2C15Incorporation Checklist
[See §§2.726 to 2.751]
INCORPORATION/ORGANIZATION DATA FORM
NON-OFFERING CORPORATION
INSTRUCTIONS
1.Part A of this form may be used for incorporation.
2.Part B may be used for organization.
DEFINITIONS
1.“OBCA” – Business Corporations Act (Ontario)
2.“CBCA” – Canada Business Corporations Act
3.“BNA” – Business Names Act
A.INFORMATION REQUIRED TO COMPLETE APPLICATION FOR INCORPORATION
1.INCORPORATION JURISDICTION
1.1Ontario
Canada
Other
1.2Date Required (if any): [______]
1.3If Canada, please indicate consent to receiving electronic communication.
Yes [______]
No [______]
Address
2.NAME OF CORPORATION
2.1First Choice: [______]
Alternative Choice: [______]
French Name, if any:1[___]
Should we obtain a translation:
Yes [______]
No [______]
Foreign Language name, if any: [______]
2.2Will consents be available:
Yes [______]
No [______]
3.ADDRESSES2
3.1Registered OfficeMunicipality:
City of Toronto[______]
Other: [______]
3.2Registered Office Street Address:
[______]
[______]
Telephone No.: [______] Fax No.: [______] E-mail add.: [______]
Name of Contact: [name ]
3.3Mailing Address (where correspondence is addressed)
[______]
[______]
Name of Contact: [name [
Telephone No.: [______] Fax No.: [______] E-mail add.: [______]
3.4Place(s) of Business (if different from mailing address)
[______]
[______]
Name of Contact: [name ]
Telephone No.: [______] Fax No.: [______] E-mail add.: [______]
4.DIRECTORS
4.1Floating Board
(a)Minimum/Maximum Number1-10; or
Other: [______]
(b)Fixed Number [______]
4.2Fixed Board
Number [______]
4.3First Directors - Note - Resident Canadian3
[OBCA = Majority; CBCA = 25%]
Full Name(First, Middle & Last) / Residence Address, Telephone, Fax and
E-mail / Address for Service, Telephone, Fax and E-mail (Ontario Corporations Only) / Citizenship
5.NATURE OF BUSINESS
5.1Description of Business of Corporation:
[______]
[______]
5.2Activity Code:
[______] (A) / Agricultural and Related Service Industries / [______] (J) / Retail Trade Industries[______] (B) / Fishing/Trapping Industries / [______] (K) / Finance/Insurance Industries, including Holding & Investment Companies
[______] (C) / Logging/Forestry Industries / [______] (L) / Real Estate Operator/Insurance Agent Industries
[______] (D) / Mining (including Milling), Quarrying and Oil Well Industries / [______] (M) / Business Service Industries
[______] (E) / Manufacturing Industries / [______] (O) / Education Service Industries
[______] (F) / Construction Industries / [______] (P) / Health/Social Service Industries
[______] (G) / Transportation/Storage Industries / [______] (Q) / Accommodation/Food/
Beverage Service Industries
[______] (H) / Communication/Other Utility Industries / [______] (R) / Other Service Industries
[______] (I) / Wholesale Trade Industries / [______] (X) / None of the above
5.3Is there any restriction on the Corporation’s business?
Yes (Please specify)
[______]
No (standard)
5.4Are any approvals required for the incorporation:
No [______]
YesList: [______]
6.AUTHORIZED CAPITAL
6.1Are only Common Shares required?
Yes [______]
Unlimited Number (standard)
Limited Number [______]
6.2If more than one class of shares list classes.
Common
No share attributes (standard)
Preferred
Other (Please specify) [______]
6.3List share attributes on Schedule A.
6.4Are holders of fractional shares to have voting rights and dividend entitlement (O.B.C.A. s. 57(3); C.B.C.A. s.49(17))
Yes [______]
No (standard)
6.5Restrictions on Transfer
Standard4 (see below)
See attached
6.6Restrictions on Class or Series Vote
If there is more than one class of shares, is clause restricting separate class or series voting rights upon a proposal to amend articles to be included? (O.B.C.A. s.170(1) C.B.C.A. s.176(1)).
