Welcome to the National Tribal Justice Resource Center's Tribal Codes and Constitutions
Return to the Main Tribal Codes and Constitutions Page
CORPORATIONS
Section 1. Short Title
This Title shall be known
and may be cited as the "Absentee Shawnee Corporation Act of 1986"
Section 2. Definitions
As used in this Title,
unless the context otherwise requires, the term:
(a)
"Corporation" or "Domestic Corporation" means a corporation
for profit subject to the provisions of this Act, except a foreign corporation.
(b) "Foreign
Corporation" means a corporation for profit organized under laws other than
the laws of this Tribe for a purpose or purposes for which a corporation may be
organized under this Act.
(c) "Articles of
Incorporation" means the original or restated articles of incorporation or
articles of consolidation and all amendments thereto including articles of
merger.
(d) "Shares" means the units into which the proprietary interests in a
corporation are divided.
(e)
"Subscriber" means one who subscribes for shares in a corporation,
whether before or after incorporation.
(f)
"Shareholder" means one who is a holder of record of shares in a
corporation. If the articles of incorporation or the by-laws so provide, the
board of directors may adopt by resolution a procedure whereby a shareholder of
the corporation may certify in writing to the corporation that all or a portion
of the shares registered in the name of such shareholder are held for the
account of a specified person or persons. The resolution shall set forth:
(1) The classification
of shareholder who may certify
(2) The purpose or
purposes for which the certification may be made.
(3) The form of
certification and information to be contained therein.
(4) If the
certification is with respect to a record date or closing of the stock
transfer books, the time afterthe record within which the certification must
be received by the corporation, and,
(5) Such other
provisions with respect to the procedure as are deemed necessary or desirable.
Upon receipt by the corporation of a certification complying with the
procedure,the persons specified in the certification shall be deemed, for the
purpose or purposes set forth in the certification, to be the holders of
record of the number of shares specified in place of the shareholder making
the certification.
(g) "Authorized
Shares" means the shares of all classes which the corporation is authorized
to issue.
(h) "Treasury
Shares" means shares of a corporation which have been issued, have been
subsequently acquired by and belong to the corporation, and have not, either by
reason of the acquisition or thereafter, been cancelled or restored to the
status of authorized but unissued shares. Treasury shares shall be deemed to be
"issued" shares, but not "outstanding" shares.
(i) "Net
Assets" means the amount by which the total assets of a corporation exceed
the total debts of a corporation.
(j) "Stated
Capital" means, at any particular time, the sum of:
(1) The par value of
all shares of the corporation having a par value that have been issued.
(2) The amount of the
consideration received by the corporation for all shares of the corporation
without par value that have been issued, except such part of the consideration
therefor as may have been allocated to capital surplus in a manner permitted
by law, and,
(3) Such amounts not
included in clauses (1) and (2) of this paragraph as have been transferred to
stated capital of the corporation, whether upon the issue of shares as a share
dividend or otherwise, minus all reductions from such sum as have been
effected in a manner permitted by law. Irrespective of the manner of
designation thereof by the laws under which a foreign corporation is
organized, the stated capital of a foreign corporation shall be determined on
the same basis and in the same manner as the stated capital of a domestic
corporation, for the purpose of computing fees, franchise taxes and other
charges imposed by this Act.
(k) "Surplus"
means the excess of the net assets of a corporation over its stated capital.
(l) "Earned
Surplus" means the portion of the surplus of a corporation equal to the
balance of its net profits, income, gains and losses from the date of
incorporation, or from the latest date when a deficit was eliminated by an
application of its capital surplus or stated capital or otherwise, after
deducting subsequent distributions to shareholders and transfers to stated
capital and capital surplus to the extent such distributions and transfers are
made out of earned surplus. Earned surplus shall include also any portion of
surplus allocated to earned surplus in mergers, consolidations or acquisitions
of all or substantially all of the outstanding shares or of the property and
assets of another corporation, domestic or foreign.
(m) "Capital
Surplus" means the entire surplus of a corporation other than its earned
surplus.
(n) "Insolvent"
means inability of a corporation to pay its debts as they become due in the
usual course of its business.
(o) "Employee"
includes officers but not directors. A director may accept duties which make him
also an employee.
(p) "Secretary"
means the Secretary of the Absentee Shawnee Tribe of Oklahoma.
(q) "Court" or
"Tribal Court" means the Courts of the Absentee Shawnee Tribe of
Oklahoma.
(r)
"Jurisdiction" means Indian country, as defined in 18 U.S.C. 1151, of
the Absentee Shawnee Tribe, lying within the following described area, to wit:
Beginning at a point on the right bank of the north fork of the Canadian River,
in section twenty-one, of township eleven north, range five east, where the
western boundary line of the Seminole Reservation strikes said river; thence
south with said boundary line to the left bank of the Canadian River; thence up
said river along the left bank therof, to a point on said left bank, in the
northeast quarter of section thirty-six, township six north, range one west,
thirty-nine chains and eighty-two links (by the meanders of the river west),
from the point where the Indian meridian intersects said river, or thirty-eight
chains and fifty-two links due west from said Indian meridian; thence north as
run by O.T. Morrill, under his contract of September third, eighteen hundred and
seventy-two, to a point on the right bank of the north fork of the Canadian
River; thence down said rjver, along the right bank thereof, to the place of
beginning, comprising the following, viz:
Fractional township five
north, ranges one, two, three, four, and five east, north of the Canadian River.
Fractional township six north, ranges one, three, four, and five east, north of
the Canadian River. Township six north, range two east.
Townships seven, eight,
and nine, ranges one, two, three, and four east. Fractional townships seven,
eight, and nine north, range five east.
Townships ten and eleven
north, range one east. Fractional township ten north, ranges two, three, and
four east, south of the north fork of the Canadian River. Fractional township
ten north, range five east. Fractional township eleven north, ranges two, three,
four, and five east, south of the north fork of the Canadian River. Fractional
township twelve north, ranges one and two east, south of North Fork of the
Canadian River.
Also that portion of
sections one, twelve, thirteen, twenty-four, and twenty-five, and section
thirty-six, north of the Canadian River in township six north, range one west,
lying east of the western boundary line of the said Pottawatomi Reservation as
shown by the Morrill survey, and that portions of sections one, twelve,
thirteen, twenty-four, twenty-five, and thirty-six, in townships seven, eight,
nine, ten, and eleven north, range one west, lying east of the western boundary
line aforesaid, and that portion of sections one and twelve south of the north
fork of the Canadian River, and sections thirteen, twenty-four, twenty-five, and
thirty-six, in township twelve north, range one west, lying east of the. western
boundary line aforesaid, containing an area of five hundred and seventy-five
thousand eight hundred and seventy and forty- two one hundredths, acres of land.
(s) "Attorney
General" shall mean the Attorney General of the Absentee Shawnee Tribe.
(t)
"Reservation" shall mean all lands within the exterior boundaries of
the Absentee Shawnee Indian Reservation described as follows, to-wit: Beginning
at a point on the right bank of the north fork of the Canadian River, in section
twenty-one, of township eleven north, range five east, where the western
boundary line of the Seminole Reservation strikes said river; thence south with
said boundary line to the left bank of the Canadian River; thence up said river
along the left bank therof, to a point on said left bank, in the northeast
quarter of section thirty-six, township six north, range one west, thirty-nine
chains and eighty-two links (by the meanders of the river west), from the point
where the Indian meridian intersects said river, or thirty-eight chains and
fifty-two links due west from said Indian meridian; thence north as run by O.T.
Morrill, under his contract of September third, eighteen hundred and
seventy-two, to a point on the right bank of the north fork of the Canadian
River; thence down said river, along the right bank thereof, to the place of
beginning, comprising the following, viz:
Fractional township five
north, ranges one, two, three, four, and five east, north of the Canadian River.
Fractional township six north, ranges one, three, four, and five east, north of
the Canadian River. Township six north, range two east.
Townships seven, eight,
and nine, ranges one, two, three, and four east. Fractional townships seven,
eight, and nine north, range five east.
Townships ten and eleven
north, range one east. Fractional township ten north, ranges two, three, and
four east, south of the north fork of the Canadian River. Fractional township
ten north, range five east. Fractional township eleven north, ranges two, three,
four, and five east, south of the north fork of the Canadian River. Fractional
township twelve north, ranges one and two east, south of North Fork of the
Canadian River.
Also that portion of
sections one, twelve, thirteen, twenty-four, and twenty-five, and section
thirty-six, north of the Canadian River in township six north, range one west,
lying east of the western boundary line of the said Pottawatomi Reservation as
shown by the Morrill survey, and that portions of sections one, twelve,
thirteen, twenty-four, twenty-five, and thirty-six, in townships seven, eight,
nine, ten, and eleven north, range one west, lying east of the western boundary
line aforesaid, and that portion of sections one and twelve south of the north
fork of the Canadian River, and sections thirteen, twenty-four, twenty-five, and
thirty-six, in township twelve north, range one west, lying east of the western
boundary line aforesaid, containing an area of five hundred and seventy-five
thousand eight hundred and seventy and forty- two one hundredths, acres of land.
CHAPTER ONE
ILSUBSTANTIVE PROVISIONS
Section III.101. Purposes
A Corporation may be
organized under this Title for any lawful purpose or purposes.
Section IV.102. General Powers
Each corporation shall
have power:
(a) To have perpetual
succession by its corporate name unless a limited period of duration is stated
in its articles of incorporation.
(b) To sue and be sued,
complain and defend, in its corporate name.
(c) To have a corporate
seal which may be altered at pleasure, and to use the same by causing it, or a
facsimile thereof, to be impressed or affixed or in any other manner reproduced.
