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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
Incorporation of the corporation may be amended, in the manner provided in this
section, in as many respects as may be necessary to carry out the plan and put
it into effect, so long as the 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. In particular and without
limitation upon such general power of amendment, the Articles of Incorporation
may be amended for such purpose so as to:
(a) Change the corporate
name, period of duration or corporate purposes of the corporation;
(b) Repeal, alter or
amend the by-laws of the corporation;
(c) Change the aggregate
number of shares or any class, which the corporation has authority to issue;
(d) Change the
preferences, limitations and relative rights in respect of all or any part of
the shares of the corporation, and classify, reclassify or cancel all or any
part thereof, whether issued or unissued.
(e) Authorize the
issuance of bonds, debentures or othet obligations of the corporation, whether
or not, convertible into shares of any class or bearing warrants or other
evidences of optional rights to purchase or subscribe for shares of any class,
and fix the terms and conditions Thereof; and,
(f) Constitute or
reconstitute and classify or reclassify the board of directors of the
corporation, and appoint directors and officers in place of or in addition to
all or any of the directors or officers then in office.
(g) Amendments to the
Articles of Incorporation pursuant to this Section shall be made, upon
submission of the amendments to the Tribal Secretary, in the following manner:
(1) The Tribal
Secretary shall 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 with the certified copy of the decree.
(3) 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. Upon the issuance of the certificate of
amendment by the Secretary, the amendments shall become effective and the
Articles of Incorporation shall be deemed to be amended accordingly, without
any action thereon by the directors or shareholders of the corporation and
with the same effect as if the amendments had been adopted by unanimous action
of the directors and shareholders of the corporation.
Section XI.309. Restriction on Redemotion or Purchase of Redeemable Shares
No redemption or purchase
of redeemable shares shall be made by a corporation when it is insolvent or when
such redemption or purchase would render it insolvent, or which would reduce the
net assets below the aggregate
amount payable to the holders of shares having prior or equal rights to the
assets of the corporation upon involuntary dissolution.
Section XII.310. Cancellation of Redeemable Shares by Redennotion or
Purchase
When redeemable shares of
a corporation are redeemed or purchased by the corporation, the redemption or
purchase shalt effect a cancellation of such shares, and a statement of
cancellation shall be filed as provided in this section. Thereupon such shares
shall be restored to the status of authorized but unissued shares, unless the
Articles of Incorporation provide that such shares when redeemed or purchased
shall not be reissued, in which case the filing of the statement of cancellation
shall constitute an amendment to the Articles of Incorporation and shall reduce
the number of shares of the class so cancelled which the corporation is
authorized to issue by the number of shares so cancelled.
The statement of
cancellation 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 set forth:
(a) The name of the
corporation.
(b) The number of
redeemable shares cancelled through redemption or purchase, itemized by classes
and series.
(c) The aggregate number
of issued shares, itemized by classes and series, after giving effect to much
cancellation.
(d) The amount, expressed
in dollars, of the stated capital of the corporation after giving effect to such
cancellation.
(e) If the Articles of
Incorporation provide that the cancelled shares shall not be reissued, the
number of shares shall not be reissued, the number of shares which the
corporation will have authority to issue itemized by classes and series, after
giving effect to such cancellation.
Duplicate originals of
such statement shall be delivered to the Secretary. If the Secretary finds that
such statement conforms to law, he shall, when all fees and franchise taxes 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 the corporation or its representative. Upon the filing
of such statement of cancellation, the stated capital of the corporation shall
be deemed to be reduced by the shares so cancelled. Nothing contained in this
section shall be construed to forbid a cancellation of shares or a reduction
of stated capital in any other manner permitted by this Title.
Section XIII.311. Cancellation of Other Reacquired Shares
A corporation may at any
time, by resolution of its board of directors, cancel all or any part of the
shares of the corporation of any class reacquired by it, other than redeemable
shares redeemed or purchased, and in such event a statement of cancellation
shall be filed as provided in this section. The statement of cancellation 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 set forth:
(a) The name of the
corporation.
(b) The number of
reacquired shares cancelled by resolution duly adopted by the board of
directors, itemized by classes and series, and the date of its adoption.
(c) The aggregate number
of issued shares, itemized by classes and series, after giving effect to such
cancellation.
(d) The amount, expressed
in dollars, of the stated capital of the corporation after giving effect to such
cancellation.
(e) If the articles of
incorporation provide that the cancelled shares shall not be reissued, the
number of shares which the corporation will have authority to issue itemized by
classes and series, after giving effect to such cancellation.
Duplicate originals of
such statement shall be delivered to the Secretary. If the Secretary finds that
such statement conforms to law, he shall, when all fees and franchise taxes have
been paid as in this Title prescribed:
(1) Endorse on each of
such duplicate originals the word "File," 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 the corporation or its representative. Upon the filing
of such statement of cancellation, the stated capital of the corporation shall
be deemed to be reduced by that part of the stated capital which was, at the
time of such cancellation, represented by the shares so cancelled, and the
shares so cancelled shall be restored to the status of authorized but unissued
shares. Nothing contained in This section shall be construed to forbid a
cancellation of shares or a reduction of stated capital in any other manner
permitted by this Title.
Section XlV.312. Reduction of Stated Canital in Certain Cases
(a) A reduction of the
stated capital of a corporation, where such reduction is not accompanied by any
action requiring an amendment of the Articles of Incorporation and not
accompanied by a cancellation of shares, may be made in the following manner:
(1) The board of
directors shall adopt a resolution setting forth the amount of the proposed
reduction and the manner in which the reduction shall be effected, and
directing that the question of such reduction be submitted to a vote at a
meeting of shareholders, which may be either an annual or a special meeting.
(2) Written notice,
stating that the purpose or one of the purposes of such meeting is to consider
the question of reducing the stated capital of the corporation in the amount
and manner proposed by the board of directors, 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.
(3) At such meeting a
vote of the shareholder entitled to vote thereon shall be taken on the
question of approving the proposed reduction of stated capital, which shall
require for its adoption the affirmative vote of the holders of a majority of
the shares entitled to vote thereon.
(b) When a reduction of
the stated capital of a corporation has been approved as provided in this
section, a statement shall be executed in duplicate by the corporation by its
president of a vice president and by its secretary or an assistant secretary,
and verified by one of the officers signing such statement, and shall set forth:
(1) The name of the
corporation.
(2) A copy of the
resolution of the shareholders approving such reduction, and the date of its
adoption.
(3) The number of
shares outstanding, and the number of shares entitled to vote thereon.
(4) The number of
shares voted for and against such reduction, respectively.
(5) A statement of the
manner in which such reduction is effected, and a statement, expressed in
dollars, of the amount of stated capital of the corporation after giving
effect to such reduction. Duplicate originals of such statement shall be
delivered to the Secretary. If the Secretary finds that such statement
conforms to law, he shall, when all fees and franchise taxes have been paid as
in this Title prescribed:
(i) Endorse on each
of such duplicate originals the word "Filed," and the month, day
and year of the filing thereof.
(ii) File one of such
duplicate originals in his office.
(iii) Return the
other duplicate original to the corporation or its representative. Upon the
filing of such statement, the stated capital of the corporation shall be
reduced as therein set forth. No reduction of stated capital shall be made
under The provisions of this section which would reduce the amount of the
aggregate stated capital of the corporation to an amount equal to or less
than the aggregate preferential amounts payable upon all issued shares
having a preferential right in the assets of the corporation in the event of
involuntary liquidation, plus the aggregate par value of all issued shares
having a par value but no preferential right in the assets of the
corporation in the event of involuntary liquidation.
Section XV.313. SDecial Provisions Relating to Surolus and Reserves
The surplus, if any,
created by or arising out of a reduction of the stated capital of a corporation
shall be capital surplus. The capital surplus 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 earned surplus of the corporation be transferred to capital
surplus. A corporation may, by resolution of its board of directors, apply any
part or all of its capital surplus to the reduction or elimination of any
deficit arising from losses, however incurred, but only after first eliminating
the earned surplus, if any, of the corporation by applying such losses against
earned surplus and only to the extent that such losses exceed the earned
surplus, if any. Each such application of capital surplus shall to the extent
thereof, effect a reduction of capital surplus.
A corporation may, by
resolution of its board of directors, create a reserve or reserves out of its
earned surplus for any proper purpose or purposes, and may abolish any such
reserve in The same manner. Earned surplus of the corporation to the extent so
reserved shall not be available for the payment of dividends or other
distributions by the corporation except as expressly permitted by this Title.
I. CHAPTER FOUR
II. MERGER AND CONSOLIDATION
Section 111.401. Procedure for Merger
Any two or more domestic
corporations may merge into one of such corporation pursuant to a plan of a
merger approved in the manner provided in this Title. The Board of Directors of
each corporation shall, by resolution adopted by each such board, approve a plan
of merger setting forth:
(a) The names of the
corporations proposing to merge, and the name of the corporation into which they
propose to merge, which is hereinafter designated as the surviving corporation.
(b) The terms and
conditions of the proposed merger.
(c) The manner and basis
of converting the shares of each corporation into shares, obligations or other
securities of the surviving corporation or of any other corporation or, in whole
or in part, into cash or other property.
(d) A statement of any
changes in the articles of incorporation of the surviving corporation to be
effected by such merger.
(e) Such other provisions
with respect to the proposed merger as are deemed necessary or desirable.
Section IV.402. Procedure for Consolidation
Any two or more domestic
corporations may consolidate into a new corporation pursuant to a plan of
consolidation approved in The manner provided in this Title. The board of
directors of each corporation shall, by a resolution adopted by each such board,
approve a plan of consolidation setting forth:
(a) The names of the
corporations proposing to consolidate, and the name of the new corporation into
which they propose to consolidate, which is hereinafter designated as the new
corporation.
(b) The terms and
conditions of the proposed consolidation.
(c) The manner and basis
of converting the shares of each corporation into shares, obligations or other
securities of the new corporation or of any corporation or, in whole or in part,
into cash or other property.
(d) With respect to the
new corporation, all of the statements required to be set forth in articles of
incorporation for corporations organized under this Title.
(e) Such other provisions
with respect to the proposed consolidation as are deemed necessary or desirable.
Section V.403. Approval by Shareholders
The board of directors of
each corporation, upon approving such plan of merger or plan of consolidation,
shall, by resolution, direct that the plan be submitted to a vote at a meeting
of shareholders, which may be either an annual or a special meeting. Written
notice shall be given to each shareholder of record, whether or not entitled to
vote at such meeting, not less than twenty days before such meeting, in the
matter provided in this Title for the giving of notice of meetings of
shareholders, and, whether the meeting be an annual or a special meeting, shall
state that the purpose or one of the purposes is to consider the proposed plan
of merger or consolidation. A copy or a summary of the plan of merger or
consolidation, as the case may be, shall be included in or enclosed with such
notice.
At each such meeting, a
vote of the shareholders shall be taken on The proposed plan of merger or
consolidation. The plan of merger or consolidation shall be approved upon
receiving the affirmative vote of the holders of a majority of the shares
entitled to vote thereon of each such corporation, unless any class of shares of
any such corporation is entitled to vote thereon of each such corporation,
unless any class of shares of any such corporation is entitled to vote thereon
as a class, in which event, as to such corporation, the plan of merger, or
consolidation shall be approved upon receiving the affirmative vote of the
holders of a majority of the shares of each class of shares entitled to vote
thereon. Any class of shares of any such corporation shall be entitled to vote
as a class if the plan of merger or consolidation, as the case may be, contains
any provision which, if contained in a proposed amendment to articles of
incorporation, would entitle such class of shares to vote as a class. After such
approval by a vote of the shareholders of each corporation, and at any time
prior to the filing of the articles of merger or consolidation, the merger or
consolidation may be abandoned pursuant to provisions therefor, if any, set
forth in the plan of merger or consolidation.
Section VI.404. Articles of Merger or Consolidation
Upon such approval,
articles of merger or articles of consolidation shall be executed in duplicate
by each corporation by its president or vice president and by its secretary or
an assistant secretary, and verified by one of the officers of each corporation
signing such articles, and shall set forth:
(a) The plan of merger or
the plan of consolidation.
(b) As to each
corporation, the number of shares outstanding, and, if the shares of any class
are entitled to vote as a class, the designation and number of outstanding
shares of each such class.