(Note: This may remove right to dissent on such amendments for non-voting shares.)
Yes [______]
No (standard)
7.SPECIAL PROVISIONS
7.1Include Usual Private Issuer Provisions in addition to the standard transfer restriction in 6.5 as follows:
Yes (Standard)
No [______]
The outstanding securities of the Corporation shall be beneficially owned, directly or indirectly, by not more then 50 persons, not including employees and former employees of the Corporation or its affiliates, provided that each person is counted as one beneficial owner unless the person is created or used solely to purchase or hold securities of the Corporation in which case each beneficial owner or each beneficiary of the person, as the case may be, must be counted as a separate beneficial owner.
7.2Other Provisions
Lien for indebtedness (standard)
Voting for fractional shares
Paramountcy of Unanimous Shareholder Agreement
B.INFORMATION REQUIRED TO COMPLETE ORGANIZATION
8.DATE OF ORGANIZATION
8.1
Day of Incorporation
other [______]
9.PRE-INCORPORATION CONTRACTS
Are there any pre-incorporation contracts to be adopted by the Corporation? If so, please attach copy.
Yes [______]
No [______]
9.1Does the Corporation require a corporate seal?
Yes [______]
No (standard)
10.PERMANENT DIRECTORS5 (Written consent to act must be obtained before elections or within 10 days after election).
10.1If a floating board, is precise number to be fixed by
Directors [__]OR
shareholders (standard) [__]
10.2Quorum for directors’ meetings:
majority (standard)OR
[state number ]
10.3Notice for directors’ meetings
48 hours (standard)OR[state notice required ]
10.4Does chairman have casting vote?
Yes [______]
No (standard)
10.5PERMANENT DIRECTORS6
Full Name(include first name, all middle name(s) in full) / Residence Address
Telephone, Fax and E-mail / Address for Service
Telephone, Fax and E-mail
(Ontario Corporations) / Citizenship
11.PERMANENT OFFICERS7 (Ontario Corporations - only the five most senior officers will be recorded on the public record- please indicate priority).
Office(in order of seniority / Full Name, Middle Initial and Surname / Residence Address Telephone, Fax and E-mail / Address for Service
Telephone, Fax and E-mail (Ontario Corporation)
Chairman
President
Vice-President
Secretary
Treasurer
Other
11.1Managing Director8
Yes [______]
No [______]
11.2Do you wish a Unanimous Shareholder Agreement restricting the powers of the directors?
Yes [______]
No [______]
11.3Do you wish indemnities prepared for the directors who are not office directors?
No [______]
Yes [______]
If so, please name: [______]
[______]
12.REGISTERED AND BENEFICIAL SECURITY HOLDERS9
12.1(a)Registered Shareholders:
Full Name, Address and E-mail Address / Accredited Investor (Y/N) / Accredited Investor (Category under OSC Rule 45-501) / Class / Number / Aggregate Price Paid12.1(b) Canada Corporation Only:
Will the above shareholders consent to electronic communications.
Yes [______]
No [______]
If yes, please indicate email address above.
12.2Beneficial Shareholders:
Full Name, Address and E-mail Address / Accredited Investor (Y/N) / Accredited Investor (Category under OSC Rule 45-501) / Class / Number / Aggregate Price Paid12.3Registered Holders of Other Securities (e.g., Promissory Note, Debenture):
Full Name, Address and E-mail Address / Accredited Investor (Y/N) / Accredited Investor (Category under OSC Rule 45-501) / Class / Number / Aggregate Price Paid12.4Beneficial Holders of Other Securities (e.g .. Promissory Note, Debenture):
Full Name, Address and E-mail Address / Accredited Investor (Y/N) / Accredited Investor (Category under OSC Rule 45-501) / Class / Number / Aggregate Price Paid12.5If any of the securities of a "private issuer" are to be beneficially owned, directly or indirectly, by a person or company that is an accredited investor (see attached Schedule B), these persons or companies must be included in the "50" beneficial security holder limitation and must have acquired their securities as principal.10
12.6If any of the securities of a "private issuer" are to be beneficially owned, directly or indirectly, by a person who is a current or former employee of the Corporation or an affiliated entity of the Corporation, those persons need not be included in the "50" beneficial security holder information.11
Securities are beneficially owned by current or former employees.