(d) To purchase, take,
receive, lease, or otherwise acquire, own, hold, improve, use and otherwise deal
in and with, real or personal property, or any interest therein, wherever
situated, provided, that title to any real property acquired by such corporation
within the exterior boundaries of the Absentee Shawnee Indian Reservation shall
be taken in the name of the United States of America in trust for the Absentee
Shawnee Tribe of Oklahoma. Such acquisition shall be made with the prior notice
to the Executive Committee. At the time of such acquisition, the Absentee
Shawnee Tribe of Oklahoma shall lease such real property to the Corporation for
business purposes for a period of twenty-five (25) years with an option to renew
such lease for an additional period of twenty-five (25) years for such other
maximum period as may be authorized by federal law. The consideration received
for such lease shall be the transfer of title to the Tribe. The consideration
for exercising the option f or the additional twenty-five (25) year term shall
be One Dollar ($1.00). In the alternative, or in addition to such leasehold, the
corporation may receive at its request an assignment from the tribe of the right
to the use of such land which assignment may be perpetual and shall carry the
power to sell, mortgage, convey, pledge, lease, exchange, transfer, or otherwise
dispose of such assignment pursuant to tribal laws. The rights created by such
assignment shall be enforceable in the Tribal Court against the tribe
notwithstanding the defense of sovereign immunity, and the assignment shall be
considered a contract and property right which may not be abridged by the tribe
without just compensation.
(e) To sell, convey,
mortgage, pledge, lease, exchange, transfer and otherwise dispose of all or any
part of its property and assets.
(f) To lend money and use
its credit to assist its employees.
(g) To purchase, take,
receive, subscribe for, or otherwise acquire, own, bold, vote, use, employ,
sell, mortgage, lend, pledge, or otherwise dispose of, and otherwise use and
deal in and with shares or other interests in, or obligations of other domestic
or foreign corporations, associations, partnerships or individuals, or direct or
indirect obligations of the United States or of any other government, state,
territory, governmental district or municipality or of any instrumentality
thereof.
(h) To make contracts and
guarantees and incur liabilities, borrow money at such rates of interest as the
corporation may determine, issue its notes, bonds, and other obligations, and
secure any of its obligations by mortgages or pledge of all or any of its
property, franchises or investments.
(i) To conduct its
business, carry on its Operations and have offices and exercise the powers
granted by this Act, within or without this jurisdiction.
(j) To lend money for its
corporate purposes, invest and reinvest its funds, and take and hold real and
personal property as security for the payment of funds so loaned or invested.
(k) To elect or appoint
officers and agents of the corporation, and define their duties and fix their
compensation.
(l) To make and alter
by-laws, not inconsistent with its articles of incorporation or with the laws of
the Absentee Shawnee Tribe for the administration and regulation of the affairs
of the corporation.
(m) To make donations for
the public welfare or for charitable, scientific or education purposes.
(n) To transact any
lawful business which the board of directors shall find will be in aid of
governmental policy.
(o) To pay pensions and
establish pension plans, pension trusts, profit sharing plans, stock bonus
plans, stock option plans and other incentive plans for any or all of its
directors, officers and employees.
(p) To be a promoter,
partner, members, associate, or manager of any partnership, joint venture, trust
or other enterprise.
(q) To have and exercise
all powers necessary or convenient to effect its purpose.
Section V.103. Indemnification of Officers, Directors, Emnloyees and
Agents
(a) A corporation shall
have power to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nob contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) A corporation shall
have power to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
corporation unless and only to the extent that the court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which such court shall
deem proper.
(c) To the extent that a
director, officer, employee or agent of a corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in
subsections (a) or (b), or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification
under subsections (a) or (b) (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
subsections (a) or (b). Such determination shall be made:
(1) By the board of
directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or
(2) If such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested directors so
directs by independent legal counsel in a written opinion, or
(3) By the
shareholders.
(e) Expenses Cincluding
attorneys' fees) incurred in defending a civil or criminal action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding as authorized in the manner provided in
subsection (d) upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the corporation as
authorized in this section.
(f) The indemnification
provided by this section shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under any by-law, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding office, and
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(g) A corporation shall
have power to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him in any
such capacity or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of this section.
Section VI.104. Right of Corporation to Acquire and Dispose of Its Own
Shares
A corporation shall have
the right to purchase, take, receive, or otherwise acquire, hold, own, pledge,
transfer or otherwise dispose of its own shares, but purchases of its own
shares, whether direct or indirect, shall be made only to the extent of
unreserved and unrestricted earned surplus available therefor, and, if the
articles of incorporation so permit or with the affirmative vote of the holders
of a majority of all shares entitled to vote thereon, to the extent of
unreserved and unrestricted capital surplus available therefor.
To the extent that earned
surplus or capital surplus is used as the measure of the corporation's right to
purchase its own shares, such surplus shall be restricted so long as such shares
are held as treasury shares, and upon the disposition or cancellation of any
such shares the restriction shall be removed to that extent.
Notwithstanding the
foregoing limitation, a corporation may purchase or otherwise acquire its own
shares for the purpose of:
(a) Eliminating
fractional shares.
(b) Collecting or
compromising indebtedness to the corporation.
(c) Paying dissenting
shareholders entitled to payment for their shares under the provisions of this
Title.
(d) Effecting, subject to
the other provisions of this Title, the retirement of its redeemable shares by
redemption or by purchase at not to exceed the redemption price. No purchase of
or payment for its own shares shall be made at a time when the corporation is
insolvent or when such purchase or payment would make it insolvent.
Section VII.105. Defense of Ultra Vires
No act of a corporation
and no conveyance or transfer of real or personal property to or by a
corporation shall be invalid by reason of the fact that the corporation was
without capacity or power to do such act or to make or receive such conveyance
or transfer, but such lack of capacity or power may be asserted:
(a) In a proceeding by a
shareholder against the corporation to enjoin the doing of any act or the
transfer of real or personal property by or to the corporation. If the
unauthorized act or transfer sought to be enjoined is being, or is to be,
performed or made pursuant to a contract to which the corporation is a party,
the court may, if all of the parties to the contract are parties to the
proceeding and if it deems the same to be equitable, set aside and enjoin the
performance of such contract, and in so doing may allow to the corporation or to
the other parties to the contract, as the case may be, compensation for the loss
or damage sustained by either of them which may result from the action of the
court in setting aside and enjoining the performance of such contract, but
anticipated profits to be derived from the performance of the contract shall not
be awarded by the court as a loss or damage sustained.
(b) In a proceeding by
the corporation, whether acting directly or through a receiver, trustee, or
other legal representative, or through shareholders in a representative suit,
against the incumbent or former officers or directors of the corporation.
(c) In a proceeding by
the Attorney General as provided in this Title, to dissolve, the corporation, or
in a proceeding by the Attorney General to enjoin the corporation from the
transaction of unauthorized business.
Section VIII.106. Corporate Names
(a) Shall contain the
word "corporation," "company," "incorporated," or
"limited," or shall contain an abbreviation of one of such wbrds.
(b) Shall not contain any
word of phrases which indicates or implies that it is organized for any purpose
other than one or more of the purposes contained in its articles of
incorporation.
(c) Shall not be the same
as, or deceptively similar to, the name of any domestic corporation existing
under the laws of this Tribe or any foreign corporation authorized to transact
business in this jurisdiction, or a name the exclusive right to which is, at the
time, reserved in the manner provided in this Title, or the name of a
corporation which has in effect a registration of its corporate name as provided
in this Title, except that this provision shall not apply if the applicant files
with the Secretary either of the following:
(1) The written consent
of such other corporation or holder of a reserved or registered name to use
the same or deceptively similar name and one or more words are added to make
such name distinguishable from such other name, or
(2) A certified copy of
a final decree of a court of competent jurisdiction establishing the prior
right of the applicant to the use of such name in this jurisdiction.
(d) Shall not be the same
as, or deceptively similar to, the name of any corporation organized,
domesticated, or reserved under the laws of the State of Oklahoma subject to the
exceptions (1) and (2) of subparagraph (c) of this Section.
A corporation with which
another corporation domestic or foreign, is merged, or which is formed by the
reorganization or consolidation of one or more domestic or foreign corporations
or upon a sale, lease or other disposition to or exchange with, a domestic
corporation of all or substantially all the assets of another corporation
domestic or foreign, including its name, may have the same name as that used in
this jurisdiction by any of such corporations if such other corporation was
organized under the laws of, or is authorized to transact business in, this
jurisdiction.
Section IX.107. Reserved Name
The exclusive right to
the use of a corporate name may be reserved by:
(a) Any person intending
to organize a corporation under this Title.
(b) Any domestic
corporation intending to change its name.
(c) Any foreign
corporation intending to make application for a certificate of authority to
transact business in this jurisdiction.
(d) Any foreign
corporation authorized to transact business in this jurisdiction and intending
to change its name.
(e) Any person intending
to organize a foreign corporation and intending to have such corporation make
application for a certificate of authority to transact business in this
jurisdiction.
The reservation shall be
made by filing with the Secretary an application to reserve a specified
corporate name, executed by the applicant. If the Secretary finds that the name
is available for corporate use, he shall reserve the name for the exclusive use
of the applicant for a period of one hundred and twenty days. The right to the
exclusive use of a specified corporate name so reserved may be transferred to
any person or corporation by filing in the office of the Secretary a notice of
such transfer, executed by. the applicant for whom the name was reserved, and
specifying the name and address of the transferee.
Section X.108. Registered Name
Any corporation organized
and existing under the laws of any state, Tribe, or territory of the United
States may register its corporate name under this Act, provided its corporate
name is not the same as, or deceptively similar to, the name of any domestic
corporation existing under the laws of the Absentee Shawnee Tribe, or the name
of any foreign corporation authorized to transact business in this jurisdiction,
or any corporate name reserved or registered under this Act.