(c) As to each
corporation, the number of shares voted for and against such plan, respectively,
and, if the shares of any class are entitled to vote as a class the number of
shares of each class voted for and against such plan, respectively. Duplicate
originals of the articles of merger or articles of consolidation shall be
delivered to the Secretary. If the Secretary finds that such articles conform to
law, he shall, when all fees and franchise taxes 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) Issue a certificate
of merger or a certificate of consolidation to which he shall affix the other
duplicate original. The certificate of merger or certificate of consolidation,
together with the duplicate original of the articles of merger or articles of
consolidation affixed thereto by the Secretary, shall be returned to the
surviving or new corporation, as the case may be, or its representative.
Section VII.405. Merger of Subsidiary Corporation
(a) Any corporation
owning at least ninety percent of the outstanding shares of each class of
another corporation may merge such other corporation into itself without
approval by a vote of the shareholders of either corporation. Its board of
directors shall, by resolution, approve a plan of merger setting forth:
(1) The name of the
subsidiary corporation and the name of the corporation owning at least ninety
percent of its shares, which is hereinafter designated as the surviving
corporation.
(2) The manner and
basis of converting the shares of the subsidiary corporation into shares,
obligations or other securities of the surviving corporation or of any other
corporation or, in whole or in part, into cash or other property. A copy of
such plan of merger shall be mailed to each shareholder of record of the
subsidiary corporation.
(b) Articles of merger
shall be executed in duplicate by the surviving corporation by its president or
a vice president and by its secretary or an assistant secretary, and verified by
one of its officers signing such articles, and shall set forth:
(1) The plan of merger;
(2) The number of
outstanding shares of each class of the subsidiary corporation and the number
of such shares of each class owned by the surviving corporation; and
(3) The date of the
mailing to shareholders of the subsidiary corporation of a copy of the plan of
merger.
(c) On and after the
thirtieth day after the mailing of a copy of the plan of merger to shareholders
of the subsidiary corporation or upon the waiver thereof by the holders of all
outstanding shares duplicate originals of the articles of merger shall be
delivered to the Secretary. If the Secretary finds that such articles conform to
law, he shall, when all fees and franchise taxes 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, and
(3) Issue a certificate
of merger to which he shall affix the other duplicate original. The
certificate of merger, together with the duplicate original of the articles of
merger affixed thereto by tile Secretary, shall be returned to The surviving
corporation or its representative.
Section VIII.406. Effect of Merger of Consolidation
Upon the issuance of the
certificate of merger or the certificate of consolidation by the Secretary, the
merger or consolidation shall be effected. When such merger or consolidation has
been effected:
(a) The several
corporations parties to the plan of merger or consolidation shall be a single
corporation, which, in the case of a merger, shall be that corporation
designated in the plan of merger as the surviving corporation, and, in the case
of a consolidation, shall be the new corporation provided for in The plan of
consolidation.
(b) The separate
existence of all corporations parties to the plan of merger or consolidation,
except the surviving or new corporation, shall cease.
(c) Such surviving or new
corporation shall have all the rights, privileges, immunities and powers and
shall be subject to all the duties an liabilities of a corporation organized
under this Title.
(d) Such surviving or new
corporation shall thereupon and thereafter possess all the rights, privileges,
immunities, and franchises, of a public as well as of a private nature, of each
of the merging or consolidating corporations; and all property, real, personal
and mixed, and all debts due on whatever account, including subscriptions to
shares, and all other choices in action, and all and every other interest of or
belonging to or due to each of the corporations so merged or consolidated, shall
be taken and deemed to transferred to and vested in such single corporation
without further act or deed; and the title to any real estate, or any interest
therein, vested in any of such corporations shall not revert or be in any way
impaired by reason of such merger or consolidation.
(e) Such surviving or new
corporation shall thencei$orth be responsible and liable for all the liabilities
and obligations of each of the corporations so merged or consolidated; and any
claim existing or action or proceeding pending by or against any of such
corporations may be prosecuted as if such merger or consolidation had not taken
place, or such surviving or new corporation may be substituted in its place.
Neither the rights of creditors nor any liens upon the property of any such
corporation shall be impaired by such merger or consolidation.
(f) In the case of a
merger, the articles of incorporation of the surviving corporation shall be
deemed to be amended to the extent, if any, that changes in its articles of
incorporation are stated in the plan of merger; and, in the case of a
consolidation, the statements set forth in the articles of consolidation and
which are required or permitted to be set forth in the articles of incorporation
of corporations 6rganized under this Title shall be deemed to be the original
articles of incorporation of the new corporation.
Section IX.407. Merger or Consolidation of Domestic and Foreign
Corporations.
One or more foreign
corporations and one or more domestic corporations may be merged or consolidated
in the following manner, if such merger or consolidation is permitted by the
laws of the state, tribe, or country under which each such foreign corporation
is organized:
(a) Each domestic
corporation shall comply with the provisions of this Title with respect to the
merger or consolidation, as the case may be, of domestic corporations and each
foreign corporation shall comply with the applicable provisions of the laws of
the state under which it is organized.
(b) If the surviving or
new corporation, as the case may be, is to be governed by the laws of any state,
tribe, or country other than the Absentee Shawnee Tribe of Oklahoma, it shall
comply with the provisions of this Title with respect to foreign corporations if
it is to transact business in this jurisdiction, and in every case it shall file
with the Secretary of this Tribe:
(1) An agreement that
it may be served with process in this jurisdiction in any proceeding for the
enforcement of any obligations of any domestic corporation which is a party to
such merger or consolidation and in any proceeding for the enforcement of The
rights of a dissenting shareholder of any such domestic corporation against
the surviving or new corporation;
(2) An irrevocable
appointment of the Secretary of this Tribe as its agent to accept service of
process in any proceeding; and
(3) An agreement that
it will promptly pay to the dissenting shareholders of any such domestic
corporation the amount, if any, to which they shall be entitled under the
provisions of this Title with respect to the rights of dissenting
shareholders. The effect of such merger or consolidation shall be the same as
in the case of the merger or consolidation of domestic corporations, if the
surviving or new corporation is to be governed by The laws of this
jurisdiction. If the surviving or new corporation is to be governed by the
laws of any state, tribe, or country other than the Absentee Shawnee Tribe of
Oklahoma, the effect of such merger or consolidation shall be the same as in
the case of the merger or consolidation of domestic corporations except
insofar as the laws of such other state, tribe, or country provide otherwise.
At any time prior to the filing of The articles of merger or consolidation,
the merger or consolidation may be abandoned pursuant to provisions therefor,
if any, set forth in the plan of merger or consolidation.
I. CHAPTER FIVE
II. SALE OF ASSETS
Section III.501. Sale of Assets in Regular Course of Business and Mortgage
or Pledge of Assets
The sale, lease,
exchange, or other disposition of all, or substantially all, the property and
assets of a corporation in the usual and regular course of its business and the
mortgage or pledge of any or all property and assets of a corporation whether or
not in the usual and regular course of business may be made upon such terms and
conditions and for such consideration, which may consist in whole or in part of
cash or other property, including shares, obligations or other securities of any
other corporation, domestic or foreign, as shall be authorized by its board of
directors; and in any such case no authorization or consent of the shareholders
shall be required.
Section IV.502. Sale of Assets Other Than in Regular Course of Business
A sale, lease, exchange,
or other disposition of all, or substantially all, the property and assets, with
or without the good will, of a corporation; if not in the usual and regular
course of its business, may be made upon such terms and conditions and for such
consideration, which may consist in whole or in part of cash or other property,
including shares, obligations or other securities of any other corporation,
domestic or foreign, as may be authorized in the following manner:
(a) The board of
directors shall adopt a resolution recommending such sale, lease, exchange, or
other disposition and directing the submission thereof to a vote at a meeting of
shareholders, which may be either an annual or a special meeting.
(b) Written notice shall
be given to each shareholder of record, whether or not entitled to vote at such
meeting, not less than twenty days before such meeting, in the manner provided
in this Title for the giving of notice of meetings of shareholders, and, whether
the meeting be an annual or a special meeting, shall state that the purpose, or
one of the purposes is to consider the proposed sale, lease, exchange, or other
disposition.
(c) At such meeting The
shareholders may authorize such sale, lease, exchange, or other disposition and
may fix, or may authorize the board of directors to fix, any or all of The terms
and conditions thereof and the consideration to be received by the corporation
therefor. Such authorization shall require The affirmative vote of the holders
of a majority of the shares of the corporation entitled to vote thereon unless
any class of shares is entitled to vote Thereon as a class, in which event such
authorization shall require the affirmative vote of the holders of a majority of
the shares of each class of shares entitled to vote as a class Thereon and of
The total shares entitled to vote thereon.
(d) After such
authariiation by a vote of shareholders, the board of directors nevertheless, in
its discretion, may abandon such sale, lease, exchange, or other disposition of
assets, subject to The rights of third parties under any contracts relating
thereto, without further action or approval by shareholders.
Section V.503. Right of Shareholders to Dissent
Any shareholder of a
corporation shall have the right to dissent from any of the following corporate
actions:
(a) Any plan of merger or
consolidation to which the corporation is a party; or
(b) Any sale or exchange
of all or substantially all of the property and assets of the corporation not
made in the usual and regular course of its business, including a sale in
dissolution, but not including a sale pursuant to an order of a court having
jurisdiction in the premises or a sale for cash on terms requiring that all or
substantially all of the net proceeds of sale be distributed to the shareholders
in accordance with their respective interests within one year after The date of
sale. A shareholder may dissent as to less than all of the shares registered in
his name. In that event, his rights shall be determined as if the shares as to
which he has dissented and his other shares were registered in the names of
different shareholders. This section shall not apply to the shareholders of the
surviving corporation in a merger if a vote of the shareholders of such
corporation is not necessary to authorize such merger. Nor shall it apply to the
holders of shares of any class or series if the shares of such class or series
were registered on a national securities exchange on the date fixed to determine
the shareholders entitled to vote at the meeting of shareholders at which a plan
of merger or consolidation or a proposed sale or exchange of property and assets
is to be acted upon unless the Articles of Incorporation of the corporation
shall otherwise provide.
Section VI.504. Rights of Dissenting Shareholders
Any shareholder electing
to exercise such right of dissent shall file with the corporation, prior to or
at the meeting of shareholders at which such proposed corporate action is
submitted to a vote, a written objection to such proposed corporate action. If
such proposed corporate action be approved by the required vote and such
shareholder shall not have voted in favor thereof, such shareholder may, within
ten days after the date on which The vote was taken or if a corporation is to be
merged without a vote of its shareholders into another corporation, any of its
shareholders may, within fifteen days after the plan of such merger shall have
been mailed to such shareholders, make written demand on The corporation, or, in
the case of a merger or consolidation, on the surviving or new corporation,
domestic or foreign, for payment of the fair value of such shareholders shares,
and, if such proposed corporate action is effected, such corporation shall pay
to such shareholder, upon surrender of the certificate or certificates
representing such shares, in the fair value thereof as of the day prior to the
date on which the vote was taken approving the proposed corporate action,
excluding any appreciation or depreciation in anticipation of such corporate
action. Any shareholder failing to make demand within the applicable ten-day or
fifteen-day period shall be bound by the terms of the proposed corporate action.
Any shareholder making such demand shall thereafter be entitled only to payment
as in this section provided and shall not be entitled to vote or to exercise any
other rights of a shareholder.
No such demand may be
withdrawn unless the corporation shall consent thereto. If, however, such demand
shall be withdrawn upon consent, or if the proposed corporate action shall be
abandoned or rescinded or the shareholders shall revoke The authority to effect
such action, or if, in the case of a merger, on the date of the filing of the
articles of merger the surviving corporation is the owner of all the outstanding
shares of The other corporations, domestic and foreign, that are parties to the
merger, or if no demand or petition for the determination of fair value by The
court shall have been made or filed within the time provided in this section, or
if the court shall determine that such shareholder is not entitled to the relief
provided by this section, then the right of such shareholder to be paid the fair
value of his shares shall cease and his status as a shareholder shall be
restored, without prejudice to any corporate proceedings which may have been
taken during the interim. Within ten days after such corporate action is
effected, the corporation, or, in the case of a merger or consolidation, the
surviving or new corporation, domestic or foreign, shall give written notice
thereof to each dissenting shareholder who has made demand as herein provided,
and shall make a written offer to each such shareholder to pay for such shares
at a specified price deemed by such corporation to be fair value thereof. Such
notice and offer shall be accompanied by a balance sheet of the corporation the
shares of which the dissenting shareholder holds, as of the latest available
date and not more than twelve months prior to the making of such offer, and a
profit and loss statement of such corporation for the twelve months' period
ended on the date of such balance sheet. If within thirty days after the date on
which such corporate action was effected. the fair value of such shares is
agreed upon between any such dissenting shareholder and the corporation, payment
therefore shall be made within ninety days after the date on which such
corporate action was effected, upon surrender of The certificate or certificates
representing such shares. Upon payment of the agreed value the dissenting
shareholder shall cease to have any interest in such shares.
