Structuring Your Company’s Share Provisions: Involve Your Lawyer and Accountant
One of the key considerations when incorporating a new company is how to structure the share provisions in the articles of incorporation. These provisions will dictate the number of shares the corporation can have (i.e., authorized capital), the different types or “classes” of shares (e.g., common, special, preferred, etc.), and the share attributes attaching to each class of shares (e.g., the right to vote, to receive dividends, to receive the remaining property upon the corporation’s dissolution, liquidation or winding-up, etc.). Because the decision to create a corporation or amend one’s existing share provisions is typically driven and influenced by tax considerations, it is always recommended to consult your accountant before having your lawyer draft such share provisions. In addition to complying with the governing corporate laws surrounding share structures for private corporations, you will want to ensure they are prepared in such a way that will allow you to take advantage of possible tax incentives that may be available to you based on advice from your accountant or other tax professional.
The right to vote, to receive dividends and to receive the remaining property upon the corporation’s liquidation, dissolution or winding-up are share attributes that must be attached to at least one class of shares, although all such rights need not be attached to the same class. Persons holding shares with the right to vote can vote at meetings of shareholders on matters such as the election of the board of directors and other corporate changes. Voting shareholders hold the most power and influence in the corporation, but different share classes can have different voting restrictions or privileges. If the shares you hold have the right to receive dividends (i.e., profit paid out from the corporation), when the corporation’s board of directors declares a dividend, you would be entitled to receive it. Within the share provisions, you could limit the amount of dividend payable as well as the priority of dividend distribution between persons holding different classes of shares. If there are preferred shares for example, shareholders in this class will usually have priority to dividends over shareholders of other classes of shares. Your shares could also grant you entitlement to the remaining property of the corporation upon its dissolution (i.e., upon it ceasing to exist), liquidation (e.g., upon its bankruptcy), or winding-up (e.g., upon the selling of its assets to pay off creditors), which again may be subject to the priority rights granted on other share classes.
There are also many more rights, conditions, privileges and restrictions that can be inserted into the share provisions, especially when there are multiple types of share classes, like special and preferred shares. Some of these include rights related to redemption/retraction, price adjustments, purchase for cancellation, etc.
Depending on your goal(s) for your business and use of your corporation, there are many creative ways to structure the share provisions. For instance, if your objective is to income split with a spouse and two children, then the corporation could have one class of common shares and Class A, B and C non-voting, redeemable shares (i.e., where the corporation is able to buy the shares back at a future date at a certain price), with the Class A shares going to the spouse, the Class B shares going to the first child and the Class C shares going to the second child. With this share structure and share issuance, a portion of the corporation’s earnings can be paid to your spouse (who may be in a lower tax bracket) via payment of a dividend on the Class A shares held by that spouse. In a similar manner, dividends can be declared and paid to the children holding the Class B and C shares – this is called “dividend sprinkling” and may be subject to “kiddie tax” rules in the Income Tax Act, which is why a consultation with your accountant is usually necessary. Other common objectives that require careful drafting of the share provisions include estate freezes, rolling over assets into the corporation on a tax-deferred basis, and multiplying the capital gains exemption.
If you are thinking of forming a corporation or amending the share provisions in your current corporation to achieve some tax or succession-planning goal, then your first step is to discuss such thoughts with your accountant. After obtaining his or her tax guidance and instruction, your corporate lawyer is the recommended professional to draft your corporation’s share provisions so that they are in accordance with applicable corporate laws and amenable to accommodating such goals.