Such registration shall
be made by:
(a) Filing with the
Secretary:
(1) An application for registration executed by the corporation by - an
officer thereof, setting forth the name of the corporation; the state, Tribe,
or territory under the laws of which it is incorporated, the date of its
incorporation, a statement that it is carrying on or doing business, and a
brief statement of the business in which it is engages, and,
(2) A certificate setting forth that such corporation is in good standing
under the laws of the state, Tribe, or territory wherein it is organized,
executed by the Secretary of State of such state, Tribe, or territory or by
such other official as may have custody of the records pertaining to
corporations, and,
(b) Paying to the
Secretary a registration fee in the amount of Five Dollars ($5.00), for each
month, or fraction thereof, between the date of filing such application and
December 31st of the calendar year in which such application is filed. Such
registration shall be effective until the close of the calendar year in which
the application for registration is filed.
Section XI.109. Renewal of Registered Name
A corporation which has
in effect a registration of its corporate name, may renew such registration from
year to year by annually filing an application for renewal setting forth the
facts required to be set forth in an original application for registration and a
certificate of good standing as required for the original registration and by
paying a fee of Twenty Five Dollars ($25.00). A renewal application may be filed
between the first day of October and the thirty-first day of December in each
year, and shall extend the registration for the following calender year.
Section XI.110. Registered Office and Registered Agent
Each corporation shall
have and continuously maintain within the Absentee Shawnee Reservation:
(a) A registered office
which may be, but need not be, the same as its place of business.
(b) A registered agent,
which agent may be either an individual resident of this reservation whose
business office is identical with such registered office, or a domestic
corporation or a foreign corporation authorized to transact business in this
jurisdiction having a business office identical with such registered office.
Section XIII.111. Change of Registered Office or Registered Agent
A corporation may change
its registered office or change its registered agent, or both, upon filing in
the office of the Secretary a statement setting forth:
(a) The name of the
corporation.
(b) The address of its
then registered office.
(c) If the address of its
registered office is to be changed, the address to which the registered office
is to be changed.
(d) The name of its then
registered agent.
(e) If its registered
agent is to be changed, the name and address of its successor registered agent.
(f) That the address of
its registered office and the address of the business office of its registered
agent, as changed, will be identical.
(g) That such change was
authorized by resolution duly adopted by its board of directors. Such statement
shall be executed by the corporation by its president, or vice president, and
verified by him, and delivered to the Secretary. If the Secretary finds that
such statement conforms to the provisions of this Act, he shall file such
statement in his office, and upon such filing the change of address of the
registered office, or the appointment of a new registered agent, or both, as the
case may be, shall become effective. Any registered agent of a corporation may
resign as such agent upon filing a written notice theteof, executed in
duplicate, with the Secretary, who shall forthwith mail a copy thereof to the
corporation at its registered office. The appointment of such agent shall
terminate upon the expiration of thirty days after receipt of such notice by the
Secretary. If a registered agent changes his or its business address to another
place within the reservation, he or it may change such address and the address
of the registered office of any corporation of which he or it is registered
agent by filing a statement as required above except that it need be signed only
by the registered agent and need not be responsive to (e) or (g) and must recite
that a copy of the statement has been mailed to the corporation.
Section XIV.112. Service of Process
The registered agent so
appointed by a corporation shall be an agent of such corporation upon whom any
process, notice or demand required or permitted by law to be served upon the
corporation may be served. Whenever a corporation shall fail to appoint or
maintain a registered agent within the reservation, or whenever its registered
agent cannot with reasonable diligence be found at the registered office, then
the Secretary shall be an agent of such corporation upon whom any such process,
notice, or demand may be served. Service on the Secretary of any such process,
notice or demand shall be made by delivering to and leaving with him, or with
any clerk or other tribal employee having charge of the corporation department
of his office, duplicate copies of such process, notice or demand. In the event
any such process, notice or demand is served on the Secretary, he shall
immediately cause one of the copies thereof to be mailed, addressed to the
corporation at its registered office. Any service so had on the Secretary shall
be returnable in not less than thirty days. The Secretary shall keep a record of
all processes, notices and demands served upon him under this section, and shall
record therein the time of such service and his action with reference thereto.
Nothing herein contained shall limit or affect the right to serve any process,
notice or demand required or permitted by law to be served upon a corporation in
any other manner now or hereafter permitted by law.
Section XV.113. Authorized Shares
Each corporation shall
have power to create and issue the number of shares stated in its articles of
incorporation. Such shares may be divided into one or more classes, any or all
of which classes may consist of shares with par value or shares without par
value, with such designations, preferences, limitations, and relative rights as
shall be stated in the articles of incorporation. The articles of incorporation
may limit or deny the voting rights of or provide special voting rights for the
shares of any class to the extent not inconsistent with the provisions of this
Title.' Without limiting the authority herein contained, a corporation, when so
provided in its articles of incorporation, may issue shares of preferred or
special classes:
(a) Subject to the right
of the corporation to redeem any of such shares at the price fixed by the
articles or incorporation for the redemption thereof.
(b) Entitling the holders
thereof to cumulative, noncumulative or partially cumulative dividends.
(c) Having preference
over any other class or classes of shares as to the payment of dividends.
(d) Having preference in
the assets of the corporation over any other class or classes of shares upon the
voluntary or involuntary liquidation of the corporation.
(e) Convertible into
shares of any other class or into shares of any series of the same or any other
class, except a class having prior or superior rights and preferences as to
dividends or distribution of assets upon liquidation, but shares without par
value shall not be converted into shares with par value unless that part of the
stated capital of the corporation represented by such shares without par value
is, at the time of conversion, at least equal to the aggregate par value of the
shares into which the shares without par value are to be converted or the amount
of such deficiency is transferred from surplus to stated capital.
Section XVI.114. Issuance of Shares of Preferred or Special Classes in
Series
(a) If the articles of
incorporation so provide, the shares of any preferred or special class may be
divided into and issued in series. If the shares of any such class are to be
issued in series, then each series shall be so designated as to distinguish the
shares thereof from the shares of all other series and classes. Any or all of
the series of any such class and the variations in the relative rights and
preferences as between different series may be fixed and determined by the
articles of incorporation, but all shares of the same class shall be identical
except as the following relative rights and preferences, as to which there may
be variations between different series:
(l) The rate of
dividend.
(2) Whether shares may
be redeemed and, if so, the redemption price and the terms and conditions of
redemption.
(3) The amount payable
upon shares in the event of voluntary and involuntary liquidation.
(4) Sinking fund
provisions, if any, for the redemption or purchase of shares.
(5) The terms and
conditions, if any, on which shares may be converted.
(6) Voting rights if
any.
(b) If the articles of
incorporation shall expressly vest authority in the board of directors, then, to
the extent that the articles of incorporation shall not have established series
and fixed and determined the variations in the relative rights and preferences
as between series, the board of directors shall have authority to divide any or
all of such classes into series and, within the limitations set forth in this
section and in the articles of incorporation, fix and determine the relative
rights and preferences of the shares of any series so established.
(c) In order for the
board of directors to establish a series, where authority so to do is contained
in the articles of incorporation, the board of directors shall adopt a
resolution setting forth the designation of the series and fixing and
determining the relative rights and preferences thereof, or so much thereof as
shall not be fixed and determined by the articles of incorporation. Prior to
the issue of any shares of a series established by resolution adopted by the
board of directors, the corporation shall file in the office of the Secretary a
statement setting forth:
(1) The name of the
corporation.
(2) A copy of the
resolution establishing and designating the series, and fixing and determining
the relative rights and preferences thereof.
(3) The date of
adoption of such resolution.
(4) That such
resolution was duly adopted by the board of directors.
(d) Such statement shall
be executed in duplicate by the corporation by its president or a vice president
and by its secretary or an assistant secretary, and verified by one of the
officers signing such statement, and shall be delivered to the Secretary. If the
Secretary finds that such statement - conforms to law, he shall, when all
franchise taxes and fees have been paid as in this Title prescribed:
(1) Endorse on each of
such duplicate originals the word "Filed," and the month, day, and
year of the filing thereof.
(2) File one of such
duplicate originals in his office.
(3) Return the other
duplicate original to this corporation or its representative.
(e) Upon the filing of
such statement by the Secretary, the resolution establishing and designating the
series and fixing and determining the relative rights and preferences thereof
shall become effective and shall constitute an amendment of the articles of
incorporation.
Section XVII.115. Subscription for Shares
A subscription for shares
of a corporation to be organized shall be irrevocable for a period of six
months, unless otherwise provided by the terms of the subscription agreement or
unless all of the subscribers consent to the revocation of such subscription.
Unless otherwise provided in the subscription agreement, subscriptions for
shares, whether made before or after the organization of a corporation, shall be
paid in full at such time, or in such installments and at such times, as shall
be determined by the board of directors. Any call made by the board of directors
for payment on subscriptions shall be uniform as to all shares of the same class
or as to all shares of the same series, as the case may be. In case of default
in the payment of any installment or call when such payment is due, the
corporation may proceed to collect the amount due in the same manner as any debt
due the corporation. The by-laws may prescribe other penalties for failure to
pay installments or calls that may become due, but no penalty working a
forfeiture of a subscription or of the amounts paid thereon, shall be declared
as against any subscriber unless the amount due thereon shall remain unpaid for
a period of twenty days after written demand has been made therefor. If mailed,
such written demand shall be deemed to be made when deposited in the United
States mail in a sealed envelope addressed to the subscriber at his last post
office address known to the corporation, with postage thereon prepaid. In the
event of the sale of any shares by reason of any forfeiture, the excess of
proceeds realized over the amount due and unpaid on such shares shall be paid to
the delinquent subscriber or to his legal representative.
Section XVIII.116. Consideration for Shares
Shares having a par value
may be issued for such consideration expressed in dollars, not less than the par
value thereof, as shall be fixed from time to time by the board of directors.