If within such period of
thirty days a dissenting shareholder and the corporation do not so agree, then
The corporation, within thirty days after receipt of written demand from any
dissenting shareholder given within sixty days after the date on which such
corporate action was effected, shall, or at its election at any time within such
period of sixty days may, file a petition in the Tribal court requesting that
the fair value of such shares be found and determined. If the corporation shall
fail to institute the proceeding as herein provided, any dissenting shareholder
may do so in the name of the corporation. All dissenting shareholders, wherever
residing, shall be made parties to the proceeding as an action against their
shares quasi in rem. A copy of the petition shall be served on each dissenting
shareholder who is a resident of this jurisdiction and shall be served by
registered or certified mail on each dissenting shareholder who is a
non-resident. Service on nonresidents shall also be made by publication as
provided bylaw. The jurisdiction of the court shall be plenary and exclusive.
All shareholders who are parties to the proceeding shall be entitled to judgment
against the corporation for the amount of the fair value of their shares. The
court may, if it so elects, appoint one or more persons as appraisers to receive
evidence and recommend a decision - on the question of fair value. The
appraisers shall have such power and authority as shall be specified in The
order of their appointment or an amendment thereof. The judgment shall be
payable only upon and concurrently with the surrender to the corporation of The
certificate or certificates representing such shares. Upon payment of the
judgment, the dissenting shareholder shall cease to have any interest in such
shares. The judgment shall include an allowance for interest at such rate as the
court may find to be fair and equitable in all the circumstances, from the date
on which the vote was taken on the proposed corporate action to the date of
payment The costs and expense of any such proceeding shall be determined by the
court and shall be assessed against the corporation, but all or any part of such
costs and expenses may be apportioned and assessed as the court may deem
equitable against any or all of the dissenting shareholders who are parties to
the proceeding to whom the corporation shall have made an offer to pay for the
shares if the court shall find that the action of such shareholders in failing
to accept such offer was arbitrary or vexatious or not in good faith. Such
expenses shall include reasonable compensation for and reasonable expenses of
the appraisers, but shall exclude the fees and expenses of counsel for and
experts employed by any party; but if the fair value of the shares as determined
materially exceeds the amount which the corporation offered to pay therefor, or
if no offer was made, the court in its discretion may award to any shareholder
who is a party to the proceeding such sum as The court may determine to be
reasonable compensation to any expert or experts employed by the shareholder in
the proceeding. Within twenty days after demanding payment for his shares, each
shareholder demanding payment shall submit the certificate or certificates
representing his shares to the corporation for notation thereon that such demand
has been made. His failure to do so shall, at the option of the corporation,
terminate his rights under this section unless the court, for good and
sufficient cause shown, shall otherwise direct.
If shares represented by
a certificate on which notation has been so made shall be transferred, each new
certificate issued therefor shall bear similar notation, together with the name
of the original dissenting holder of such shares, and a transferee of such
shares shall acquire by such transfer no rights in the corporation other than
those which the original dissenting shareholder had after making demand for
payment of the fair value thereof. Shares acquired by a corporation as in The
case of other treasury shares, except that, in the case of a merger or
consolidation, they may be held and disposed of as the plan of merger or
consolidation may otherwise provide.
I. CHAPTER SIX
II. DISSOLUTION
Section III.601. Voluntary Dissolution by Incorporators
A corporation which has
not commenced business and which has not issued any shares, may be voluntarily
dissolved by its incorporators at any time in the following manner:
(a) Articles of
dissolution shall be executed in duplicate by a majority of the incorporators,
and verified by them, and shall set forth:
(1) The name of the
corporation.
(2) The date of
issuance of its certificate of incorporation.
(3) That none of its
shares has been issued.
(4) That the
corporation has not commenced business.
(5) That the amount, if
any, actually paid in on subscriptions for its shares, less any part thereof
disbursed for necessary expenses, has been returned to those entitled thereto.
(6) That no debts of
the corporation remain unpaid.
(7) That a majority of
the incorporators elect that the corporation be dissolved.
(b) Duplicate originals
of the articles of dissolution shall be delivered to the Secretary. If the
Secretary finds that the articles of dissolution conform to law, he shall, when
all fees and franchise taxes 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) Issue a certificate
of dissolution to which he shall affix the other duplicate original. The
certificate of dissolution, together with the duplicate original of the
articles of dissolution affixed thereto by the Secretary, shall be returned to
the incorporators or their representative. Upon the issuance of such
certificate of dissolution by the Secretary, the existence of the corporation
shall cease.
Section IV.602. Voluntary Dissolution by Consent of Shareholders
A corporation may be
voluntarily dissolved by the written consent of all of its shareholders. Upon
the execution of such written consent, a statement of intent to dissolve shall
be executed in duplicate by the corporation by its president or a vice president
and by its secretary of an assistant secretary, and verified by one of The
officers signing such statement, which statement shall be set forth:
(a) The name of The
corporation.
(b) The names and
respective addresses of its officers.
(c) The names and
respective addresses of its directors.
(d) A copy of the written
consent signed by all shareholders of the corporation.
(e) A statement That such
written consent has been signed by all shareholders of the corporation or sired
in their names by their attorneys thereunto duly authorized.
Section V.603. Voluntary Dissolution by Title of Corporation
A corporation may be
dissolved by the act of the corporation, when authorized in the following
manner:
(a) The board of
directors shall adopt a resolution recommending that the corporation be
dissolved, and directing that the question of such dissolution be submitted to a
vote at a meeting of shareholders, which may be either an annual or a special
meeting.
(b) Written notice shall
be given to each shareholder of record entitled to vote at such meeting within
the time and in the manner provided in this Title for the giving of notice of
meetings of shareholders, and, whether the meeting be an annual or special
meeting, shall state that the purpose, or one of the purposes, of such meeting
is to consider The advisability of dissolving the corporation.
(c) At such meeting a
vote of shareholders entitled to vote thereat shall be taken on a resolution to
dissolve the corporation. Such resolution shall be adopted upon receiving the
affirmative vote of the holders of a majority of the shares of the corporation
entitled to vote thereon, unless any class of shares is entitled to vote thereon
as a class, in which event the resolution 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.
(d) Upon the adoption of
such resolution, a statement of intent to dissolve 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, which statement shall set forth:
(1) The name of the
corporation.
(2) The names and
respective address of its officers.
(3) The names and
respective addresses of its directors.
(4) A copy of the
resolution adopted by the shareholders authorizing the dissolution of the
corporation.
(5) The number of The
shares outstanding, and, if the shares of any class are entitled to vote as a
class, the designation and number of outstanding shares of each such class.
(6) The number of
shares voted for and against the resolution, respectively, and, if the shares
of any class are entitled to vote as a class, the number of shares of each
such class voted for and against the resolution, respectively.
Section VI.604. Filing of Statement of Intent to Dissolve
Duplicate originals of
the statement of intent to dissolve, whether by consent of shareholders or by
act of The corporation, shall be delivered to the Secretary. If the Secretary
finds that such statement conforms 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) Return The other
duplicate original to the corporation or its representative.
Section VII.605. Effect of Statement of Intent to Dissolve
Upon the filing by the
Secretary of State of a statement of intent to dissolve, whether by consent of
shareholders or by act of the corporation, the corporation shall cease to carry
on its business, except insofar as may be necessary for the winding up Thereof,
but its corporate existence shall continue until a certificate of dissolution
has been issued by the Secretary or until a decree dissolving the corporation
has been entered by the Tribal Court as in this Title provided.
Section VIII.606. Procedure After Filing of Statement of Intent to
Dissolve
After the filing by the
Secretary of a statement of intent to dissolve;
(a) The corporation shall
immediately cause notice thereof to be mailed to each known creditor of the
corporation.
(b) The corporation shall
proceed to collect its assets, convey and dispose of such of its properties as
are not to be distributed in kind to its shareholders, pay, satisfy and
discharge its liabilities and obligations and do all other acts required to
liquidate its business and affairs, and, after paying or adequately providing
for the payment of all its obligations, distribute the remainder of its assets,
either in cash or in kind, among its shareholders according to their respective
rights and interests.
(c) The corporation, at
any time during the liquidation of its business and affairs, may make
application to the court to have the liquidation continued under the supervision
of the court as provided in this Title.
Section IX.607. Revocation of Voluntary Dissolution Proceedings by Consent
of Shareholders
By the written consent of
all of its shareholders, a corporation may, at any time prior to the issuance of
a certificate of dissolution by the Secretary, revoke voluntary dissolution
proceedings .theretofore taken, in the following manner:
Upon the execution of
such written consent, a statement of revocation of voluntary dissolution
proceedings 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, which statement shall set forth:
(a) The name of the
corporation.
(b) The names and
respective addresses of its officers.
(c) The names and
respective addresses of its directors.
(d) A copy of The written
consent signed by all shareholders of the corporation revoking such voluntary
dissolution proceedings.
(e) That such written
consent has been signed by all shareholders of the corporation or signed in
their names by their attorneys thereunto duly authorized.
Section X.608. Revocation of Voluntary Dissolution Proceedings by Act of
Corporation
By the act of the
corporation, a corporation may, at any time prior to the issuance of a
certificate of dissolution by the Secretary, revoke voluntary dissolution
proceedings theretofore taken, in the following manner:
(a) The board of
directors shall adopt a resolution recommending that the voluntary dissolution
proceedings be revoked, and directing that the question of such revocation be
submitted to a vote at a special meeting of shareholders.
(b) Written notice,
stating that the purpose or one of the purposes of such meeting is to consider
the advisability of revoking this voluntary dissolution proceedings, shall be
given to each shareholder of record entitled to vote at such meeting within the
time and in the manner provided in this Title for the giving of notice of
special meetings of shareholders.
(c) At such meeting a
vote of the shareholders entitled to vote thereat shall be taken on a resolution
to revoke the voluntary dissolution proceedings, which shall require for its
adoption the affirmative vote of the holders of a majority of the shares
entitled to vote thereon.
(d) Upon the adoption of
such resolution, a statement of revocation of voluntary dissolution proceedings
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, which statement shall set forth:
(1) The name of the
corporation.
(2) The names and
respective addresses of its officers.
(3) The names and
respective addresses of its directors.
(4) A copy of the
resolution adopted by the shareholders revoking the voluntary dissolution
proceedings.
(5) The number of
shares outstanding.
(6) The number of
shares voted for and against the resolution, respectively.
Section XI.609. Filing of Statement of Revocation of Voluntary Dissolution
Proceedings
Duplicate originals of
the statement of revocation of voluntary dissolution proceedings, whether by
consent of shareholders or by an act of the corporation, shall be delivered to
the Secretary. If the Secretary finds that such statement conforms 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 the office.
(c) Return the other
duplicate original to the corporation or its representative.
Section XII.610. Effect of Statement of Revocation of Voluntary
Dissolution Proceedings
Upon the filing by the
Secretary of a statement of revocation of voluntary dissolution proceedings,
whether by consent of shareholders or by act of the corporation, the revocation
of the voluntary dissolution proceedings shall become effective and the
corporation may again carry on its business.
Section XIII.611. Articles of Dissolution
If voluntary dissolution
proceedings have not been revoked, then when all debts, liabilities and
obligations of the corporation have been paid and discharged, or adequate
provision has been made therefor, and all of the remaining property and assets
of the corporation have been distributed to its shareholders, articles of
dissolution 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, which statement shall set forth:
(a) The name of the
corporation.
(b) That The Secretary
has theretofore filed a statement of intent to dissolve the corporation, and the
date on which such statement was filed.
(c) That all debts,
obligations and liabilities of the corporation have been paid and discharged or
that adequate provision has been made therefor.
(d) That all the
remaining property and assets of the corporation have been distributed among its
shareholders in accordance with their respective rights and interests.
(e) That There are no
suits pending against the corporation in any court, or that adequate provision
has been made for the satisfaction of any judgment, order or decree which may be
entered against it in any pending suit.
Section XIV.612. Filing of Articles of Dissolution
Duplicate originals of
such articles of dissolution shall be delivered to the Secretary. If the
Secretary finds that such articles of dissolution 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 dissolution to which he shall affix the other duplicate original. The
certificate of dissolution, together with the duplicate original of the articles
of dissolution affixed thereto by the Secretary, shall be returned to the
representative of the dissolved corporation. Upon the issuance of such
certificate of dissolution the existence of the corporation shall cease, except
for the purpose of suites, other proceedings and appropriate corporate action by
shareholders, directors and officers as provided in this Title.
