CERTIFIED SPECIALIST PROGRAM CORPORATE & COMMERCIAL LAW DEVELOPMENTAL PHASES AND LEARNING CRITERIA

Transcription

1 CERTIFIED SPECIALIST PROGRAM CORPORATE & COMMERCIAL LAW DEVELOPMENTAL PHASES AND LEARNING CRITERIA Some of the knowledge and skills criteria in the intermediate and advanced developmental phases relate specifically to particular areas of corporate and commercial law. If a licensee s practice does not include a particular area of corporate and commercial law, the licensee may elect not to acquire the knowledge and skills listed in the intermediate and advanced phases relating to that area. 1. CORPORATE AND COMMERCIAL ESSENTIAL a) Knowledge Working knowledge of basic corporate and commercial legislation including the Ontario Business Corporations Act and regulations (OBCA), Canada Business Corporations Act and regulations (CBCA), Personal Property Security Act and regulations (PPSA), Securities Act and regulations, Partnerships Act, Limited Partnerships Act, Business Names Act, Corporations Information Act, Bulk Sales Act and Personal Information Protection and Electronic Documents Act (PIPEDA). Familiarity with: alternative business structures including sole proprietor, partnership, limited partnership, for-profit corporation, not-for-profit corporation capital structures for a corporation including rights and restrictions associated with common, preference or special shares rights of dissent of shareholders in corporate statutes advantages of different jurisdictions of incorporation merger and acquisition strategies (share vs. assets, take-over bids, amalgamations) basic tax implications for different business entities directors and officers liability debtor/creditor rights bankruptcy and insolvency proceedings including familiarity with the Bankruptcy and Insolvency Act (BIA) and Companies Creditors Arrangement Act (CCAA) Competition Act and Investment Canada Act 1

2 the relationship between the Bank Act (Canada) and the Personal Property Security Act Landlord and Tenant Act, Commercial Tenancy Act, Registry Act and Land Titles Act intellectual property rights (copyright, trademarks, patents) employment rights including severance and notice requirements under the Employment Standards Act and the Canada Labour Code environmental protection legislation routine filing requirements for business entities due diligence process in transactions thorough understanding of boilerplate provisions contained in business contracts including common law implications legal opinions including implications of assumptions, exclusions and due diligence required to support opinion. b) Skills draft articles of incorporation complete original organization of company including by-laws and resolutions and form 1 filing draft shareholders agreement draft partnership agreement review and summarize PPSA search results draft PPSA registration statement carry out due diligence pursuant to a merger, acquisition or financing including completing a due diligence checklist, preparing requisitions, follow-up questions and arranging for required corporate searches prepare closing agenda for a transaction assist in preparing notice of shareholders meeting and related resolutions and chairman s agenda assist in drafting annual information form 2

3 draft non-disclosure agreement draft non-competition agreement draft employment agreement draft articles of dissolution and related documents including obtaining consent from ministry, general conveyance of assets etc review various business contracts and comment assist in negotiation of a merger or acquisition assist in negotiation of a loan transaction draft or negotiate basic commitment letter for loan transaction draft loan agreement and related security agreement and attend to PPSA registration draft or negotiate basic share purchase agreement and asset purchase agreement draft or negotiate distribution or license agreement draft or negotiate offer to lease and lease prepare draft minutes of meetings of directors, shareholders or committees of the Board of Directors draft term sheet or engagement letter for issuance of securities assist in drafting agency or underwriting agreement in respect of financings assist in drafting offering memorandum or prospectus assist in drafting offering circular for a take-over bid or issuer bid and insider bid prepare and file material change report advise on insider reporting requirements prepare and file insider report advise on continuous disclosure requirements assist in drafting legal opinion. 3

4 INTERMEDIATE a) Knowledge Advanced knowledge of the OBCA, CBCA, PPSA and Securities Act including policies statements and orders Familiarity with: $ Bank Act, Extra-Provincial Corporations Act, Arbitrations Act, Powers of Attorney Act, Money Laundering Act and Electronic Commerce Act $ conflict of laws and governing law issues. Working knowledge of PIPEDA contractual precedents for a wide range of business agreements capital structures including familiarity with various rights and privileges attaching to different classes or series of shares relevant Income Tax Act provisions and requirements (including tax rollovers, tax certificates, Canadian residency requirements, Canadian Controlled Private Corporation requirements, withholding tax, Part 6.1 tax on dividends, etc.) and implications relating to dividends vs. interest payments and parent/subsidiary relationships bank financing and other secured lending options such as vendor financing structuring security for secured loans private placements including debt and equity financing, warrants, options, subscription agreements, agency agreements IPO process from due diligence to obtaining final receipt from OSC guarantees and indemnities take-over bid process from prospective of bidder and target reorganizations including CCAA and BIA implications and other debtor/creditor rights corporate governance obligations including legislated and common law fiduciary obligations of directors and officers, requirements for board committees, and implications of Sarbanes-Oxley Act and Canadian equivalent 4