Shares without par value may be issued for such consideration expressed in
dollars as may be fixed from time to time by the board of directors unless the
articles of incorporation reserve to the shareholders the right to fix the
consideration. In the event that such right be reserved as to any shares, the
shareholders shall, prior to the issuance of such shares, fix the consideration
to be received for such shares, by a vote of the holders of a majority of all
shares entitled to vote thereon. Treasury shares may be disposed of by the
corporation for such consideration expressed in dollars as may be fixed from
time to time by the board of directors. That part of the surplus of a
corporation which is transferred to stated capital upon the issuance of shares
as a share dividend shall be deemed to be the consideration for the issuance of
such shares. In the event of the issuance of shares upon the conversion or
exchange of indebtedness or shares,
(a) The principal sum of,
and accrued interest on, the indebtedness so exchanged or converted, or the
stated capital then represented by the shares so exchanged or converted, and
(b) That part of surplus,
if any, transferred to stated capital upon the issuance of shares for the shares
so exchanged or converted, and
(c) Any additional
consideration paid to the corporation upon the issuance of shares for the
indebtedness or shares so exchanged or converted.
Section XIX.117. Payment for Shares.
The consideration for the
issuance of shares may be paid, in whole or in part, in cash, in other property,
tangible or intangible, or in labor or services actually performed for the
corporation. When payment of the consideration for which shares are to be issued
shall have been received by the corporation, such shares shall be deemed to be
fully paid and non-assessable. Neither promissory notes nor future services
shall constitute payment or part payment for the issuance of shares of a
corporation. In the absence qf fraud in the transaction, the judgment of the
board of directors or the shareholders, as the case may be, as to the value of
the consideration received for shares shall be conclusive.
Section XX.118. Stock Rights and Options
Subject to any provisions
in respect thereof set forth in its articles of incorporation, a corporation may
create and issue, whether or not in connection with the issuance and sale of any
of its shares or other securities, rights or options entitling the holders
thereof to purchase from the corporation shares of any class or classes. Such
rights or options shall be evidenced in such manner as the board of directors
shall approve and, subject to the provisions of the articles of incorporation,
shall set forth the terms upon which, the time or times within which and the
price or prices at which such shares may be purchased from the corporation upon
the exercise of any such right or option. If such rights or options are to be
issued to directors, officers or employees as such of the corporation or of any
subsidiary thereof, and not to the shareholders generally, their issuance shall
be approved by the affirmative vote of the holders of a majority of the shares
entitled to vote thereon or shall be authorized by and consistent with a plan
approved or ratified by such a vote of shareholders. In the absence of fraud in
the transaction, the judgment of the board of directors as to the adequacy of
the consideration received for such rights or options shall be conclusive. The
price or prices to be received for any shares having a par value, other than
treasury shares to be issued upon the exercise of such rights or options, shall
not be less than the par value thereof.
Section XXL119. Determination of Amount of Stated Capital
In case of the issuance
by a corporation of shares having a par value, the consideration received
therefor shall constitute stated capital to the extent of the par value of such
shares, and the excess, if sny, of such consideration shall constitute capital
surplus. In case of the issuance by a corporation of shares without par value,
the entire consideration received therefor shall constitute stated capital
unless the corporation shall determine as provided in this section that only a
part thereof shall be stated capital. Within a period of sixty days after the
issuance of any shares without par value, the board of directors may allocate to
capital surplus any portion of the consideration received for the issuance of
such shares. No such allocation shall be made of any portion of the allocation
received for shares without par value having a preference in the assets of the
corporation in the event of involuntary liquidation except the amount, if any,
of such consideration in excess of such preference. If shares have been or shall
be issued by a corporation in merger or consolidation or in acquisition of all
or substantially all of the outstanding shares or of the property and assets of
another corporation, whether domestic or foreign, any amount that would
otherwise constitute capital surplus under the foregoing provisions of this
section may instead be allocated to earned surplus by the board of directors of
the issuing corporation except that its aggregate earned surplus shall not
exceed the sum of the earned surpluses as defined in this Title of the issuing
corporation and of all other corporations, domestic or foreign, that were merged
or consolidated or of which the shares or assets were acquired. The stated
capital of a corporation may be increased from time to time by resolution of the
board of directors directing that all or a part of the surplus of the
corporation be transferred to stated capital. The board of directors may direct
that the amount of the surplus so transferred shall be / deemed to be stated
capital in respect of any designated class of shares.
Section XXI.120. Expenses of Organization, Reorganization, and Financing
The reasonable charges
and expenses of organization or reorganization of a corporation, and the
reasonable expenses of and compensation for the sale or underwriting of its
shares, may be paid or allowed by such corporation out of the consideration
received by it in payment for its shares without thereby rendering such shares
not fully paid or assessable.
Section XXII.121. Certificates Representing Shares
The shares of a
corporation shall be represented by certificates signed by the president or a
vice president and the secretary or an assistant secretary of the corporation,
or a facsimile thereof. The signatures of the president or vice president and
the secretary or assistant secretary upon a certificate may be facsimiles if the
certificate is manually signed on behalf of a transfer agent or a registrar,
other than the corporation itself or an employee of the corporation. In case any
officer who has sired or whose facsimile signature has been placed upon such
certificate shall have ceased to be such officer before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer at the date of its issue. Every certificate representing shares
issued by a corporation which is authorized to issue sharos of more than one
class shall set forth upon the face or back of the certificate, or shall state
that the corporation will furnish to any shareholder upon request and without
charge, a full statement of the designations, preferences, limitations and
relative rights of the shares of each class authorized to be issued, and if the
corporation is authorized to issue any preferred or special class in series, the
variations in the relative rights and preferences between the shares of each
such series so far as the same have been fixed and determined and the authority
of the board of directors to fix and determine the relative rights and
preferences of subsequent series. Each certificate representing shares shall
state upon the face thereof:
(a) That the corporation
is organized under the laws of the Absentee Shawnee Tribe of Oklahoma.
(b) The name of the
person to whom issued.
(c) The number and class
of shares, and the designation of the series, if any, which such certificate
represents.
(d) The par value of each
share represented by such certificate, or a statement that the shares are
without par value. No certificate shall be issued for any share until such share
is fully paid.
Section XXIV.122. Fractional Shares
A corporation may:
(a) Issue fractions of a
share,
(b) Arrange for the
disposition of fractional interests by those entitled thereto,
(c) Pay in cash the fair
value of fractions of a share as of the time when those entitled to receive such
fractions are determined, or
(d) Issue scrip in
registered or bearer form which shall entitle the holder to receive a
certificate for a full share upon the surrender of such scrip aggregating a full
share. A certificate for a fractional share shall, but scrip shall not unless
otherwise provided therein, entitle the holder to exercise voting rights, to
receive dividends thereon, and to participate in any of the assets of the
corporation in the event of liquidation. The board of directors may cause scrip
to be issued subject to the condition that it shall become void if not exchanged
for certificates representing full shares before a specified date, or subject to
the condition that the shares for which scrip is exchangeable may be sold by the
corporation and the proceeds thereof distributed to the holders of the scrip, or
subject to any other conditions which the board of directors may deem advisable.
Section XXV.123. Liability of Subscribers and Shareholders
A holder of or subscriber
to shares of a corporation shall be under no obligation to the corporation or
its creditors with respect to such shares other than the obligation to pay to
the corporation the full consideration for which such shares were issued, or
were to be issued. Any person becoming an assignee or transferee of shares or of
a subscription for shares in good faith and without knowledge or notice that the
full consideration therefor has not been paid shall not be personally liable to
the corporation or its creditors for any unpaid portion of such consideration.
An executor, administrator, conservator, guardian, trustee, assignee for the
benefit of creditors, or receiver shall not be personally liable to the
corporation as a holder of or subscriber to shares of a corporation but the
estate and funds in his hands shall be so liable. No pledgee or other holder of
shares as collateral security shall be personally liable as a shareholder.
Section XXVI.124. Shareholders' Preemotive Rights
The shareholders of a
corporation shall have no preemptive right to acquire unissued or treasury
shares of the corporation, or securities of the corporation convertible into or
carrying a right to subscribe to or acquire shares, except to the extent, if
any, that such right is provided in the articles of incorporation.
Section XXVII.125. By-Laws
The initial by-laws of a
corporation shall be adopted by its board of directors. The power to alter,
amend or repeal the by-laws or adopt new by laws, subject to repeal or change by
action of the shareholders, shall be vested in the board of directors unless
reserved to the shareholders by the articles of incorporation. The by-laws may
contain any provisions for the regulation and management of the affairs of the
corporation not inconsistent with law or the articles of incorporation.
The corporate by-laws,
and any alteration, amendments, or repeal thereof, shall be filed in duplicate
with the Secretary who shall, upon payment of the filing fee, endorse thereon
the word "Filed" and the month, day, and year of the filing thereof.
The Secretary shall file one of the duplicate originals in his office and return
the other duplicate original to the corporation or its representative. The
by-laws, and any alteration, amendment, or repeal thereof shall be effective
from and after the date of filing unless a later effective date is conspicuously
and expressly stated in the instrument filed.
Section XXVIII.126. Meetings of Shareholders
Meetings of shareholders
may be held at such place within or without this jurisdiction as may be stated
in or fixed in accordance with the by-laws. If no other place is stated or so
fixed, meetings shall be held at the registered office of the corporation. An
annual meeting of the shareholders shall be held at such time as may be stated
in or fixed in accordance with the by-laws. If the annual meeting is not held
within any thirteen month period the Tribal Court may, on the application of any
shareholder, summarily order a meeting to be held. A special meeting of the
shareholders may be called by the board of directors, the holders of not less
than one-tenth of all the shares entitled to vote at the meeting, or such other
persons as may be authorized in the articles of incorporation or the by-laws.