Section XV.613. Involuntary Dissolution
A corporation may be
dissolved involuntarily by a decree of the court in an action filed by the
Tribal Prosecutor when it is established that:
(a) The corporation has
failed to file its annual report within the time required by this Title, or has
failed to pay its franchise tax on or before the first day of August of the year
in which such franchise tax becomes due and payable; or
(b) The corporation
procured its articles of incorporation through fraud; or
(c) The corporation has
continued to exceed or abuse the authority conferred upon it by law; or
(d) The corporation has
failed for thirty days to appoint and maintain a registered agent within the
reservation; or
(e) The corporation has
failed for thirty days after change of its registered office or registered agent
to file in the office of the Secretary a statement of such change.
Section XVI.614. Notification to Prosecutor
The secretary, on or
before the last day of December of each year, shall certify to the Prosecutor,
the names of all corporations which have failed to file their annual reports or
to pay franchise taxes in accordance with the provisions of this Title, together
with the facts pertinent thereto. He shall also certify, from time to time, the
names of all corporations which have given other cause for dissolution as
provided in this Title, together with the facts pertinent thereto. Whenever the
Secretary shall certify the name of a corporation to the Prosecutor as having
given any cause for dissolution, the Secretary having given any cause for
dissolution, the Secretary shall concurrently mail to the corporation at its
registered office a notice that such certification has been made. Upon the
receipt of such certification, the Prosecutor shall file an action in the name
of the Tribe against such corporation for its dissolution. Every such
certificate fort the Secretary to the Prosecutor pertaining to The failure of a
corporation to file an annual report or pay a franchise tax shall be taken and
received in all courts as prima facie evidence of the facts therein stated. If,
before action is filed, the corporation shall file its annual report or pay its
franchise tax, together with all penalties thereon, or shall appoint or maintain
a registered agent as provided in this Title, or shall file with the Secretary
the required statement of change of registered office or registered agent such
fact shall be forthwith certified by the Secretary to the Prosecutor and he
shall not file an action against such corporation for such cause. If, after
action is filed, the corporation shall file its annual report or pay its
franchise tax, together with all penalties thereon, or shall appoint or maintain
a registered agent as provided in this Title, or shall file with the Secretary,
the required statement of change of registered office or registered agent, and
shall pay the costs of such action, the action for such cause shall abate.
Section XVII.615. Venue and Process
Every action for The
involuntary dissolution of a corporation shall be commenced by the Prosecutor in
the Tribal court. Summons shall issue and be served as in other civil actions.
If process is returned not found, the Prosecutor shall cause publication to be
made as in other civil cases in some newspaper published in a legal newspaper,
containing a notice of the pendency of such action, the title of the court, the
title of the action, and the date on or after which default may be entered. The
Prosecutor may include in one notice the names of any number of corporations
against which actions are then pending in The same court. The Prosecutor shall
cause a copy of such notice to be mailed to the corporation at its registered
office within ten days after the first publication thereof. The certificate of
the Prosecutor of the mailing of such notice shall be prima facie evidence
thereof. Such notice shall be published once, and publication thereof may begin
at any time after the summons has been returned. Unless a corporation shall have
been served with summons, no default shall be taken against it earlier than
thirty days after the publication of such notice.
Section XVIII.616. Jurisdiction of Court to Liauidate Assets and Business
of Cornoration
The Tribal courts shall
have full power to liquidate the assets and business of a corporation;
(a) In an action by a
shareholder when it is established:
(1) That the directors
are deadlocked in the management of the corporate affairs and the shareholders
are unable to break the deadlock, and that irreparable injury to the
corporation is being suffered or is threatened by reason thereof; or
(2) That the acts of
the directors or those in control of the corporation are illegal, oppressive
or fraudulent; or
(3) That the
shareholders are deadlocked in voting power, and have failed, for a period
which includes at least two consecutive annual meeting dates, to elect
successors to directors whose terms have expired or would have expired upon
the election of their successors; or
(4) That the corporate
assets are being misapplied or wasted.
(b) In an action by a
creditor:
(1) When the claim of
the creditor has been reduced to judgment and an execution thereon returned
unsatisfied and it is established that the corporation is insolvent; or
(2) When the
corporation has admitted in writing that the claim of the creditor is due and
owing and it is established that the corporation is insolvent.
(c) Upon application by a
corporation which has filed a statement of intent to dissolve, as provided in
this Title, to have its liquidation continued under the supervision of the
court.
(d) When an action has
been filed, by the Prosecutor - to dissolve a corporation and it is established
that liquidation of its business and affairs should precede The entry of a
decree of dissolution. It shall not be necessary to make shareholders parties to
any such action or proceeding unless relief is sought against them personally.
Section XIX.617. Procedure in Liquidation of Corporation by Court
In proceedings to
liquidate the assets and business of a corporation the court shall have power to
issue injunctions, to appoint a receiver or receivers pendente lite, which such
power and duties as the court, from time to time, may direct, and to take such
other proceedings as may be requisite to preserve the corporate assets wherever
situated, and carry on the business of the corporation until a full hearing can
be had. After a hearing had upon such notice as the court may direct to be given
to all parties to the proceedings and to any other parties in interest
designated by the court, the court may appoint a liquidating receiver or
receivers with authority to collect the assets of the corporation, including all
amounts owing to the corporation, by subscribers on account of any unpaid
portion of the consideration for the issuance of shares. Such liquidating
receiver or receivers shall have authority, subject to the order of the court,
to sell, convey and dispose of all or any part of the assets of the corporation
wherever situated, either at public or private sale. The assets of the
corporation or the proceeds resulting from a sale, conveyance or other
disposition Thereof shall be applied to the expenses of such liquidation and to
the payment of the liabilities and obligations of the corporation, and any
remaining assets or proceeds shall be distributed among its shareholders
according to their respective rights and interests. The order appointing such
liquidating receiver or receivers shall state their powers and duties. Such
powers and duties may be increased or diminished at any time during the
proceedings. The court shall have power to allow from time to time as expenses
of the liquidation compensation to the receiver or receivers and to attorneys in
the proceeding, to direct the payment thereof out of the assets of the
corporation or the proceeds of any sale or disposition of such assets. A
receiver of a corporation appointed under the provisions of this section shall
have authority to sue and defend in all courts in his own name as receiver of
such corporation. The court appointing such receiver shall have exclusive
jurisdiction of the corporation arid its property, wherever situated.
Section XX.618. Qualifications of Receivers
A receiver shall in all
cases be a natural person or a corporation authorized to act as receiver, which
corporation may be a domestic corporation or a foreign corporation authorized to
transact business in this jurisdiction, and shall in all cases give such bond as
the court may direct with such sureties as the court may require.
Section XXI.619. Filing of Claims in Liauidation Proceedings
In proceedings to
liquidate the assets and business of a corporation the court may require all
creditors of The corporation to file with the clerk of the court or with the
receiver, in such form as the court may prescribe, proofs under oath of their
respective claims. If the court requires the filing of claims it shall fix a
date, which shall be not less than four months from the date of the order, as
The last day for the filing of claims, and shall prescribe the notice that shall
be given to creditors and claimants of the date so fixed. Prior to the date so
fixed, the court may extend the time for the filing, of claims. Creditors and
claimants failing to file proofs of claim on or before. the date so fixed may be
barred, by order of court from participating in the distribution of the assets
of the corporation.
Section XXII.620. Discontinuance of Liquidation Proceedings
The liquidation of the
assets and business of a corporation may be discontinued at any time during the
liquidation proceedings when it is established that cause for liquidation no
longer exists. In such event the court shall dismiss the proceedings and direct
the receiver to redeliver to the corporation all its remaining property and
assets.
Section XXIII.621. Decree of Involuntary Dissolution
In proceedings to
liquidate the assets and business of a corporation, when the costs and expenses
of such proceedings and all debts, obligations and liabilities of the
corporation shall have been paid and discharged and all of its remaining
property and assets distributed to its shareholders, or in case its property and
assets are not sufficient to satisfy and discharge such costs, expenses, debts
and obligations, all the property and assets have been applied so far as they
will go to their payment, the court shall enter a decree dissolving the
corporation, whereupon the existence of The corporation shall cease.
Section XXIV.622. Filing of Decree of Dissolution
In case the court shall
enter a decree dissolving a corporation, it shall be the duty of the clerk of
such court to cause a certified copy of the decree to be filed with the
Secretary for the filing thereof.
Section XXV.623. Deposit with Tribal Treasurer of Amount Due Certain
Shareholders
Upon the voluntary or
involuntary dissolution of a corporation, the portion of the assets
distributable to a creditor or shareholder who is unknown or cannot be found, or
who is under disability and there is no person legally competent to receive such
distributive portion, shall be reduced to cash and deposited with the Tribal
Treasurer and shall be paid over to such creditor or shareholder or to his legal
representative upon proof satisfactory to the Tribal Treasurer of his right
thereto. The Tribal Treasurer shall, in such cases, open and maintain a trust
account at any federal bank within this reservation or within The counties
adjacent to this reservation and hold such funds in the name of the Absentee
Shawnee Tribe in trust for such creditor or shareholder until payment. Bank
charges shall be paid from the assets in the account.
Section XXVLS24. Survival of Remedy After Dissolution
The dissolution of a
corporation either (1) by the issuance of a certificate of dissolution by the
Secretary, or (2) by a decree of court when the court has not liquidated the
assets and business of the corporation as provided in this Title, or (3) by
expiration of its period of duration, shall not take away or impair any remedy
available to or against such corporation, its directors, officers, or
shareholders, for any right or claim existing, or any liability incurred, prior
to such dissolution if action or other proceeding thereon is commenced within
two years after the date of such dissolution. Any such action or proceeding by
or against the corporation may be prosecuted or defended by the corporation in
its corporate name. The shareholders, directors and officers shall have power to
take such corporate or other action as shall be appropriate to protect such
remedy, right or claim. If such corporation was dissolved by the expiration of
its period of duration, such corporation may amend its articles of incorporation
at any time during such period of two years so as to extend its period of
duration.
I. CHAPTER SEVEN
II. FOREIGN CORPORATIONS
Section III.701. Admission Foreign Corporation
No foreign corporation
shall have the right to transact business in this jurisdiction until it shall
have procured a certificate of authority so to do from the Secretary. No foreign
corporation shall be entitled to procure a certificate of authority under this
Title to transact in this jurisdiction any business which a corporation
organized under this Title is not permitted to transact. A foreign corporation
shall not be denied a certificate of authority by reason of the fact that the
laws of the tribe, state, or country under which such corporation is organized
governing its organization and internal affairs differ from the laws of the
Absentee Shawnee Tribe, and nothing in this Title contained shall be construed
to authorize the Absentee Shawnee Tribe to regulate the organization or the
internal affairs of such corporation. Without excluding other activities which
may not constitute transacting business in this jurisdiction of foreign
corporation shall not be considered to be transacting business in this
jurisdiction, for The purposes of this Title, by reason of carrying on this
jurisdiction any one or more of the following activities:
(a) Maintaining or
defending any action or suit or any administrative or arbitration proceeding, or
effecting the settlement thereof or the settlement of claims or disputes.
(b) Holding meetings of
its directors and shareholders or carrying on other activities concerning its
internal affairs.
(c) Maintaining bank
accounts.
(d) Maintaining offices
or agencies for the transfer, exchange and registration of its securities, or
appointing and maintaining trustees or depositaries with relation to its
securities.
(e) Effecting sales
through independent contractors.
(f) Soliciting or
procuring orders, whether by mail or through employees or agents or otherwise,
where such orders require acceptance without jurisdiction before becoming
binding contracts.
(g) Creating as borrower
or lender, or acquiring, indebtedness or mortgages or other security interests
in real or personal property.
(h) Securing or
coflecting debts or enforcing any rights in property securing the same.
(i) Transacting any
business in interstate, international, or intertribal commerce. When such
business does not begin, end, or contain any separate transaction in this
jurisdiction.
(j) Conducting an
isolated transaction completed within a period of thirty days and not in the
course of a number of repeated transactions of like nature.
Section IV.702. Powers of Foreign Corporation
A foreign corporation
which shall have received a certificate of authority under this Title shall,
until a certificate of revocation or of withdrawal shall have been issued as
provided in this Title, enjoy the same, but no greater, rights and privileges as
a domestic corporation organized for The purposes set forth in the application
pursuant to which such certificate of authority is issued; and, except as in
this Title otherwise provided, shall be subject to the same duties,
restrictions, penalties and liabilities now or hereafter imposed upon a domestic
corporation of like character.