5 financial assistance provisions under corporate statutes employee and executive option plans, pension plans or other company incentive plans termination and severance legislation pursuant to Employment Standards Act and Canada Labour Code including understanding of group terminations and other downsizing strategies dispute resolution alternatives (mediation, arbitration, litigation) case law regarding contracts, corporations, mergers and acquisitions, financing, directors and officers obligations continuous disclosure requirements and timely disclosure obligations. b) Skills complete asset and share purchase with little or no supervision organize, supervise and direct due diligence in transaction strong ability to draft and negotiate relevant provisions in a wide variety of business agreements based on client instructions advise client on implications of provisions in shareholder agreement including put/call, shotgun, insurance, family law and default provisions advise client with respect to reorganizations plans advise client on requirements of Competition Act and Investment Canada Act prepare timetable for annual or special meeting of shareholders and draft form of proxy, notice of meeting, management information circular, annual information form, management discussion and analysis, etc. and issue requisite notices and filings advise directors and officers of liability issues and corporate governance requirements and insurance options advise shareholders or company on shareholders rights and remedies advise client on IPO process, draft prospectus, negotiate with OSC to address issues raised and obtain final receipt draft offering memorandum advise client on available securities exemptions for raising capital 5

6 advise lender or borrower in secured loan transaction, draft or negotiate loan agreement, security agreement and carry out or respond to required searches and filings draft guarantee or indemnity agreement assist in hearings before Ontario Securities Commission, IDA, Alcohol and Gaming Commission or other regulatory body prepare stock option plan for non-issuer corporation or reporting issuer and obtain necessary regulatory approvals draft broker warrant/compensation option, broker/agency agreement, subscription agreement draft escrow agreement draft trust indenture, lock-up or support agreement prepare shareholder s rights plan advise client on related party transactions draft software distribution and maintenance agreement and related escrow agreement draft legal opinion draft executive employment agreement. ADVANCED a) Knowledge Advanced knowledge of: contractual precedents for business related agreements including strategies for successfully negotiating representations and warranties in complex transaction board of director requirements including committees, composition, advisors and obligations particularly as they relate to various stakeholders such as shareholders, creditors, employees, etc. directors and officers liability under legislation including Income Tax Act, Excise Tax Act, Retail Sales Tax Act, OBCA/CBCA, Employment Standards Act/Canada Labour Code, provincial and federal environmental protection, and under common law such as wrongful trading, fiduciary duties to creditors, related company transactions directors and officers insurance provisions and alternatives 6

7 b) Skills financing options and strategies Bank Act and loan and trust legislation case law regarding contracts, corporations, commercial and securities matters including business judgment rule, oppression remedy, sale of significant blocks of shares, board s role in mergers, acquisitions or take-over bids, corporate disclosure bankruptcy and insolvency legislation and reorganizations, including CCAA options and proceedings continuous disclosure requirements and timely disclosure obligations securities requirements for other Canadian provinces and exchanges and other jurisdictions outside Canada relating to cross-border financings requirements for other Canadian provinces and non-canadian jurisdictions relating to cross-border secured lending transactions IDA, OSC, TSE rules and regulations mergers and acquisitions options and strategies working knowledge of investigative provisions relating to the Ontario Securities Commission, Market Regulatory Authority, OBCA/CBCA and other related legislation draft relevant provisions in complex business agreements advise on mergers and acquisitions strategies lead complex transaction including obtaining all required non-corporate legal advice advise company on financing options and strategies advise underwriter or agent on alternatives for raising capital through private placement, equity or debt financing or IPO and successfully complete transaction advise board of directors, various committees of the board or special committee in respect of major transaction, including fiduciary obligations of board members advise client on continuous disclosure requirements (i.e. contents of press releases, Ontario Securities Commission, Toronto Stock Exchange, etc.) advise purchaser or seller in cross-border merger or acquisition advise shareholder in sale of shares for a controlled block 7

8 draft, review and finalize opinions in complex transactions advise clients on corporate governance issues 2. SUBSTANTIAL CONTRIBUTION, DEVELOPMENT OF CORPORATE AND COMMERCIAL LAW ESSENTIAL a) Skills assist in drafting position paper regarding proposed corporate or securities legislation or instruments draft and/or present conference paper or speech on basic issues in corporate and commercial law INTERMEDIATE a) Skills assist in drafting proposed legislation or instruments lecture at accredited post secondary institution with responsibility for at least one full course in corporate, commercial or securities law, with responsibilities in research and publication regularly present papers and speeches on basic issues in corporate and commercial law present at least one paper or speech on advanced issues in corporate, commercial or securities law participate in continuing legal education programs for junior lawyers in law firm or organization. ADVANCED a) Skills assist in drafting, or provide advice with respect to, corporate, commercial or securities legislation or instruments teach corporate, commercial or securities law at an accredited post secondary institution, including original research and publication create and participate in continuing legal education programs for junior licensees of law firm or organization 8

9 regularly present papers and speeches on a full range of issues in corporate, commercial or securities law, including original research and chair conferences on corporate/business matters publish in industry and academic journals and text books 9