Section XXIX.127. Notice of Shareholders' Meetings
Written notice stating
the place, day and hour of the meeting and, in case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten nor more than fifty days before the date of the meeting, either
personally or by mail, by or at the direction the the president, the secretary,
or the officer or persons calling the meeting, to each shareholder of record
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail addressed to the shareholder
at his address as it appears on the stock transfer books of the corporation,
with postage thereon prepaid.
Section XXX.128. Closing of Transfer Books and Fixing Record Date
For the purpose of
determining shareholders entitled to notice of or to vote at any meeting of
shareholders or any meeting of or any meeting of shareholders or any adjournment
thereof, or entitled to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the board of
directors of a corporation may provide that the stock transfer books shall be
dosed for a stated period but not to exceed, in any case, fifty days. If the
stock transfer books shall be dosed for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of shareholders, such books shall
be closed for at least ten days immediately preceding such meeting. In lieu of
dosing the stock transfer books, the by laws, or in the absence of an applicable
by-law the board of directors, may fix in advance a date as the record date for
any such determination of shareholders, such date in any case to be not more
than fifty days and, in case of a meeting of shareholders, not less than ten
days prior to the date on which particular action, requiring such determination
of shareholders, is to be taken. If the stock transfer books are not dosed and
no record date is fixed for the determination of shareholders entitled to notice
of or to vote at a meeting of shareholders, or shareholders entitled to receive
payment of a dividend, the date on which notice of the meeting is mailed or the
date on which the resolution of the board of directors declaring such dividend
is adopted, as the case may be, shall be the record date for such determination
of shareholders. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof.
Section XXXI.129. Voting Record
The officer or agent
having charge of the stock transfer books for shares of a corporation shall make
a complete record of the shareholders entitled to vote at such meeting or any
adjournment thereof, arranged in alphabetical order, with the address of and the
number of shares held by each. Such record shall be produced and kept open at
the time and place of the meeting and shall be subject to the inspection of any
shareholder during the whole time of the meeting for the purposes thereof.
Failure to comply with the requirements of this section shall not affect the
validity of any action taken at such meeting. An officer or agent having charge
of the stock transfer books who shall fail to prepare the record of
shareholders, or produce and keep it open for inspection at the meeting, as
provided in this section, shall be liable to any shareholder suffering damage on
account of such failure, to the extent of such damage.
Section XXXII.130. - Quorum of Shareholders
Unless otherwise provided
in the articles of incorporation, a majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at a meeting of
shareholders, but in no even shall a quorum consist of less than one-third of
the shares entitled to vote at the meeting. If a quorum is present, the
affirmative vote of the majority of shares represented at the meeting and
entitled to vote on the subject matter shall be the act of the shareholders,
unless the vote of a greater number or voting by classes is required by this
Title or the articles of incorporation or by-laws.
Section XXXIII.131. Voting of Shares
Each outstanding share,
regardless of class, shall be entitled to one vote on each matter submitted to a
vote at a meeting of shareholders, except as may be otherwise provided in the
articles of incorporation, if the articles of incorporation provide for more or
less than one vote for any share, on any matter, every reference in this Title
to a majority or other proportion of shares shall refer to such a majority or
other proportion of votes entitled to be cast. Neither treasury shares, nor
shares held by another corporation if a majority of the shares entitled to vote
for the election of directors of such other corporation is held by the
corporation, shall be voted at any meeting or counted in determining the total
number of outstanding shares at any given time. A shareholder may vote either in
person or by proxy executed in writing by the shareholder or by his duly
authorized attorney-in-fact No proxy shall be valid after eleven months from the
date of its execution, unless otherwise provided in the proxy.
Unless the articles of
incorporation otherwise provide, at each election for directors every
shareholder entitled to vote at such election shall have the right to vote, in
person or by proxy, the number of shares owned by him for as many persons as
there are directors to be elected and for whose election he has a right to vote,
or to cumulate his votes by giving one candidate as many votes as the number of
such directors multiplied by the number of his shares shall equal, or by the
distributing such votes on the same principle among any number of such
candidates. Shares standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent or proxy as the by-laws of such
other corporation may prescribe or, in the absence of such provision, as the
board of directors of such other corporation may determine.
Shares held by an
administrator, executor, guardian or conservator may be voted by him, either in
person or by proxy, without a transfer of such shares into his name. Shares
standing in the name of a trustee may be voted by him either in person or by
proxy, but no trustee shall be entitled to vote shares held by him without
transfer of such shares into his name.
Shares standing in the
name of a receiver may be voted by such receiver, and shares held by or under
the control of a receiver may be voted by such receiver without the transfer
thereof into his name if authority so to do be contained in an appropriate order
of the court by which such receiver .was appointed.
A shareholder whose
shares are pledged shall be entitled to vote such shares until the shares have
been transferred into the name of the pledgee, and thereafter the pledgee shall
be entitled to vote the shares so transferred. On and after the date on which
written notice of redemption of redeemable shares has been mailed to the holders
thereof and a sum sufficient to redeem such shares has been deposited with a
bank or trust company with irrevocable instruction and authority to pay the
redemption price to the holders thereof upon surrender of certificates therefor,
such shares shall not be entitled to vote on any matter and shall not be deemed
to be outstanding shares.
Section XXX1V.132. Voting Trusts and Agreements Among Shareholders
Any number of
shareholders of a corporation may create a voting trust for the purpose of
conferring upon a trustee or trustees the right to vote or otherwise represent
their shares, for a period of not to exceed ten years, by entering into a
written voting trust agreement specifying the terms and conditions of the voting
trust, by depositing a counterpart of the agreement with the corporation at its
registered office, and by transferring their shares to such trustee or trustees
for the purposes of the agreement. Such trustee or trustees shall keep a record
of the holders of voting trust certificates evidencing a beneficial interest in
the voting trust, giving the names and addresses of all such holders and the
number and class of the shares in respect of which the voting trust certificates
held by each are issued, and shall deposit a copy of such record with the
corporation at its registered office. The counterpart of the voting trust
agreement and the copy of such record so deposited with the corporation shall be
subject to the same right examination by a shareholder of the corporation, in
person or by agent ot attorney, as are the books and records of the corporation,
and such counterpart and such copy of such record shall be subject to
examination by any holder of record of voting trust certificates, either in
person or by agent or attorney, at any reasonable time for any proper purpose.
Agreements among shareholders regarding the voting of their shares shall be
valid and enforceable in accordance with their terms. Such agreements shall not
be subject to the provisions of this section regarding voting trusts.
Section XXXV.133. Board of Directors
The business and affairs
of a corporation shall be managed by a board of directors except as may be
otherwise provided in the articles of incorporation. If any such provision is
made in the articles of incorporation, the powers and duties conferred or
imposed upon the board of directors by this Title shall be exercised or
performed to such extent and by such person or persons as shall be provided in
the articles of incorporation. Directors need not be residents of this
jurisdiction or the reservation or shareholders of the corporation unless the
articles of incorporation or by-laws so require. The articles of incorporation
or by-laws may prescribe other qualifications for directors. The board of
directors shall have authority to fix the compensation of directors unless
otherwise provided in the articles of incorporation.
Section XXXVI.134. Number and Election - of Directors
The board of directors qf
a corporation shall consist of one or more members. The number of directors
shall be fixed by, or in the manner provided in, the articles of incorporation
or the by-laws, except as to the number constituting the initial board of
directors, which number shall be fixed by the articles of incorporation. The
number of directors may be increased or decreased from time to time by amendment
to, or in the manner provided, in, the articles of incorporation or the by-laws,
but no decrease shall have the effect of shortening the term of any incumbent
director. In the absence of a by-law providing for the number of directors, the
number shall be the same as that provided for the articles of incorporation. The
names and addresses of the members of the first board of directors shall be
stated in the articles of incorporation. Such persons shall hold office until
the first annual meeting
of shareholders, and until their successors shall have been elected and
qualified. At the first annual meeting of shareholders and at each annual
meeting thereafter the shareholders shall elect directors to hold office until
the next succeeding annual meeting, except in case of the classification of
directors as permitted by this Act. Each director shall hold office for the term
for which he is elected and until his successor shall have been elected and
qualified.
Section XXXVII.135. Classification of Directors
When the board of
directors shall consist of nine or more members, in lieu of election the whole
number of directors annually; the articles of incorporation may provide that the
directors be divided into either two or three classes, each class to be as
nearly equal in number as possible, the term of office of directors of the first
class to expire at the first annual meeting of shareholders after their
election, that of the second class to expire at the second annual meeting after
their election, and that of the third class, if any, to expire at the third
annual meeting after their election. At each annual meeting after such
classification the number of directors equal to the number of the class whose
term expires at the time of such meeting shall be elected to hold office until
the second succeeding annual meeting, if there be two classes, or until the
third succeeding annual meeting, if there be three classes. No classification of
directors shall be effective prior to the first annual meeting of shareholders.
Section XXXVIII.136. Vacancies
Any vacancy occurring in
the board of directors may be filled by the affirmative vote of a majority of
the remaining directors though less than a quorum of the board of directors. A
director elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office. Any directorship to be filled by reason of an
increase in the number of directors may be filled by the board of directors for
a term of office continuing only until the next election of directors by the
shareholders.
Section XXXIX.137. Removal of Directars
At a meeting of
shareholders called expressly for that purpose, directors may be removed in the
manner provided in this sestion. Any director or the entire board of directors
may be removed, with &it without cause, by a vote of the holders of a
majority of the shares then entitled to vote at an election of directors. In the
case of a corporation having cumulative voting, if less than the entire board is
to be removed, no one of the directors may be removed if the votes cast against
his removal would be sufficient to elect him if then cumulatively voted at an
election of the entire board of directors, or if there be classes of directors,
at an election of the class of directors of which he is a part.