Section V.703. Corporate Name of Foreign Corporation
No certificate of
authority shall be issued to a foreign corporation unless the corporate name of
such corporation:
(a) Shall contain the
word "corporation," "company," "incorporated," or
"limited," or shafl contain an abbreviation of one of such words, or
such corporation shall, for use in this jurisdiction, add at the end of its name
one of such words or an abbreviation thereof.
(b) Shall not contain any
word or phrase 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 or that it is authorized or empowered to conduct the business of
banking or insurance, or professional services prohibited to corporation by This
Title.
(c) Shall not be the same
as, or deceptively similar to, the name of any domestic corporation existing
under the laws of the Absentee Shawnee Tribe of Oklahoma 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 name as provided in this Title except that this provision shall not apply if
the foreign corporation applying for a certificate of authority files with the
Secretary any one of the following:
(1) A resolution of its
board of directors adopting a fictitious name for use in transacting business
in this jurisdiction which fictitious name is not deceptively similar to the
name of any domestic corporation or of any foreign corporation authorized to
transact business in this jurisdiction or to any name reserved or registered
as provided in this Title, or
(2) 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
(3) A certified copy of
a final decree of a court of competent jurisdiction establishing the prior
right of such foregoing corporation to the use of such name of jurisdiction.
Section VI.704. Change of Name by Foreign Corporation
Whenever a foreign
corporation which is authorized to transact business in this jurisdiction shall
change its name to one under which a certificate of authority would not be
granted to it on application therefor, the certificate of authority of such
corporation shall be suspended and it shall not thereafter transact any business
in this jurisdiction until it has changed its name to a name which is available
to it under The laws of this jurisdiction or has otherwise compiled with the
provisions of this Title.
Section VII.705. 4pplieation for Certificate of Authority
A foreign corporation, in
order to procure a certificate of authority to transact business in This
jurisdiction, shall make application therefor to the Secretary, which
application shall set forth:
(a) The name of the
corporation and the state, tribe, or country under the laws of which it is
incorporated.
(b) If the name of the
corporation does not contain the word "corporation"
"company," "incorporated," or "limited," or does
not contain an abbreviation of one of such words, then the name of the
corporation with the word or abbreviation which it elects to add thereto for use
in this jurisdiction.
(c) The date of
incorporation and the period of duration of the corporation.
(d) The address of the
principal office of the corporation in the state, tribe, or country under the
laws of which it is incorporated.
(e) The address of the
proposed registered office of the corporation in this reservation, and the name
of its proposed registered agent in this reservation at such address.
(f) The purpose or
purposes of the corporation which it proposes to pursue in the transaction of
business in this jurisdiction.
(g) The names and
respective addresses of the directors and officers of the corporation.
(h) A statement of the
aggregate number of shares which the corporation has authority to issue,
itemized by classes, par value of shares, shares without par value, and series,
if any, within a class.
(i) A statementof the
aggregate number of issued shares itemized by classes, par value of shares,
shares without par value, and series, if any, within a class.
(j) A statement,
expressed in dollars, of the amount of stated capital of the corporation, as
defined in this Title.
(k) An estimate expressed
in dollars, of the value of all property to be owned by the corporation for the
following year, wherever located, and an estimate of The value of the property
of the corporation to be located within this jurisdiction during such year, and
an estimate expressed in dollars, of the gross amount of business which will be
transacted by the corporation during
(l) Such additional
information as may be necessary as appropriate in order to enable the Secretary
to determine whether such corporation is entitled to a certificate of authority
to transact business in this jurisdiction and to determine and assess the fees
and franchise taxes payable as in this Title prescribed.
Such application shall be
made on forms prescribed and furnished by the Secretary and 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 its officers signing
such application.
Section VIII.706. Filing of Application for Certificate of Authority
Duplicate originals of
the application of the corporation for a certificate of authority shall be
delivered to the Secretary, together with a copy of its Articles of
Incorporation and all amendments thereto, duly authenticated by the proper
officer of the state, tribe, or country under the laws of which it is
incorporated.
If the Secretary finds
That such application conforms to law, he shall, when all fees and franchise
taxes have been paid as in this Title prescribed:
(a) Endorse on each of
such documents the word "Filed," and the month, day and year of the
filing thereof.
(b) File in his office
one of such duplicate originals of the application and the copy of the Articles
of Incorporation and amendments thereto.
(c) Issue a certificate
of authority to transact business in this jurisdiction to which he shall affix
the other duplicate original application. The certificate of authority, together
with the duplicate original of the application affixed thereto by the Secretary,
shall be returned to the corporation or its representative.
Section IX.707. Effect of Certificate of Authority
Upon the issuance of a
certificate of authority by the Secretary, the corporation shall be authorized
to transact business in this jurisdiction, for those purposes set forth in its
application, subject, however, to the right of the Absentee Shawnee Tribe to
suspend or to revoke such authority as provided in this Title.
Section X.708. Registered Office and Registered Agent of Foreign
Corporation
Each foreign corporation
authorized to transact business in this jurisdiction shall have and continuously
maintain in this reservation:
(a) A registered office
which may be, but need not be the same as its place of business in this
jurisdiction, or
(b) A registered agent,
which agent may be either an individual resident in this jurisdiction 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.
Seetion XI.709. Change of Registered Office or Registered Agent__of
Corporation
A foreign corporation
authorized to transact business in this jurisdiction 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
then registered office 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 be changed, the name 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 a vice president, and verified
by him, and delivered to the Secretary. If the Secretary finds that such
statement conforms to the provisions of this Title, he shall file such statement
in his office, and upon such filing the change of address of the registered off
ice, or the appointment of a new registered agent, or both, as the case may be,
shall become effective. Any registered agent of a foreign corporation may resign
as such agent upon filing, a written notice thereof, executed in duplicate, with
the Secretary, who shall forthwith mail a copy thereof to the corporation at its
principal office in the state, tribe, or country under the laws of which it is
incorporated. The appointment of such agent shall terminate upon the expiration
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 this 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 XII.710. Service of Process on Foreign Corporation
The registered agent so
appointed by a foreign corporation authorized to transact business in this
jurisdiction 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 foreign corporation authorized to transact business in this
jurisdiction shall fail to appoint or maintain a registered agent in this
jurisdiction, or whenever any such registered agent cannot with reasonable
diligence be found at the registered office, or whenever the certificate of
authority of a foreign corporation shall be suspended or revoked, 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 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 such
copies thereof to be forwarded by registered mail, addressed to The corporation
at its principal office in The state, tribe, or country. 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 contained shall limit or affect the right to
serve any process, notice or demand, required or permitted by law to be served
upon a foreign corporation in any other manner now or hereafter permitted by
law.
Section XIII.711. Amendment to Articles of Incorporation of Poreipi
Corporation
Whenever the Articles of
Incorporation of a foreign corporation authorized to transact business in this
jurisdiction are amended, such foreign corporation shall, within thirty days
after such amendment becomes effective, file in the office of the Secretary a
copy of such amendment duly authenticated by the proper officer of the state, or
tribe, or country under the laws of which it is incorporated; but the filing
thereof shall not of itself enlarge or alter the purpose or purposes which such
corporation is authorized to pursue in the transaction of business in this
jurisdiction, nor authorize such corporation to transact business in this
jurisdiction under any other name than the name set forth in its certificate of
authority.
Section XIV.712. Merger of Foreign Corporation Authorized to Transact
Business in this Jurisdiction
Whenever a foreign
corporation authorized to transact business in this jurisdiction shall be a
party to a statutory merger permitted by the laws of the state, tribe, or
country under the laws of which it is incorporated, and such corporation shall
be the surviving corporation, it shall, within thirty days after such merger
becomes effective, file with the Secretary a copy of the articles of merger duly
authenticated by the proper officer of the state, tribe, or country under the
laws of which such statutory merger was effected; and it shall not be necessary
for such corporation to procure either a new or amended certificate of authority
to transact business in this jurisdiction unless the name of such corporation
desires to pursue in this jurisdiction other or additional purposes than those
which it is then authorized to transact in this jurisdiction.
Section XV.713. Amended Certificate of Authority
A foreign corporation
authorized to transact business in this jurisdiction shall procure an amended
certificate of authority in the event it changes its corporate name, or desires
to pursue in this jurisdiction other or additional purposes than those set forth
in its prior application for a certificate of authority, by making application
therefor to the Secretary. The requirements in respect to the form and contents
of such application, the manner of its execution, the filing of duplicate
originals thereof with the Secretary, the issuance of an amended certificate of
authority and the effect thereof shall be the same as in the case of an original
application for a certificate of authority.
Section XVI.714. Withdrawal of Foreign Corporation
A foreign corporation
authorized to transact business in this jurisdiction may withdraw from This
jurisdiction upon procuring from the Secretary a certificate of withdrawal. In
order to procure such certificate of withdrawal, such foreign corporation shall
deliver to the Secretary an application for withdrawal, which shall set forth:
(a) The name of the
corporation and the state, tribe, or country under the laws of which it is
incorporated.
(b) That the corporation
is not transacting business in this jurisdiction.
(c) That the corporation
surrenders its authority to transact business in this jurisdiction.
(d) That the corporation
revokes the authority of its registered agent in this jurisdiction to accept
service of process and consents that service of process in any action, suit or
proceeding based upon any cause of action arising in this jurisdiction during
the time the corporation was authorized to transact business in this
jurisdiction may thereafter to be made on such corporation by service thereof on
the Secretary.
(e) A post-office address
to which the Secretary may mail a copy of any process against the corporation
that may be served on him.
(f) A statement of the
aggregate number of shares which the corporation has authority to issue,
itemized by classes, par value shares, shares without par value, and series, if
any, within a class, as of The date of such application.
(g) A statement of the
aggregate number of issued shares, itemized by class, par value of shares,
shares without par value, and series, if any, within a class, as of the date of
such application.
(h) A statement,
expressed in dollars, of the amount of stated capital of the corporation, as of
the date of such application.
(i) Such additional
information as may be necessary or appropriate in order to enable the Secretary
to determine and assess any unpaid fees or franchise taxes payable by such
foreign corporation as in this Title prescribed.
The application for
withdrawal shall be made on forms prescribed and furnished by the Secretary and
shall be executed by the corporation by its president or vice president and by
its secretary or an assistant secretary, and verified by one of the officers
signing the application, or, if the corporation is in the hands of a receiver or
trustee, shall be executed on behalf of the corporation by such receiver or
trustee and verified by him.
Section XVIL715. Filing of Application for Withdrawal
Duplicate originals of
such application for withdrawal shall be delivered to the Secretary. If the
Secretary finds that such application conforms to the provisions of this Title,
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 withdrawal to which he shall affix the other duplicate originaL The
certificate of withdrawal, together with the duplicate original of the
application for withdrawal affixed thereto by the Secretary, shall be returned
to the corporation or its representative. Upon the issuance of such certificate
of withdrawal, the authority of the corporation to transact - business in this
jurisdiction shall cease.
Section XVIII.716. Revocation of Certificate of Authority
(a) The certificate of
authority of a foreign corporation to transact business in this jurisdiction may
be revoked by the Secretary upon the conditions prescribed in this section when:
(1) The corporation has
failed to file its annual report within the time required by this Title, or
has failed to pay any fees, franchise taxes or penalties prescribed by this
Title when they have become due and payable; or
(2) The corporation has
failed to appoint and maintain a registered agent in this reservation as
required by this Title; or
(3) The corporation has
failed, after change of its registered office or registered agent, file in the
office of the Secretary a statement of such change as required by This Title;
or
(4) The corporation has
failed to file in the office of the Secretary any amendment to its Articles of
Incorporation or any articles of merger within the time prescribed by this
Title; or
(5) A misrepresentation
has been made of any material matter in any application, report, affidavit, or
other document submitted by such corporation pursuant to this Title.
(b) No certificate of
authority of a foreign corporation shall be revoked by the Secretary unless:
(1) he shall have given
the corporation not less than sixty days notice thereof by mail addressed to
its registered office in this jurisdiction, and
(2) the corporation
shall fail prior to revocation to file such annual report, or pay such fees,
franchise taxes or penalties, or file the required statement of change of
registered agent or registered office, or file such articles of amendment or
articles of merger, or correct such misrepresentation.
Section XIX.717. Issuance of Certificate of Revocation
Upon revoking any such
certificate of authority, the Secretary shall:
(a) Issue a certificate
of revocation in duplicate.
(b) File one of such
certificat in his office.
