign jurisdiction for continuation into that jurisdiction, submit to the registrar an application for authorization in the prescribed form and obtain an authorization under subsection (5) from the registrar.
(5) The registrar must authorize the company to continue into the foreign jurisdiction if the registrar is satisfied that
(a) the company is not prohibited by section 321 from applying to be continued into the foreign jurisdiction, and
(b) the company has filed with the registrar all of the records that the company is required to file with the registrar under this Act.
(6) The authorization provided by the registrar under subsection (5) expires 6 months after the date on which that authorization was given unless, within that 6 month period, the company is continued into the other jurisdiction.
(7) At any time before a company is continued into another jurisdiction, the company may abandon an application under this section if authorized to do so by a directors' resolution or an ordinary resolution.
(8) Promptly after the date on which a company is continued into another jurisdiction, it must file with the registrar a copy of the instrument of continuation issued to it by the other jurisdiction.
321 A company must not apply, under section 320 (1), to be continued into another jurisdiction unless the laws of that other jurisdiction provide in effect that, after continuation,
(a) the property, rights and interests of the company continue to be the property, rights and interests of the continued corporation,
(b) the continued corporation continues to be liable for the obligations of the company,
(c) an existing cause of action, claim or liability to prosecution is unaffected,
(d) a legal proceeding being prosecuted or pending by or against the company may be prosecuted or its prosecution may be continued, as the case may be, by or against the continued corporation, and
(e) a conviction against, or a ruling, order or judgment in favour of or against, the company may be enforced by or against the continued corporation.
322 (1) Promptly after an instrument of continuation is filed under section 320 (8), the registrar must publish in the Gazette
(a) a notice that the company in respect of which the instrument was received has been continued into that other jurisdiction, and
(b) the date on which the continuation took place.
(2) The company ceases to be a company within the meaning of this Act on the date recorded in the corporate register as being the date on which the company was continued into the other jurisdiction.
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