Whenever the holders of
the shares of any class are entitled to elect one or more directors by the
provisions of the articles of incorporation, the provisions of this section
shall apply, in respect to the removal of a director or directors so elected, to
the vote of the holders of the outstanding shares of that class and not to the
vote of the outstanding shares as a whole.
Section I.138 Quorum of Directors
A majority of the number
of directors fixed- by or in the manner provided in the by-laws or in the
absence of a by-law fixing or providing for the number of directors, then of the
number of directors, then of the number stated in the articles of incorporation,
shall constitute a quorum for the transaction of business unless a greater
number is required by the articles of incorporation or the by-laws. The act of
the majority of the directors present at a meeting at which a quorum is present
shall be the act of the board of directors, unless the act of a greater number
is required by the articles of incorporation or the by-laws.
Section II.139. Director Conflicts of Interest
No contract or other
transaction between a corporation and one or more of its directors or any other
corporation, firm, association or entity in which one or more of its directors
are directors or officers or are financially interested, shall be either void or
voidable because of such relationship or interest or because such director or
directors are present at the meeting of the board of directors or a committee
thereof which authorizes, approves or ratifies such contract or transaction or
because his or their votes are counted for such purpose, if:
(a) The fact of such
relationship or interest is disclosed or known to the board of directors or
committee which authorizes, approves or ratifies the contract or transaction by
a vote or consent sufficient for the purpose without counting the votes or
consents of such interested directors; or
(b) The fact of such
relationship or interest is disclosed or known to the shareholders entitled to
vote and they authorize, approve or ratify such contract or transaction by vote
or written consent; or
(c) The contract or
transaction is fair and reasonable to the corporation.
Common or interested
directors may be counted in determining the presence of a quorum at a meeting of
the board of directors or a committee thereof which authorizes, approves or
ratifies such contract or transaction.
Section III.140. Executive and Other Committees
If the articles of
incorporation or the by-laws so provide, the baard of directors, by resolution
and adopted by a majority of the full board of directors, may designate from
among its members an executive committee and one or more other committees each
committee and one or more other committees each of which, to the extent provided
in such resolution or in the articles of incorporation or the by-laws of the
corporation, shall have and may exercise all the authority of the board of
directors, but no such committee shall have the authority of the board of
directors in reference to amending the articles of incorporation, adopting a
plin of merger or consolidation, recommending to the shareholders the sale,
lease, exchange or other disposition of all or substantially all the property
and assets of the corporation otherwise than in the usual and regular course of
its business, recommending to the shareholders a voluntary dissolution of the
corporation or a revocation thereof, or amending the by-laws of the corporation.
The designation of any such committee and the delegation thereto of authority
shall not operate to relieve the board of directors, or any member thereof, of
any responsibility imposed by law.
Section IV.141. Place and Notice of Directors' Meetings; Committee
Meetings
Meetings of the board of
directors, regular or special maybe held either within or without this
jurisdiction. Regular meetings of the board of directors or any committee
designated thereby may be held with or without notice as prescribed in the
by-laws. Special meetings of the board of directors or any committee designated
thereby shall be held upon such notice as is prescribed in the by-laws.
Attendance of a director at a meeting shall constitute a waiver of notice of
such meeting, except where a director attends a meeting for the express purpose
of objecting to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the board of directors or any
committee designated, thereby need be specified in the notice of waiver of
notice of such meeting unless required by the by-laws.
Except as may be
otherwise restricted by the articles of incorporation or by-laws, members of the
board of directors or any committee designated thereby may participate in a
meeting of such board or committee designated thereby may participate in a
meeting of such board or committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time and participation by such means
shall constitute presence in person at a meeting.
Section V.142. Action by Directors Without a Meeting
Unless otherwise provided
by the articles of incorporation or by-laws, any action required by this Title
to be taken at a meeting of the directors of a corporation, or any action which
may be taken at a meeting of the directors or of a committee, may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the directors, or all of the members of the committee,
as the case may be. Such consent shall have the same effect as a unanimous vote.
Section VI.143. Dividends
The board of directors of
a corporation may, from time to time, declare and the corporation may pay
dividends in cash, property, dr its own shares, except when the corporation is
insolvent or when the payment thereof would render the corporation insolvent or
when the declaration or payment thereof would be contrary to any restriction
contained in the articles of incorporation, subject to the following provisions:
(a) Dividends may be
declared and paid in cash or property only out of the unreserved and
unrestricted earned surplus of the corporation, or out of the unreserved and
unrestricted net earnings of the current fiscal year and the next preceding
fiscal year taken as a single period, except as otherwise provided in this
section.
(b) If the articles of
incorporation of a corporation engaged in the business of exploiting natural
resources so provide, dividends may be declared and paid in cash out of the
depletion reserves, but each such dividend shall be identified as a distribution
of such reserves and the amount per share paid form such reserves shall be
disclosed to the shareholders receiving the same concurrently with the
distribution thereof.
(c) Dividends may be
declared and paid in its own treasury shares.
(d) Dividends may be
declared and paid in its own authorized but unissued shares out of any
unreserved and unrestricted surplus of the corporation upon the following
conditions:
(1) If a dividend is
payable in its own shares having a par value, such shares shall be issued at
not less than the par value thereof and there shall be transferred to stated
capital at the time such dividend is paid an amount of surplus equal to the
aggregate par value of the shares to be issued as a dividend.
(2) If a dividend is
payable in its own shares without par value, such shares shall be issued at
such stated value as shall be fixed by the board of directors by resolution
adopted at the time such dividend is declared, and there shall be transferred
to stated capital at the time such dividend is paid an amount of surplus equal
to the aggregate stated value so fixed in respect of such shares; and the
amount per share so transferred to stated capital shall be disclosed to the
shareholders receiving such dividend concurrently with the payment thereof.
(e) No dividend payable
in shares of any class shall be paid to the holders of shares of any other class
unless the articles of incorporation so provide or such payment is authorized by
the affirmative vote or the written consent of the holders of at least a
majority of the outstanding shares of the class in which the payment is to be
made. A split-up or division of the issued shares of any class into a greater
number of shares of the same class without increasing the stated capital of the
corporation shall not be construed to be a share dividend within the meaning of
this section.
Section VII.144. Distribution from Capital Surplus
The board of directors of
a corporation may, from time to time, distribute to its shareholders out of
capital surplus of the corporation a portion of its assets, in cash or property,
subject to the following provisions:
(a) No such distribution
shall be made at a time when the corporation is insolvent or when such
distribution would render the corporation insolvent
(b) No such distribution
shall be made unless the articles of incorporation so provide or such
distribution is authorized by the affirmative vote of the holders of a majority
of the outstanding shares of each class whether or not entitled to vote thereon
by the provisions of the articles of incorporation of the corporation.
(c) No such distribution
shall be made to the holders of any class of shares unless all cumulative
dividends accrued on all preferred or special classes of shares entitled to
preferential dividends shall have been fully paid.
(d) No such distribution
shall be made to the holders of any class of shares which would reduce the
remaining net assets of the corporation below the aggregate preferential amount
payable in event of involuntary liquidation to the holders of shares having
preferential rights to the assets of the corporation in the event of
liquidation.
(e) Each such
distribution, when made, shall be identified as a distribution from capital
surplus and the amount per share disclosed to the shareholders receiving the
same concurrently with the distribution thereof. The board of directors of a
corporation may also, from time to time, distribute to the holders of its
outstanding shares having a cumulative preferential right to receive dividends,
in discharge of their cumulative dividend rights, dividends payable in cash out
of the capital surplus of the corporation, if at the time the corporation has no
earned surplus and is not insolvent and would not thereby be rendered insolvent.
Each such distribution when made, shall be identified as a payment of cumulative
dividends out of capital surplus.
Section VIII.145. Loans to Emoloyees and Directors
A corporation shall not
lend money to or use its corporation to assist its directors without
authorization in the particular case by its shareholders, but may lend money to
and use its credit to assist any employee of the corporation or of a subsidiary,
including any such employee who is a director of the corporation, if the board
of directors decides that such loan or assistance may benefit the corporation.
Section IX.145. Liability of Directors in Certain Cases
In addition to any other
liabilities imposed by law upon directors of a corporation:
(a) Directors of a
corporation who vote for or assent to the declaration of any dividend or other
distribution of the assets of a corporation to its shareholders contrary to the
provisions of this Title or contrary to any restrictions contained in the
articles of incorporation, shall be jointly and severally liable to the
corporation for the amount of such dividend which is paid or the value of such
assets which are distributed in excess of the amount of such dividend or
distribution which could have been paid or distributed without a violation of
the provisions of this Title or the restrictions in the articles of
incorporation.
(b) Directors of a
corporation who vote for or assent to the purchase of its own shares contrary to
the provisions of this Title shall be jointly and severally liable to the
corporation for the amount of consideration paid for such shares which is in
excess of the maximum amount which could have been paid therefor without a
violation of the provisions of this Title.