(c) Mail to such
corporation at its registered office in this jurisdiction a notice of such
revocation accompanied by one of such certificates. Upon the issuance of such
certificate of revocation, the authority of the corporation to transact business
in This jurisdiction shall cease.
Section XX.718. Transacting Business Without Certificate of Authority
No foreign corporation
transacting business in this jurisdiction without a certificate of authority
shall be permitted to maintain any action, suit or proceeding in any court of
this jurisdiction, until such corporation shall have obtained a certificate of
authority. Nor shall any action, suit- or proceeding be maintained in any court
of this jurisdiction by any successor or assignee of such corporation on any
right, claim or demand arising out of the transaction of business by such
corporation in this jurisdiction, until a certificate or authority shall have
obtained by such corporation or by a corporation which has acquired all or
substantially all of its assets.
The failure of a foreign
corporation to obtain a certificate of authority to transact business in this
jurisdiction, shall not impair the validity of any contract or act of such
corporation, and shall not prevent such corporation from defending any action,
suit or proceeding in any court of this jurisdiction. A foreign corporation
which transacts business in this jurisdiction without a certificate or authority
shall be liable to the Absentee Shawnee Tribe, for the years or parts thereof
during which it transacted business in this jurisdiction without a certificate
of authority, in an amount equal to all fees and franchise taxes which would
have been imposed by this Title upon which would have been imposed by this Title
upon such corporation had it duly applied for and received a certificate of
authority to transact business in this jurisdiction as required by this Title
and thereafter filed all reports required by this Title, plus all penalties
imposed by this Title for failure to pay such fees and franchise taxes. The
Prosecutor or the Tribal Attorney shall bring proceedings to recover all amounts
due the Absentee Shawnee Tribe under the provisions of this section, and to
enjoin any further transaction of business by such foreign corporation within
this jurisdiction until such corporation complies with the laws of the Absentee
Shawnee Tribe of Oklahoma. The Tribe shall have a first lien upon any property
of a corporation which transacts business in this jurisdiction without a
certificate of authority to guarantee payment of all fees, taxes, and penalties
due to the Tribe, and upon the order of the court may seize and impound any
property or assets of such corporation which may be found within the Tribal
jurisdiction. Upon reduction of the Tribe's claims for fees, taxes, and
penalties due to judgment, the Tribe may take title to such property or assets
as have been seized and impounded in full liquidation of its claims, or may
execute upon such property and conduct a public sale thereof as in other
execution sales under the laws of the Absentee Shawnee Tribe, provided, that
within -ten days of the date judgment is entered such corporation may redeem and
secure the release of any property so seized or impounded by paying into court
the full amount of the judgment.
CHAPTER EIGHT
ANNUAL REPORTS
Section 801. Annual Report of Domestic and Eoreigp Corporation
Each domestic
corporation, and each foreign corporation authorized to transact business in
This jurisdiction, shall file, within the time prescribed by this Title, an
annual report setting forth:
(a) The name of the
corporation and the state, tribe, or country under the laws of which it is
incorporated.
(b) The address of the
registered office of the corporation in this jurisdiction, and the name of its
registered agent in this jurisdiction at such address, and, in case of a foreign
corporation, the address of its principal office in the state, tribe, or country
under the laws of which it is incorporated.
(c) A brief statement of
the character of the business in which the corporation is actually engaged in
this jurisdiction.
(d) The names and
respective address of the directors and officers of the corporation.
(e) A statement of the
aggregate number of shares which the corporation has authority to issue,
itemized by classes, par value of shares, shares without par value, and series,
if any, within a class.
(f) A statement of the
aggregate number of issued shares, itemized by classes, par value of shares,
shares without par value, and series, if any, within a class.
(g) A statement,
expressed in dollars, of the amount of stated capital of the corporation, as
defined in this Title.
(h) A statement,
expressed dollars, of the value of all the property owned by the corporation,
wherever located, and the value of the property of the corporation located
within this jurisdiction and a statement, expressed in dollars, of the gross
amount of business transacted by the corporation for the twelve months ended on
the thirty-first day of December preceding the date herein provided for the
filing of such report and the gross amount thereof transacted by the corporation
at or from places of business in this jurisdiction. If, on the thirty-first day
of December preceding the time herein provided for the filing of such report the
corporation had not been in existence for a period of twelve months, or in the
case of a foreign corporation had not been authorized to transact business in
this jurisdiction for a period of twelve months, the statement with respect to
business transacted shall be furnished for the period between the date of
incorporation or the date of its authorization to transact business in this
jurisdiction, as the case may be, and such thirty- first day of December. If all
the property of the corporation is located in this jurisdiction and all of its
business is transacted at or from places of business in this jurisdiction, or if
the corporation elects to pay the annual franchise tax on the basis of its
entire stated capital, then the information required by this subparagraph need
not be set forth in such report.
(i) Such additional
inf5rmation as may be necessary or appropriate in order to enable the Secretary
to determine and assess the proper amount of franchise taxes payable by such
corporation. Such annual report shall be made on forms prescribed and furnished
by the Secretary and the information therein contained shall be given as of the
date of the execution of the report, except as to the information required by
subparagraphs (g), (h), and (i) which shall be given as of the close of business
on the thirty-first day of December next preceding the date herein provided for
the filing of such report. It shall be executed by the corporation by its
president, a vice president, secretary, an assistant secretary, or treasurer,
and verified by the officer executing the report, or, if the corporation is in
the hands of a receiver or trustee, it shall be executed on behalf of the
corporation and verified by such receiver or trustee.
Section 802. Filing of Annual Report of Domestic and Foreign Corporations
Such annual report of a
domestic or foreign corporation shall be delivered to the Secretary between the
first day of January and the first day of March of each year, except that the
first annual report of a domestic or foreign corporation shall be ffled between
the first of January and the first day of March of the year next succeeding the
calendar year in which its certificate of incorporation or its certificate of
authority, as the case may be, was issued by the Secretary. Proof to the
satisfaction of the Secretary that prior to the first day of March such report
was deposited in the United States mail in a sealed envelope, properly
addressed, with postage prepaid, shall be deemed a compliance with This
requirement. If the Secretary finds that such report conforms to the
requirements of this Title, he shall file the same. If he finds that it does not
so conform, he shall promptly return the same to the corporation for any
necessary corrections in which event the penalties hereinafter prescribed for
failure to file such report within the time hereinabove provided shall not
apply, if such report is corrected to conform to the requirements of this Title
and returned to the Secretary within thirty days from the date on which it was
mailed to the corporation by the Secretary.
CHAPTER NINE
FEES, FRANCHISE TAXES. AND CHARGES
Section 901. Fees, Franchise Taxes and Charges to be Collected by
Secretary
The Secretary shall
charge and collect in accordance with the provisions of this Title:
(a) Fees for filing
documents and issuing certificates.
(b) Miscellaneous
charges.
(c) License fees.
(d) Franchise taxes.
All such charges shall be
properly accounted for and deposited in the Tribal Treasury Account, not less
than ten days after receipt by the Secretary.
Section 902. Fees for Filing Documents and Issuing Certificates
The Secretary shall
charge and collect for:
(a) Filing Articles of
Incorporation and issuing a certificate of incorporation, the fee shall be
one-tenth of one percent (l/10 to of 1%) of the authorized capital stock of such
corporation, provided that the minimum fee for such service shall be Twenty-five
Dollars ($25.00). Any authorized stock without par value shall be treated as
stock of par value of $50.00 and the fees thereon collected accordingly.
(b) Filing articles of
amendment and issuing a certificate of amendment Twenty-five Dollars ($25.00).
If the authorized capital of the corporation is increased by more than
Twenty-five Thousand Dollars ($25,000.00) by such action the filing fee shall
equal one-tenth of 1. percent (1/10 of 1%) of the increase. Each share
authorized without par value shall be deemed to have a par value of Fifty
Dollars ($50.0a) for purposes of this section and the fees thereon collected
accordingly.
(c) Filing restated
Articles of Incorporation Twenty-five Dollars ($25.00).
(d) Filing articles of
merger or consolidation and issuing a certificate of merger or consolidation
Twenty-five Dollars ($25.00). If the authorized capital of the corporation is
increased by more than Twenty-five Thousand Dollars ($25,000.00), by such
action, the filing fee shall equal one-tenth of 1 percent (1/10 of 1%) of the
increase. Each share authorized without par value shall be deemed to have a par
value of Fifty Dollars ($50.00) for purposes of this section and the fees
thereon collected accordingly.
(e) Filing an application
to reserve a corporate name, Five Dollars
($5.00).
(f) Filing a notice of
transfer of reserved corporate name, Five Dollars
($5.00).
(g) Filing a statement of
change of address of registered office or change of registered agent, or both,
Ten Dollars ($10.00).
(h) Filing a statement of
the establishment of a series of shares, Ten Dollars ($10.00).
(i) Filing a statement of
cancellation of shares, Ten Dollars ($10.00).
(j) Filing a statement of
cancellation of shares, Ten Dollars ($10.00).
(k) Filing a statement of
intent to dissolve, Ten Dollars ($10.00).
(l) Filing a statement of
revocation of voluntary dissolution proceedings, Ten Dollars ($10.00).
(m) Filing articles of
dissolution, Ten Dollars ($10.00).
(n) Filing an application
of a foreign corporation for a certificate of authority to transact business in
this jurisdiction and issuing a certificate of authority. The fee shall be one
tenth of one percent (1/10 of 1%) of the maximum amounts of capital to be
invested by such corporation at any time during the fiscal year as shown by an
affidavit of a general managing officer of such corporation attached to such
application, provided, that the minimum fee for such service shall be
Fifty Dollars ($50.00).
(o) Filing an application
of a foreign corporation for an amended certificate of authority to transact
business in this jurisdiction and issuing an amended certificate of authority,
Fifty Dollars ($50.00).
(p) Filing a copy of an
amendment to the Articles of Incorporation of a foreign corporation holding a
certificate of authority to transact business in this jurisdiction, Twenty-five
Dollars ($25.00).
(q) Filing a copy of
articles of merger of a foreign corporation holding a certificate of authority
to transact business in this jurisdiction, Twenty-five Dollars ($25.00).
(r) Filing an application
for withdrawal of a foreign corporation and issuing a certificate of withdrawal,
Fifty Dollars ($50.00).
(s) Filing any other
statement or report, required by this Title to be filed, Ten Dollars ($10.00).
Section 903. Miscellaneous Charges
The Secretary shall
charge and collect:
(a) For furnishing a
certified copy of any document, instrument, or paper relating to a corporation,
One Dollar ($1.00) per page and Five Dollars ($5.00) for the certificate and
affixing the seal thereto.
(b) At the time of any
service of process on> him as agent of a corporation, Twenty Dollars
($20.00), which amount may be recovered as taxable costs by the party to the
suit or action causing such service to be made if such party prevails in the
suit or action.
Section 904. License Fees Payable by Domestic Corporations
The Secretary shall
charge and collect from each domestic corporation license fees, based upon The
number of shares which it will have authority to issue or the increase in the
number of shares which it will have authority to issue, at the time of:
(a) Filing Articles of
Incorporation.
(b) Filing articles of
amendment increasing the number of authorized shares; and
(c) Filing articles of
merger or consolidation increasing the number of authorized shares which the
surviving or new corporation, if a domestic corporation, will have the authority
to issue above The aggregate number of shares which the constituent domestic
corporations constituent foreign corporations authorized to transact business in
this jurisdiction had authority to issue. The license fees shall be at the rate
of Five cents per share up to and including the first 10,000 authorized shares,
three cents per share for each authorized share in excess of 10,000 shares up to
and including 100,000 shares, and two cent per share for each authorized share
in excess of 100,000 shares, whether the shares are of par value or without par
value. The license fees payable on an increase in the number of authorized
shares shall be imposed only on the increased number of shares, and the number
of previously authorized shares shall be taken into account in determining the
rate applicable to the increased number of authorized shares.
Section 905. License Fees Payable by Foreign Corporations
The Secretary shall
charge and collect from each foreign corporation license fees, base upon the
proportion represented in this jurisdiction of the number of shares which it has
authority to issue or the increase in the number of shares which it has
authority to issue, at the time of:
(a) Filing an applicati6n
for a certificate of authority to transact business in this jurisdiction.