No [______]
Yes [______]If yes, please provide details:
[______]
12.7Has the Corporation provided an offering memorandum in connection with the issuance of any of the above securities (provide copies):
Yes [______]
No [______]
12.8If a share is to be issued for consideration other than money - (Note: OBCA S23(4), CBCA s. 25(3)), please provide:
(a)the amount of money the corporation would have received if the share had been issued for money;
[amount ]
(b)EITHER:
(i)the fair value of the property or past service in consideration of which the share is issued:
[______]
[______]
OR:
(ii)confirm that such property or past service has a fair value that is not less than the amount of money referred to in (a) above.
AND:
(c)confirm amount to be added to stated capital: $[amount ]
12.9Quorum at Shareholders’ meetings:
The holders of a majority of the shares entitled to vote at a meeting, whether present in person or represented by proxy (standard)
Other [______]
12.10Notice of Shareholders’ meetings:
Not less than 10 days, not more than 50/60 days (OBCA s. 96(1); (CBCA s. 135(1) (standard))
Other [______]
12.11Does Chairman have a casting vote?
Yes[______]
No (standard) [______]
13.AUDIT INFORMATION
13.1Name and address of:12
Auditors
Accountants
[______]
[______]
Contact: [______]Telephone No. [___]
Facsimile No. [______]E-mail add. [______]
13.2Financial year end: [_____]
14.BANKING
14.1Bank and branch (include address and name of contact):
[______]
Contact: [______]Telephone No. [___]
Facsimile No. [______]E-mail add. [______]
14.2Signing officers for Corporation’s account. (Please note any monetary restrictions.)
[______]
15.EXECUTION OF DOCUMENTS
15.1Any one of the directors or officers
Other (specify)
[______]
[______]
16.BUSINESS NAME REGISTRATION
16.1List of business names to be registered (BNA s.2(1))
Name:______
Business address if different from registered office:
[______]
Activity carried on under business name (not more than 40 characters): [______]
Date of first use of name: [______]
Province of registration:13[______]
Name: [______]
Business address if different from registered office:
[______]
Activity carried on under business name (not more than 40 characters):
[______]
Date of first use of name: [______]
Province of registration: [______]
16.2Business Name Banking:
Bank (include address): [______]
Signing officers: [______]
17.EXTRA-PROVINCIAL REGISTRATIONS14
17.1Indicate where corporation is to be registered to carry on business:
Alberta
Northwest Territories
British Columbia
Ontario
Manitoba
Quebec
New Brunswick
Saskatchewan
Newfoundland and Labrador
Yukon
Nova Scotia
Prince Edward Island
Nunavut
17.2Name and address of registered attorney:
Miller Thomson LLP Agent
See attached
18.OTHER MATTERS
advice on creditor-proofing assets
lease or other occupancy arrangements
trade-mark or domain name registrations
securing accounts receivable
insurance
employment contracts or manuals
notification under the Investment Canada Act
securing shareholder loans
shareholder agreement / unanimous shareholder agreement
contribution or indemnity for guarantees of corporate obligations
sales contracts and commercial credit guarantees
form of purchase order
health, safety and environmental matters
incentive plans
exempt financings
19.BUSINESS REGISTRATIONS
19.1Indicate if any of the following are required:
Ontario: Vendor’s Permit
WSIB Registration
Employer Health Tax
Federal: Business Number Application
HST/GST Account
Payroll Account
Corporate Tax Account
Import/Export Account
Other:
20.GENERAL
20.1Where are the corporate records to be kept?
Miller Thomson LLP15
Client
20.2Do you wish a corporate seal?