(c) The directors of a
corporation who vote for or assent to any distribution of assets of a
corporation to its shareholders during the liquidation of the corporation
without the payment and discharge of, or making adequate provision for, all
known debts, obligations, and liabilities of the corporation shall be jointly
and severally liable to the corporation for the value of such assets which are
distributed, to the extent that such debts, obligations and liabilities of the
corporation are to thereafter paid and discharged. A director of a corporation
who is present at a meeting of its board of directors at which action on any
corporate matter is taken shall be presumed to have assented to the action taken
unless his dissent shall be entered in the minutes of the meeting or unless he
shall file his written dissent to such action with the secretary of the meeting
before the adjournment thereof or shall forward such dissent by registered mail
to the secretary of the corporation immediately after the adjournment of the
meeting. Such right to dissent shall not apply to a director who voted in favor
of such action. A director shall not be liable under (a), (b), or (c) of this
section if he relied and acted in good faith upon financial statements of the
corporation represented to him to be correct by the president or the officer of
such corporation having charge of its books of account, or stated in a written
report by an independent public or certified public accountant or firm of such
accountants fairly to reflect the financial condition of such corporation, nor
shall he be so liable if in good faith in determining the amount available for
any such dividend or distribution he considered the assets to be of their book
value. Any director against whom a claim be asserted under or pursuant to this
section for the payment of dividend or other distribution of assets of a
corporation and who shall be held liable thereon, shall be entitled to
contribution from the shareholders who accepted or received any such dividend or
assets, knowing such dividend or distribution to have been made in violation of
this Act, in proportion to the amount received by them. Any director against
whom a claim shall be asserted under or pursuant to this section shall be
entitled to contribution from the other directors who voted for or assented to
the action upon which the claim is asserted.
Section X.147. Provisions Relating to Actions by Shareholders
No action shall be
brought in this jurisdiction by a shareholder in the right of a domestic or
foreign corporation unless the plaintiff was a holder of record of shares or of
voting trust certificates therefor at the time of the transaction of which he
complains, or his shares of voting trust certificate thereafter devolved upon
him by operation of law from a person who was a holder of record at such time.
In any action hereafter instituted in the right of any domestic or foreign
corporation by the holder or holders of record of shares of such corporation or
of voting trust certificates therefor, the court having jurisdiction, upon final
judgment and a finding that the action was brought without reasonable cause, may
require the plaintiff or plaintiffs to pay to the parties named as defendant the
reasonable expenses, including fees of attorneys, incurred by them in the
defense of such action.
In any action instituted
or maintained in the right of any domestic or foreign corporation by the holder
or holders of recprd of less than five percent of the outstanding shares of any
class of such corporation or of voting trust certificates so held have a market
value in excess of twenty-five thousand dollars, the corporation in whose right
such action is brought shall be entitled at any time before final judgment to
require the plaintiff or plaintiffs to give security for the reasonable
expenses, including fees of attorneys, that may be incurred by it in connection
with such action or may be incurred by other parties named as defendant for
which it may become legally liable. Market value shall be determined as of the
date that the plaintiff institutes the action or, in the case of an intervenor,
as of the date that he becomes a party to the action. The amount of such
security may from time to time be increased or decreased, in the discretion of
the court, upon showing that the security provided has or may become inadequate
or is excessive. The corporation shall have recourse to such security in such
amount as the court having jurisdiction shall determine upon the termination of
such action, whether or not the court finds the action was brought without
reasonable cause.
Section XI.148. Officers
The officers of a
corporation shall consist of a president, one or more vice presidents as may be
prescribed by the by-laws, a secretary, and a treasurer, each of whom shall be
elected by the board of directors at such time and in such manner as may be
prescribed by the by-laws. Such other officers and assistant officers and agents
as may be deemed necessary may be elected or appointed by the board of directors
or chosen in such other manner as may be prescribed by the by-laws. Any two or
more offices may be held by the same person, except the offices of president and
secretary. All officers and agents of the corporation, as between themselves and
the corporation, shall have such authority and perform such duties in the
management of the corporation as may be provided in the by-laws, or as may be
determined by resolution of the board of directors not inconsistent with the
by-laws.
Any officer or agent may
be removed by the board of directors whenever in its judgment the best interests
of the corporation will t5e served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Election or
appointment of an officer or agent shall not of itself create contract rights.
Section XIII.150. Books and Records
Each corporation shall
keep correct and complete books and records of account and shall keep minutes of
the proceedings of its shareholders and board of directors and shall keep at its
registered office or principal place of business, or at the office of its
transfer agent or registrar, a record of its shareholders, giving the names and
addresses of all shareholders and the number and class of the shares held by
each. Any books, records and minutes may be in written form or in any other form
capable of being converted into written form within a reasonable time. Any
person who shall have been a holder of record of shares or of voting trust
certificates therefor at least six months immediately preceding his demand or
shall be the holder of record of, or the holder of record of voting trust
certificates for, at least five percent of all the outstanding shares of the
corporation, upon written demand stating the purpose thereof, shall have the
right to examine, in person, or by agent or attorney, at any reasonable time or
times, for any proper purpose its relevant books and records of accounts,
minutes, and record of shareholders and to make extracts therefrom. Any officer
or agent who, or a corporation which, shall refuse to allow any such shareholder
or holder of voting trust certificates, or his agent or attorney, so to examine
and make extracts from its books and records of account, minutes, and record of
shareholders, for any proper purpose, shall be liable to such shareholder or
holder of voting trust certificates in a penalty of ten percent of the value of
the shares owned by such shareholder, or in respect of which such voting
shareholder, or in respect of which such voting trust certificates are issued,
in addition to any other damages or remedy afforded him by law. It shall be a
defense to any action for penalties under this section that the person suing
therefor has within two years sold or offered for sale any list of shareholders
or of holders of voting trust certificates for shares of such corporation or any
other corporation or has aided or abetted any person in procuring any list of
shareholders or of holders of voting trust certificates for any such purpose, or
has improperly used any information secured through any prior examination of the
books and records of account, or minutes, or record of shareholders or of
holders of voting trust certificates for shares of such corporation or any other
corporation, or was not acting in good faith or for a proper purpose in making
his demand.
Nothing herein contained
shall impair the power of any court of competent jurisdiction, upon proof by a
shareholder or hoider of voting trust certificates or proper purpose,
irrespective of the period of time during which such shareholder or holder of
voting trust certificates shall have been a shareholder of record or a holder of
record of voting trust certificates, and irrespective of the number of shares
held by him or represented by voting trust certificates held by him to compel
the production for examination by such shareholder or holder of voting trust
certificates of the books and records of account, minutes and record of
shareholders of a corporation. Upon the written request of any shareholder or
holder of voting trust certificates for shares of a corporation, the corporation
shall mail to such shareholder or holder' of voting trust certificates its most
recent financial statements showing in reasonable detail its assets and
liabilities and the results of its operations.
I. CHAPTER TWO
II. FORMATION OF CORPORATIONS
Section 111.201. Ineorporators
One or more persons, or a
domestic or foreign corporation, may act as incorporator or incorporators of a
corporation by signing and delivering in duplicate to the Secretary Articles of
Incorporation for such corporation.
Section IV.202. Articles of Incorporation
The Articles of
Incorporation shall set forth:
(a) The name of the
corporation.
(b) The period of
duration, which may be perpetual.
(c) The purpose or
purposes for which the corporation is organized which may be stated to be, or to
include, the transaction of any or all lawful business for which corporations
may be incorporated under this Title.
(d) The aggregate number
of shares which the corporation shall have authority to issue; if such shares
are to consist of one class only, the par value of each of such shares, or a
statement that all of such shares are without par value; or, if such shares are
to be divided into classes, the number of shares of each class, and a statement
of the par value of the shares of each such class or that such shares are to be
without par value.
(e) If the shares are to
be divided into classes the designation of each class and a statement of the
preferences, limitations and relative rights in respect of the shares of each
class.
(f) If the corporation is
to issue the shares of any preferred or special class in series, then the
designation of each series and a statement of the variations in the relative
rights and preferences as between series insofar as the same are to be fixed in
the Articles of Incorporation, and a statement of any authority to be vested in
the board of directors to establish series and fix and determine the variations
in the relative rights and preferences as between series.
(g) If any preemptive
right is to be ranted to shareholders, the provisions therefor.
(h) Any provision, not
inconsistent with law, which the incorporation for the regulation of the
internal affairs of the corporation, including any provision restricting the
transfer of shares and any provision which under this Title is required or
permitted to be set forth in the by-laws.
(i) The address of its
initial registered office, and the name of its initial registered agent at such
address.
(j) The number of
directors constituting the initial board of directors and the names and
addresses of the persons who are to serve as directors until the first annual
meeting of shareholders or until their successors be elected and qualify.
(k) The name and address
of each incorporator. It shall not be necessary to set forth in the Articles of
Incorporation any of the corporate powers enumerated in this Title.
Section V.203. Ffling of Articles of Incornoration
Duplicate originals of
the Articles of Incorporation shall be delivered to the Secretary. If the
Secretary finds that the Articles of Incorporation conform to law, he shall,
when all fees have been paid as in this Title prescribed:
(a) Endorse on each of
such duplicate originals the word "Filed," and the month, day and year
of the filing thereof.
(b) File one of such
duplicate originals in his office.
(c) Issue a certificate
of incorporation to which he shall affix the other duplicate original. The
certificate of incorporation, together with the duplicate original of the
Articles of Incorporation affixed thereto by the Secretary shall be returned to
the incorporators or their representative.
Section VI.204. Effective of Issuance of Certificate of Incorporation
Upon the issuance of the
certificate of incorporation, the corporate existence shall begin, and such
certificate of incorporation shall be conclusive evidence that all conditions
precedent required to be performed by the incorporators have been compiled with
and that the corporation has been incorporated under this Title, except as
against the Tribe in a proceeding to cancel or revoke the certificate of
incorporation or for involuntary dissolution of the corporation.
Section VII.205. Organization Meeting of Directors
After the issuance of the
certificate of incorporation an organization meeting of the board of directors
named in the Articles of Incorporation shall be held, either within or without
this jurisdiction at the call of majority of the directors named in the Articles
of Incorporation for the purpose of adopting by-laws, electing officers and
transacting such other business as may come before the meeting. The directors
caning the meeting shall give at least three days notice thereof by mail to each
director so named, stating the time and place of the meeting.