(b) Filing articles of
amendment which increased the number or authorized shares; and
(c) Filing articles of
merger or consolidation which increased the number of authorized shares which
the surviving or new corporation, if a foreign corporation, has authority to
issue above the aggregate number of shares which the constituent domestic
corporations and constituent foreign corporations authorized to transact
business in This jurisdiction had authority to issue. The license fees shall be
at the rate of Five cents per share up to and including the first 10,000
authorized shares represented in this jurisdiction, three cents per share for
each authorized share in excess of 10,000 shares up to and including 100,000
shares represented in This jurisdiction, and two cents per share for each
authorized share in excess of 100,000 shares represented in this jurisdiction,
whether The shares are of par value or without par value. The license fees
payable on an increase in the number of authorized shares shall be imposed only
on the increased number of such shares represented in this jurisdiction, and the
number of previously authorized shares represented in this jurisdiction shall be
taken into account in determining The rate applicable to the increased number of
authorized shares. The number of authorized shares represented in this
jurisdiction shall be that proportion of its total authorized share which the
sum of the value of its property located in this jurisdiction, and the gross
amount of business in This jurisdiction bears to the sum of the value of all of
its property, wherever located, and the gross amount of its business, wherever
transacted. Such proportion shall be determined form information contained in
the application for a certificate of authority to transact business in this
jurisdiction until the filing of an annual report and thereafter from
information contained in the latest annual report filed by the corporation.
Section 906. Franchise Taxes Payable by Domestic Corporations
The Secretary shall
charge and collect from each domestic corporation an annual franchise tax,
payable in advance for The period from July 1 in each year to July in the
succeeding year, beginning July 1 in the calendar year in which such corporation
is required to file its first annual report under this Title, at the rate of Ten
Dollars ($10.00) plus One Dollar ($1.00) per Thousand Dollars ($1,000.00) or
part thereof by which the stated capital of the corporation represented in this
jurisdiction exceeds Ten Thousand Dollars ($10,000.00), as disclosed by The
latest report filed by the corporation with the Secretary. The amount
represented in this jurisdiction of the stated capital of the corporation shall
be that proportion of its stated capital which the sum of The value of its
property located in this jurisdiction and the gross amount of business
transacted by it at or from place of business in this jurisdiction bears to the
sum of the value of all of its property, wherever located, and the gross amount
of its business, wherever transacted, except as follows:
(a) If the corporation
elects in its annual report in any year to pay its annual franchise tax on its
entire stated capital, all franchise taxes accruing against the corporation
after the filing of such annual report shall be assessed accordingly until the
corporation elects otherwise in an annual report for a subsequent year.
(b) If the corporation
fails to file its annual report in any year within the time prescribed by this
Title, the proportion of its stated capital represented in this jurisdiction
shall be deemed to be its entire stated capital, unless its annual report, is
thereafter filed and its franchise tax thereafter adjusted by the Secretary in
accordance with the provisions of this Title, in which case the proportion shall
likewise be adjusted to the sums proportion that would have prevailed if the
corporation had filed its annual report within the time prescribed by this
Title.
Section 907. Franchise Taxes Corporations
The Secretary shall
charge and collect from each foreign corporation authorized to transact business
in this jurisdiction an annual franchise tax, payable in advance for the period
from July 1 in each year to July 1 In the succeeding year, beginning July 1 in
the calendar year in which such corporation is required to file its first annual
report under this Title, at the rate of Ten Dollars ($10.00) plus One Dollars
($1.00) per Thousand Dollars ($1,O00.00) or part thereof by which stated capital
of the corporation represented in this jurisdiction exceeds Ten Thousand Dollars
($10,000.00) as disclosed by the latest annual report filed by the corporation
with the Secretary. The amount represented in this jurisdiction of the stated
capital of the corporation shall be that proportion of its stated capital which
the sum of the value of its property located in this jurisdiction and the ross
amount of business transacted by it at or from places of business in this
jurisdiction bears to the sum of the value of all of its property, wherever
located, and the ross amount of its business, wherever transacted except as
follows:
(a) If The corporation
elects in its annual report in any year to pay its annual franchise tax on its
entire stated capital, all franchise taxes accruing against the corporation
after the filing of such annual report shall be assessed accordingly until the
corporation elects otherwise in an annual report for a subsequent year.
(b) If the corporation
fails to file its annual report in any year within the time prescribed by this
Title, the proportion of its stated capital represented in this jurisdiction
shall be deemed to be its entire stated capital, unless its annual report is
thereafter filed and its franchise tax thereafter adjusted by tile Secretary in
accordance with the provisions of this Title, in which case the proportion shall
likewise be adjusted to the same proportion that would have prevailed if the
corporation had filed its annual report within the time prescribed by this
Title.
Section 908. Assessment and Collection of Annual Franchise Taxes
It shall be the duty of
the Secretary to collect all annual franchise taxes and penalties imposed by, or
assessed in accordance with this Title. Between the first day of March and the
first day of June of each year, the Secretary shall assess against each
corporation domestic and foreign, required to file an annual report in such
year, the franchise tax payable by it for the period from July 1 of such year to
July 1 of the succeeding year in accordance with the provisions of this Title,
and, if it has failed to file its annual report within the time prescribed by
this Title, the penalty imposed by this Tide upon such corporation for its
failure so to do; and shall mail a written notice to each corporation at its
registered office in this jurisdiction notifying the corporation (1) of the
amount of franchise tax assessed against it for the ensuing year and the amount
of penalty, if any, assessed against it for failure to file its annual report;
(2) that objections, if any, to such assessment will be heard by the officer
making the assessment on or before the fifteenth day of June of such year, upon
receipt of a request from the corporation; and CS) that such tax and penalty
shall be payable to The Absentee Shawnee Tribe through the office of the
Secretary on the first day of July next succeeding the date of the notice.
Failure to receive such notice shall not relieve the corporation of its
obligations to pay the tax and any penalty assessed, or invalidate the
assessment thereof. The Secretary shall have power to hear and determine
objections to any assessments of franchise tax at any time after such assessment
and, after hearing, to change or modify any such assessment. In the event of any
adjustment of franchise tax with respect to which a penalty has been assessed
for failure to file an annual report, the penalty shall be adjusted in
accordance with the provisions of this Title imposing such penalty. All annual
franchise taxes and all penalties for failure to file annual reports shall be
due and payable on the first day of July of each year. If the annual franchise
tax assessed against any corporation subject to the provisions of this Tide,
together with all penalties assessed thereon, shall not be paid to the Secretary
on or before the thirty-first day of July of the year in which such tax is due,
and payable, the Secretary shall certify such fact to the Prosecutor or the
Tribal Attorney, if necessary, on or before the fifteenth day of November of
such year, whereupon the Prosecutor or the Tribal Attorney, if necessary, may -
institute an action against such corporation in the name of the Absentee Shawnee
Tribe, in any court of competent jurisdiction, for the recovery of the amount of
such franchise tax and penalties, together with the cost of suit, and prosecute
the same to final judgment. For the purpose of enforcing collection, all annual
franchise taxes assessed in accordance with this Title, and all penalties
assessed thereon and all interest and costs that shall accrue in connection with
the collection thereof, shall be a prior and first lien on the real and personal
property of the corporation from and including the first day of July of the year
when such franchise taxes become due and payable until such taxes, penalties,
interest, and costs shall have been paid.
Section 909. Rate of Interest Charged on Overdue Payment
Any fee, franchise taxes,
charges, or penalties imposed by this Title, shall bear interest at the rate of
1.5% (one and one-half percent) per month from the date such fee, franchise tax,
charge, or penalty becomes due and payable until the date actually paid.
CHAPTER TEN
PENALTIES
Section 1001. Penalties Impssed Upon Corporations
Each corporation,
domestic or foreign, that fails or refuses to file its annual report for any
year within the time prescribed by this Act shall be subject to a penalty of ten
percent of the amount of the franchise tax assessed against it for the period
beginning July 1 of the year in which such report should have been filed. Such
penalty shall be assessed by the Secretary at the time of the assessment of the
franchise tax, If the amount of the franchise tax as originally assessed against
such corporation be thereafter adjusted in accordance with the provisions of
this Act, the amount of the penalty shall be likewise adjusted to ten percent of
the amount of the adjusted franchise tax. The amount of The franchise tax and
the amount of the penalty shall be separately stated in any notice to the
corporation with respect thereto. If the franchise tax assessed in accordance
with the provisions of this Act shall not be paid on or before the thirty-first
day of July, it shall be deemed to be delinquent, and there shall be added a
penalty of Two percent for each month or part of month of August. Each
corporation, domestic or foreign, that fails or refuses to answer truthfully and
fully within the time prescribed by this Act, any interrogatories propounded by
the Secretary in accordance with the provisions of this Act, shall be deemed
guilty of an offense and upon conviction thereof may be fined for each such
refusal in any amount not exceeding Five Hundred Dollars ($500.O0).
Section 1002. Penalties Imposed Upon Officers and Directors
(a) Each officer and
director of a corporation, domestic or foreign, who fails or refuses within the
time prescribed by this Act to answer truthfully and fully interrogatories
propounded to him by the Secretary in accordance with the provisions of this
Act, or who signs any articles, statement, report, application, or other
document filed with the Secretary which is known to such officer or director to
be false in any material respect, shall be deemed to be guilty of a offense and
upon conviction thereof may be fined in any amount Not exceeding Five Hundred
Dollars ($500.00) and imprisoned for a term of six months in the tribal jail or
both.
(b) Any person described
in subsection (a) of this section who is not personally subject to the criminal
jurisdiction of the tribal court shall be deemed to have created a public
nuisance and on judgment thereof, shall be liable for a civil penalty in an
amount not exceeding Five Hundred Dollars ($500.00).
(c) The fines and
penalties imposed by subsections (a) and (b) of this section shall be personal
and not subject to indemnification by the corporation.
CHAPTER ELEVEN
MISCELLANEOUS PROVISIONS
Section 1101. Interragatories by Secretary
The Secretary may
propound to any corporation, domestic or foreign, subject to the provisions of
this Title, and to any officer or director Thereof, such interrogatories as may
be reasonably necessary and proper to enable him to ascertain whether such
corporation has complied with all the provisions of this Title applicable to
such corporation. Such interrogatories shall be answered within thirty days
after the mailing thereof, or within such additional time as shall be fixed by
the Secretary and the answers thereto shall be fun and complete and shall be
made in writing and under oath. If such interrogatories be directed to an
individual they shall be answered by him, and if directed to a corporation they
shall be answered by the president, vice president, secretary or assistant
secretary thereof. The Secretary need not file any document to which such
interrogatories relate until such interrogatories be answered as herein
provided, and not then if the answers thereto disclose that such document is not
in conformity with the provisions of this Title. The Secretary shall certify to
the Prosecutor for such action as the Prosecutor may deem appropriate, all
interrogatories and answers Thereto which disclose a violation of any of the
provisions of this Title.
Section 1102. Information Disclosed bylnterrogatories
Interrogatories
propounded by the Secretary and the answers thereto shall not be open to public
inspection nor shall the Secretary disclose any facts or information obtained
therefrom except insofar as his official duty may require the same to be made
public or in the event such interrogatories or the answers thereto are required
for evidence in any criminal or civil proceedings or in any other action by the
Absentee Shawnee Tribe.
Section 1103. Powers of Secretary
The Secretary shall have
The power and authority reasonably necessary to enable him to administer this
Title efficiently and to perform the duties therein imposed upon him.
Section 1104. Appeal from Secretary
If the Secretary shall
fail to approve any articles of incorporation, amendment, merger, consolidation
or dissolution, or any other document required by this Title to be approved by
the Secretary before the same shall be filed in his office, he shall, within
twenty days after the delivery thereof to him, give written notice of his
disapproval to the person or corporation, domestic or foreign, delivering the
same, specifying the reasons therefor. From such disapproval such person or
corporation may appeal to. the Tribal Court by filing with the clerk of such
court a petition setting forth a copy of the articles or other documents sought
to be filed and a copy of the written disapproval thereof by the Secretary;
whereupon the matter shall be tried de novo by the court, and the court shall
either sustain the action of the Secretary or direct him to take such action as
the court may deem proper. If the Secretary shall revoke the certificate of
authority to transact business in this jurisdiction of any ioreign corporation,
pursuant to the provisions of this Title, such foreign corporation may likewise
appeal to the Tribal Court, by filing with the clerk of such court a petition
setting forth a copy of its certificate of authority to transact business in
this jurisdiction and a copy of the notice or revocation given by the Secretary;
whereupon the matter shall be tried de novo by the court, and the court shall
either sustain the action of the Secretary or direct him to take such action as
the court may deem proper. Appeals from all final orders and judgments entered
by the Tribal Court under this section on review of any ruling or decision of
the Secretary may be taken as in other civil actions.