[ ]Yes ]No
20.3List all related corporations and show the appropriate relationship and percentage of ownership from the following:
Ultimate Holding Corporation (UHC)
Holding Corporation (HC)
Wholly Owned (WO)
Partly Owned (0-50%) (PO)
Associate (51-100%) (A)
Independent (I)
Sister
Name of Corporation / Relationship / Percent Ownership / GIP20.4Group Name:
20.5Does the Corporation have its own General Counsel?
Yes
No
SCHEDULE A
CHECKLIST - SHARE PROVISIONS (if applicable)
Maximum Number to be issued - if applicable / Cumulative Dividends- rate
- priority
- frequency / Non-cumulative Dividend
- rate
- priority
- frequency / Redemption Price / Retraction Price / Participation on wind-up
- priority
- amount / Voting/
Non-voting / Convertible into ______
Shares
Common
Preferred
SCHEDULE B
Accredited Investor means
(a)a bank listed in Schedule I or II of the Bank Act (Canada), or an authorized foreign bank listed in Schedule III of that Act;
(b)the Business Development Bank incorporated under the Business Development Bank of Canada Act (Canada);
(c)a loan corporation or trust corporation registered under the Loan and Trust Corporations Act or under the Trust and Loan Companies Act (Canada), or under comparable legislation in any other jurisdiction;
(d)a co-operative credit society, credit union central, federation of caisses populaires, credit union or league, or regional caisse populaire, or an association under the Cooperative Credit Associations Act (Canada), in each case, located in Canada;
(e)a company licensed to do business as an insurance company in any jurisdiction;
(f)a subsidiary of any company referred to in paragraph (a), (b), (c), (d) or (e), where the company owns all of the voting shares of the subsidiary;
(g)a person or company registered under the Actor securities legislation in another jurisdiction as an adviser or dealer, other than a limited market dealer;
(h)the government of Canada or of any jurisdiction, or any crown corporation, instrumentality or agency of a Canadian federal, provincial or territorial government;
(i)any Canadian municipality or any Canadian provincial or territorial capital city;
(j)any national, federal, state, provincial, territorial or municipal government of or in any foreign jurisdiction, or any instrumentality or agency thereof;
(k)a pension fund that is regulated by either the Office of the Superintendent of Financial Institutions (Canada) or a provincial pension commission or similar regulatory authority;
(l)a registered charity under the Income Tax Act (Canada);
(m)an individual who beneficially owns, or who together with a spouse beneficially own, financial assets having an aggregate realizable value that, before taxes but net of any related liabilities, exceeds $1,000,000;
(n)an individual whose net income before taxes exceeded $200,000 in each of the two most recent years or whose net income before taxes combined with that of a spouse exceeded $300,000 in each of those years and who, in either case, has a reasonable expectation of exceeding the same net income level in the current year;
(o)an individual who has been granted registration under the Act or securities legislation in another jurisdiction as a representative of a person or company referred to in paragraph (g), whether or not the individual’s registration is still in effect;
(p)a promoter of the issuer or an affiliated entity of a promoter of the issuer;
(q)a spouse, parent, grandparent or child of an officer, director or promoter of the issuer;
(r)a person or company that, in relation to the issuer, is an affiliated entity or a person or company referred to in clause (c) of the definition of distribution in subsection 1(1) of the Act;
(s)an issuer that is acquiring securities of its own issue;
(t)a company, limited partnership, limited liability partnership, trust or estate, other than a mutual fund or non-redeemable investment fund, that had net assets of at least $5,000,000 as reflected in its most recently prepared financial statements;
(u)a person or company that is recognized by the Commission as an accredited investor;
(v)a mutual fund or non-redeemable investment fund that, in Ontario, distributes its securities only to persons or companies that are accredited investors;
(w)a mutual fund or non-redeemable investment fund that, in Ontario, distributes its securities under a prospectus for which a receipt has been granted by the Director;
(x)a managed account if it is acquiring a security that is not a security of a mutual fund or non-redeemable investment fund;
(y)an account that is fully managed by a trust corporation registered under the Loan and Trust Corporations Act ;
(z)an entity organized outside of Canada that is analogous to any of the entities referred to in paragraphs (a) through (g) and paragraph (k) in form and function; and
(aa)a person or company in respect of which all of the owners of interests, direct or indirect, legal or beneficial, are persons or companies that are accredited investors.