I. CHAPTER THREE
II. AMENDMENT OF ARTICLES OF INCORPORATION
Sectian III.301. Right to Amend Articles of Incorporation
A corporation may amend
its Articles of Incorporation, from time to time, in any and as many respects as
may be desired, so long as its Articles of Incorporation as amended contain only
such provisions as might be lawfully contained in original Articles of
Incorporation at the time of making such amendment, and, if a change in shares
or the rights of shareholders, or an exchange, reclassification or cancellation
of shares or rights of shareholders is to be made, such provisions as may be
necessary to effect such change, exchange, reclassification or cancellation. In
particular, and without limitation upon such general power of amendment, a
corporation may amend its Articles of Incorporation, from time to time, so as:
(a) To change its
corporate name.
(b) To change its period
of duration.
(c) To change, enlarge or
diminish its corporate purposes.
(d) To increase or
decrease the aggregate number of shares, or shares of any class, which the
corporation has authority to issue.
(e) To increase or
decrease the par value of the authorized shares of any class having a par value,
whether issued or unissued.
(f) To exchange,
classify, reclassify or cancel all or any part of its shares, whether issued or
unissued.
(g) To change the
designation of all or any part of its shares, whether issued or unissued, and to
change the preferences, limitations, and the relative rights in respect of all
or any part of its shares, whether issued or unissued.
(h) To change shares
having the par value, whether issued or unissued, into the same or a different
number of shares without par value, and to change shares without par value, and
to change shares without par value, whether issued or unissued, into the same or
a different number of shares having a par value.
(i) To change the shares
of any class, whether issued or unissued, and whether with or without par value,
into a different number of shares of the same class or into the same or a
different number of shares, either with or without par value, of other classes.
(j) To create new classes
of shares having rights and preferences either prior and superior or subordinate
and inferior to the shares of any class then authorized whether issued or
unissued.
(k) To cancel or
otherwise affect the right of the holders of the shares of any class to receive
dividends which have accrued but have not been declared.
(i) To divide any
preferred or special class of shares, whether issued or unissued, into series
and fix and determine the designations of such series and the variations in the
relative rights and preferences as between the shares of such series.
(m) To authorize the
board of directors to establish, out of authorized but unissued shares, series
of any preferred or special class of shares and fix and determine the relative
rights and preferences of the shares of any series so established.
(n) To authorize the
board of directors to fix and determine the relative rights and preferences of
the authorized but unissued shares of series theretofore established in respect
of which either the relative rights and preferences have not been fixed and
determined or the relative rights and preferences theretofore fixed and
determined are to be changed.
(o) To revoke, diminish,
or enlarge the authority of the board of directors to establish series out of
authorized but unissued shares of any preferred or special class and fix and
determine the relative rights and preferences of the shares of any series so
established.
(p) To limit, deny or
grant to shareholders of any class the preemptive right to acquire additional or
treasury shares of the corporation, whether then or thereafter authorized.
Section lV.302. Procedure to Amend Article of Incornoration
Amendments to the
Articles of Incorporation shall be made in the following manner:
(a) The board of
directors shall adopt a resolution setting forth the proposed amendment and, if
shares have been issued, directing that it be submitted to a vote at a meeting
of shareholders, which may be either the annual or a special meeting. If no
shares have been issued, the amendment shall be adopted by resolution of the
board of directors and the provisions for adoption by shareholders shall not
apply. The resolution may incorporate the proposed amendment in restated
Articles of Incorporation which contain a statement that except for the
designated amendment the restated Articles of Incorporation correctly set forth
without change the corresponding provisions of the Articles of Incorporations as
theretofore amended, and that the restated Articles of Incorporation together
with the designated amendment supersede the original Articles of Incorporation
and all amendments thereto.
(b) Written notice
setting forth the proposed amendment or a summary of the changes to be effected
thereby shall be given to each shareholder of record entitled to vote thereon
within the time and in the manner provided in this Title for the giving of
notice of meetings of shareholders. If the meeting be an annual meeting, the
proposed amendment of such summary may be included in the notice of such annual
meeting.
(c) At such meeting a
vote of the shareholders entitled to vote thereon shall be taken on the proposed
amendment. The proposed amendment shall be adopted upon receiving the
affirmative vote of the holders of a majority of the shares entitled to vote
thereon, unless any class of shares is entitled to vote thereon as a class, in
which event the proposed amendment shall be adopted upon receiving the
affirmative vote of the holders. of a majority of the shares of each class of
shares entitled to vote thereon. Any number of amendments may be submitted to
the shareholders, and voted upon by them, at one meeting.
Section V.303. Class Voting on Amendments
The holders of the
outstanding shares of a class shall be entitled to vote as a class upon a
proposed amendment, whether or not entitled to vote thereon by the provisions of
the Articles of Incorporation, if the amendment would:
(a) Increase or decrease
the aggregate number of authorized shares of such class.
(b) Increase or decrease
the par value of the shares of such class.
(c) Effect an exchange,
reclassification or cancellation of all or part of the shares of such class.
(d) Effect and exchange,
or create a right of exchange, of all or any part of the shares of another class
into the shares of such class.
(e) Change the
designations, preferences, limitations, or relative rights of the shares of such
class.
(f) Change the shares of
such class, whether with or without par value, into the same or a different
number of shares, either with or without par value, of the same class or another
class or classes.
(g) Create a new class of
shares having rights and preferences prior and superior to the shares of such
class, or increase the rights and preferences or the number of authorized
shares, of any class having the rights and preferences prior or superior to the
shares of such class.
(h) In the case of a
preferred or special class of shares, divide the shares of such class into
series and fix and determine the designation of such series and the variations
in the relative rights and preferences between the shares of such series, or
authorize the board of directors to do so.
(i) Limit or deny any
existing preemptive rights of the shares of such class.
(j) Cancel or otherwise
affect dividends on the shares of such class which have accrued but have not
been declared.
Section VI.304. Articles of Amendment
The articles of amendment
shall be executed in duplicate by the corporation by its president or a vice
president and by its secretary or an assistant secretary, and verified by one of
the officers signing such articles, and shall set forth:
(a) The name of the
corporation.
(b) The amendments so
adopted.
(c) The date of the
adoption of the amendment by the shareholders or by the board of directors where
no shares have been issued.
(d) The number of shares
outstanding, and the number of shares entitled to vote thereon, and if the
shares of any class are entitled to vote thereon at a class, the designation and
number of outstanding shares entitled to vote thereon of each such class.
(e) The number of shares
voted for and against such amendment, respectively, and, if the shares of any
class are entitled to vote thereon as a class, the number of shares of each such
class voted for and against such amendment, respectively, or if no shares have
been issued, a statement to that effect.
(f) If such amendment
provides for an exchange, reclassification or cancellation of issued shares, and
if the manner in which the same shall be effected is not set forth in the
amendment, then a statement of the manner in which the same shall be effected.
(g) If such amendment
effects a change in the amount of stated capital,
then a statement of the manner in which the same is effected and a statement,
expressed in dollars, of the amount of stated capital as changed by such
amendment.
Section VII.305. Filing of Articles of Amendment
Duplicate originals of
the articles of amendment shall be delivered to the Secretary. If the Secretary
finds that the articles of amendment conform to law, he shall, when all fees and
franchise taxes have been paid as in this Title prescribed:
(a) Endorse on each of
such duplicate originals the word "Filed," and the month, day and year
of the filing thereof.
(b) File one of such
duplicate originals in his office.
(c) Issue a certificate
of amendment to which he shall affix the other duplicate original. The
certificate of amendment, together with the duplicate original of the articles
of amendment affixed thereto by the Secretary, shall be returned to the
corporation or its representative.
Section VIII.306. Effect of Certificate of Amendment
Upon the issuance of the
certificate of amendment by the Secretary, the amendment shall become effective
and the Articles of Incorporation shall be deemed to be amended accordingly. No
amendment shall affect any existing cause of action in favor of ot against such
corporation, or any pending suit to which such corporation shall be a party, or
the existing rights of persons other than shareholders; and, in the event the
corporate name shall be changed by amendment, no suit brought by or against such
corporation under its former name shall abate for that reason.
Section IX.307. Restated Articles of Incorporation
A domestic corporation
may at any time restate its Articles of Incorporation as theretofore amended, by
a resolution adopted by the board of directors. Upon the adoption of such
resolution, restated Articles of Incorporation by its president or a vice
president and by its secretary or assistant secretary and verified by one of the
officers signing such articles and shall set forth all of the operative
provisions of the Articles of Incorporation as theretofore amended together with
a statement that the restated Articles of Incorporation correctly set forth
without change the corresponding provisions of the Articles of Incorporation as
theretofore amended and that the restated Articles of Incorporation supersede
the original Articles of Incorporation and all amendments thereto. Duplicate
originals of the restated Articles of Incorporation shall be delivered to the
Secretary. If the secretary finds that such restated Articles of Incorporation
conform to law, he shall, when all fees and franchise taxes have been paid as in
this Title prescribed:
(a) Endorse on each of
such duplicate originals the word "Filed," and the month, day and year
of the filing thereof.
(b) File one of such
duplicate originals in his office.
(c) Issue a restated
certificate of incorporation, to which he shall affix the other duplicate
original. The restated certificate of incorporation, together with the duplicate
original of the restated Articles of Incorporation affixed thereto by the
Secretary shall be returned to the corporation or its representative. Upon the
issuance of the restated certificate of incorporation by the Secretary, the
restated Articles of Incorporation shall become effective and shall supersede
the original Articles of Incorporation and all amendments thereto.
Section X.308. Amendment of Articles of Incorporation in Reorganization
Proceedings
Whenever a plan of
reorganization of a corporation has been confirmed by decree or order of a court
of competent jurisdiction in proceedings of the reorganization of such
corporation, pursuant to the provisions of any applicable statute of the United
States relating to reorganizations of corporations, the Articles of
I