Exemption for a Trade to an Accredited Investor
Section 53 of the Act does not apply to a trade in a security that is a distribution if the purchaser is an accredited investor and purchases as principal.
1French name required if the Corporation will be operating in Quebec.
2Please give street & number or R.R. #, municipality and postal code. OBCA - must be in Ontario. CBCA -province in Canada
3Resident Canadian is defined as:
CBCA
i.a Canadian citizen ordinarily resident in Canada;
ii.a Canadian citizen not ordinarily resident in Canada who is a member of a prescribed class of person; or
iii.a permanent resident within the meaning of the Immigration and Refugee Protection Act (Canada), and ordinarily resident in Canada, except a permanent resident who has been ordinarily resident in Canada for more than one year after the time at which they first became eligible to apply for Canadian citizenship.
OBCA
i.a Canadian citizen ordinarily resident in Canada;
ii.a Canadian citizen not ordinarily resident in Canada who is a member of a prescribed class of persons; or
iii.a permanent resident within the meaning of the Immigration and Refugee Protection Act (Canada) and ordinarily resident in Canada.
4(a)the approval of the directors of the Corporation expressed by a resolution passed by the board of directors of the Corporation at a meeting of the directors or by an instrument or instruments in writing signed by a majority of the directors; or
(b)the approval of the holders of a majority of the voting shares of the Corporation for the time being outstanding expressed by a resolution passed at a meeting of shareholders or by an instrument or instruments in writing signed by the holders of a majority of such shares.
5OBCA 118(3) - Directors to be resident Canadians - A majority of the directors of every corporation other than a non-resident corporation shall be resident Canadians but where a corporation has only one or two directors, that director or one of the two directors, as the case may be, shall be a resident Canadian.
CBCA 105(3) - Residency - At least 25% must be resident Canadian except if less than 4 at least 1 must be resident Canadian.
CBCA 105(4) - Exception for holding corporation - Notwithstanding subsection (3), not more than one-third of the directors of a holding corporation need be resident Canadians if the holding corporation earns in Canada directly or through its subsidiaries less than 5% of the gross revenues of the holding corporation and all of its subsidiary bodies corporate together as shown in:
(a)the most recent consolidated financial statements of the holding corporation referred to in section 157; or
(b)the most recent financial statements of the holding corporation and its subsidiary bodies corporate as at the end of the last completed year of the holding corporation.
61.Management approval must be obtained for a Miller Thomson LLP lawyer to act as a director.
2.Indemnities are automatically prepared for all office directors.
7None of the officers need be a director (OBCA s. 133, CBCA s. 121).
8Must be director and resident Canadian, OBCA s.127(1), CBCA s.115(1)
9In order to issue securities in reliance on the “private issuer exemption”:
a)If there is a beneficial security holder that is not resident in Ontario, the standard provisions in 7.1 hereof must be reviewed to ensure compliance with applicable securities laws.
b)Except for a distribution to an accredited investor, selling or promotional expenses can be paid in connection with the issuance to a director, officer, founder, or control person of the private issuer.
10To satisfy the Corporation’s due diligence obligations, the Corporation will require any “accredited investor” to certify as to its status.
11To satisfy the Corporation’s due diligence obligations, the Corporation will require any such person to certify as to beneficial ownership of securities.
12OBCA s. 148(1) “Exemption from Audit requirements - In respect of a financial year of a corporation, the corporation is exempt from the requirements of this Part regarding the appointment and duties of an auditor.
(a)where:
(i)the corporation is not an offering corporation; and
(ii)all of the shareholders of the corporation consent thereto in writing in respect of that year.”
CBCA also allows all shareholders of a non-distributing corporation to waive the audit requirement on an annual basis.
13Extra-provincial registrations are generally required in the provinces and territories prior to registering a business name.
14Federal corporations are not necessarily exempt from the requirement to obtain an extra-provincial registration or licence.
15Our standard report letter advises client that annual resolutions are automatically prepared annually.