Section 1105. Certificates and Certified Copies to be Received in Evidence
All certificates issued
by the Secretary in accordance with the provisions of this Title, and all copies
of documents filed in his office in accordance with the provisions of this Title
when certified by him, shall be taken and received in all courts, public offices
and official bodies as prima facie evidence of the facts therein stated. A
certificate by the Secretary under the great seal of the Absentee Shawnee Tribe,
as to the existence or non-existence of the facts relating to corporations shall
be taken and received in all courts, public offices, and official bodies as
prima facie evidence of the existence or non-existence of the facts therein
stated.
Section 1106. Forms to be Furnished by Secretary
All reports required by
this Title to be filed in the office of the Secretary shall be made on forms
which shall be prescribed and furnished by the Secretary. Forms for all other
documents to be filed in the office of the Secretary shall be furnished by the
Secretary on request therefore, but the use thereof, unless otherwise
specifically prescribed in this Title, shall not be mandatory.
Section 1107. Greater Voting Requirements
Whenever, with respect to
any action to be taken by the shareholders of a corporation, the articles of
incorporation require the vote or concurrence of the holders of a greater
proportion of the shares, or of any class or series thereof, than required by
this Title with respect to such action, the provisions of the articles of
incorporation shall control.
Section 1108. Waiver of Notice
Whenever any notice is
required to be given to any shareholder or director of a corporation under the
provisions of this Title or under the provisions of the articles of
incorporation or by-laws of the corporation, a waiver Thereof in writing signed
by the person or persons entitled to such notice, whether before or after the
time stated therein, shall be equivalent to the giving of such notice.
Section 1109. Action by Shareholders Without a Meeting
Any action required by
this Title to be taken at a meeting of the shareholders of a corporation, or any
action which may be taken at a meeting of the shareholders, may be taken without
a meeting if a consent in writing, setting forth the action so taken, shall be
signed by all of the shareholders entitled to vote with respect to the subject
matter thereof. Such consent shall have the same effect as a unanimous vote of
shareholders, and may be stated as such in any articles or document filed with
the Secretary under this Title.
Section 1110. Unauthorized Assumption of Corporate Powers
All persons who assume to
act as a corporation without authority so to do shall be jointly and severally
liable for all debts and liabilities incurred or arising as a result thereof.
Section 1111. Application to Foreign and Interstate Commerce
The provisions of this
Title shall apply to commerce with foreign nations, with the United States, and
with the several states only insofar as the same may be permitted under the
provisions of the several treaties and agreements between the Absentee Shawnee
Tribe of Oklahoma and the United States.
Section 1112. Reservation of Power
The Absentee Shawnee
Tribe of Indians of Oklahoma shall at all times have power to prescribe such
regulations, provisions and limitations as it may deem advisable, which
regulations, provisions and limitations shall be binding upon any and all
corporations subject to the provisions of this Title, and the Absentee Shawnee
Tribe of Oklahoma shall have power to amend, repeal or modify this Title at
pleasure.
Section 1113. Effect of Invalidity of Part of This Title
If a court of competent
jurisdiction shall adjudge to be invalid or unconstitutional any clause,
sentence, paragraph, section or part of this Title, such judgment or decree
shall not affect, impair, invalidate or nullify the remainder of this Title,
except for the specific clause, sentence, paragraph, section or part of this
Title so adjudged to be invalid or unconstitutional.
Section 1114. Consent to Tribal Court Jurisdiction
Every corporation,
whether domestic or foreign, and every officer, director, stockholder, and
employee of such corporation which is authorized to do business within the
Tribal jurisdiction pursuant to this Title and which avails itself of the
privilege of doing business within the jurisdiction of the Absentee Shawnee
Tribe of Oklahoma, shall be conclusively deemed to have consented to the
jurisdiction of the Courts of the Absentee Shawnee Tribe.
Section 1115. Securities Act of 1933 Applicable
The provisions of the
United States Securities Act of 1933, as amended, 15 U.S.C. 4 77(a) et.seq. and
all rules and regulations of the United States in regard thereto, shall apply to
any securities issued by any domestic corporation created by this Title.
Section 1116. Corporations Doing Business at Effective Date of This Title
Every foreign corporation
doing business within the jurisdiction of the Absentee Shawnee Tribe of Indians
of Oklahoma on the effective date of this Title shall be permitted one-hundred
and twenty days (120) from the effective date of this Title in which to bring
themselves into compliance with this Title. During such period of one-hundred
twenty (120) days, no such corporation shall be liable for any fine, penalty,
seizure or impoundment of property or assets, and may not be enjoined by reason
of failure to comply with this Title, provided, that if such compliance is not
achieved within such time, all fines and penalties shall be figured from the
effective date of this Title.
Section 1117. Exemption of Public Service Utility Companies
(a) The provisions of
this Title shall not apply to any public service utility company organized or
domesticated pursuant to the laws of the State of Oklahoma and subject to
regulation by the Corporation Commission of the State of Oklahoma when such
corporation's business activities within this jurisdiction consists exclusively
of providing one or more of the following services to residents, businesses, the
Tribal Government, or other persons lawfully within this jurisdiction:
(1) Telephone,
telegraph, and other consumer communications.
(2) Electric service
for consumer use.
(3) Natural gas service
for consumer use.
(4) Water service for
consumer use.
(5) Sewage and trash
removal and disposal.
(b) In order to qualify
for this exemption, such foreign corporation shall file with the Secretary
duplicate originals of an affidavit stating facts sufficient to inform the
Secretary that such corporation is entitled to the exemption created by this
Section. If the Secretary finds that such corporation is entitled to this
exemption, he shall:
(1) Endorse on each
affidavit the word "Filed," and the month, day, and year of the
filing thereof.
(2) File in his office
one duplicate original of the affidavit.
(3) Issue a Certificate
of Exemption to which he shall affix the other duplicate original affidavit.
Thereafter such foreign corporation shall be entitled and authorized to
conduct exclusively, those exempt business operations described in subsection
(a) of this section.
(c) If such corporation
wishes to also conduct non-exempt business within the jurisdiction, such
corporation shall comply with all the provisions of this Title to the extent
that it conducts non-exempt business within this jurisdiction.
(d) Nothing in this
section contained shall be construed as preventing any public service utility
company defined in subsection (a) of this section from, at its option, refusing
or failing to obtain a certificate of exemption authorized by this section and
electing to comply with the provisions of this Title as if no exemption were
provided.
CHAPTER TWELVE
NONPROFIT CORPORATIONS
Section 1201. Definitions
For The purpose of This
Chapter, unless the context otherwise requires, the terms defined in this
section shall have the meanings ascribed to them as follows:
(a)
"Corporation" means a nonprofit corporation formed for a purpose not
involving pecuniary gain to its shareholders or members, paying no dividends or
other pecuniary remuneration, directly or indirectly, to its shareholders or
members as such, and having no capital stock.
(b) "Notice"
Means written notification of a meeting:
(1) stating time,
place, and, in the case of a special meeting, purpose,
(2) properly addressed
according to the last available corporate records,
(3) sent or delivered
by a duly authorized person to each director or member entitled to vote at the
meeting, and
(4) delivered or mailed
not less than five (5) nor more than thirty (30) days before the meeting,
excluding the day of the meeting, or a published notification of a meeting of
a corporation having at least one hundred members, if its board of directors
should elect to give such notification thereof in lieu of written
notification, to be made by publication in a newspaper of general circulation
published in the reservation two (2) successive weeks previous to the date of
the meeting, stating the time, place, and, in the case of a special meeting
its purpose.
(c) "Articles"
means the original Articles of Incorporation as amended, articles of merger, or
articles of consolidation and incorporation, as the case may be.
(d) "Bylaws"
means the code adopted for the regulation or management of the internal affairs
of the corporation, regardless of how designated.
(e) "Member"
means an entity, either corporate or natural, having any membership or
shareholder rights in a corporation in accordance with its articles, bylaws, or
both.
(f) "Directors"
means the persons vested with the general management of the affairs of the
corporation, regardless of how they are designated.
Section 1202. Purposes of a Nonprofit Corporation
A nonprofit corporation
may be formed under this Chgpter for any lawful purpose or purposes.
Section 1203. Incorparators
Three or more natural
persons legally competent to enter into contracts may form a nonprofit
corporation under this Chapter.
Section 1204. Articles of Incorporation
The articles shall be
signed by each of the incorporators and acknowledged by at least three of them.
The articles of the corporation organized under this Chapter shall state:
(a) the Name of the
corporation;
(b) the purpose of the
corporation;
(c) that the corporation
does not afford pecuniary gain, incidentally or otherwise, to its members;
(d) the period of
duration of corporate existence which may be perpetual;
(e) the location, by
city, town, or other community, and the name of its registered agent and
registered office in this reservation;
(f) the name and address
of each incorporator;
(g) the number of
directors constituting the first board of directors, the name and address of
each such director, and the tenure in office of the first directors.
The Articles of
Incorporation may contain any other provision, consistent with the law of the
Absentee Shawnee Tribe for regulating the business of the corporation or The
conduct of the corporate affairs.
Section 1205. Corporate Name
A corporation organized
pursuant to this Chapter may use any corporate name authorized for use pursuant
to Section 306 of this Title, provided, that it shall not be necessary for a
nonprofit corporation to use the word "corporation,"
"company," "incorporated," or "limited" or an
abbrcviation of one of those words in its corporate name.
Section 1206. Corporate Capacity and Powers
A nonprofit corporation
incorporated under this Chapter shall have general corporate capacity, and shall
have and possess all of the general powers of a domestic corporation
incorporated under this Title.
Section 1207. Filing of Articles
The Articles of
Incorporation shall be filed in the Office of the Secretary. If the articles
conform to law, and upon the payment of a fee of Ten Dollars ($10.00), the
Secretary shall record the articles and issue and record a certificate of
incorporation. The certificate shall state the name of the corporation and the
fact and date of incorporation. Corporate existence shall begin upon the
issuance by the Secretary of the certificate of incorporation.
Section 1208. Amendment of Articles
Every nonprofit
corporation wishing to change its name or otherwise amend its Articles of
Incorporation shafl pay a fee of Ten Dollars ($10.00) and shall make such change
or amendment in the following manner: The board of directors shall pass a
resolution reciting that such change of name or amendment is advisable, and a
certified copy of said resolution under the corporate seal shall be filed in the
office of the Secretary. In addition, in the event of a change in the name of
such corporation, a notice of such change of name shall be published once in a
newspaper having general circulation in the reservation. The text and
application of the amendment shall be set out in the resolution. Upon filing of
the resolution, and proof of publication, if necessary, in the office of the
Secretary, the Articles of Incorporation shall be deemed amended.
Section 1209. Organizational Meeting
After commencement of
corporate existence, the first meeting of the board of directors shall be held
at the call of the incorporators or the directors, after notice, for the purpose
of adopting the initial bylaws, electing officers, performing other acts in the
internal organization of the corporation, and for such other purposes as shall
be stated in the notice of the meeting. Such meeting shall be held within thirty
(30) days after the issuance of a Certificate of Incorporation by the Secretary.
The first meeting of the members shall be held at the can of an officer or of
the initial board of directors, after notice. The initial bylaws adopted by the
board of directors shall remain effective until legally amended or repealed at a
membership meeting duly called for the specific purpose of amending or repealing
the bylaws.
Section 1210. Disposition of Assets
Notwithstanding any
provision of Tribal law or in. the Articles of Incorporation to the contrary,
the Articles of Incorporation of each nonprofit corporation which is an exempt
charitable, religious, literary, educational, or scientific Qrganization as
described in Section 5Ol(c)(3) of the Federal Internal Revenue Code of 1954, as
amended, shall be conclusively deemed to contain the following provisions: Upon.
the dissolution of the corporation, the board of trustees shall, after paying or
making provision for The payment of all of the liabilities of the corporation,
dispose of all of the assets of the corporation exclusively for the purposes of
the corporation in such manner, or to such organization or organizations
organized and operated exclusively for charitable, educational, religious,
literary or scientific purposes as shall at the time qualify as an exempt
organization or organizations under Section 5O1(c)(3) of the Internal Revenue
Code of 1954, as amended, or the correspondihg provision of any future United
States Internal Revenue Law, as the board of trustees shall determine. Any such
assets not so disposed of shall be disposed of by the Tribal Court, exclusively
for such purposes or to such organization or organizations, as said court shall
determine, which are organized and operated exclusively for such purposes.
Section 1211. General Corporate Laws Applicable
The provisions of this
Tide shall generally apply to corporations organized pursuant to this Chapter
except where a different rule is provided in this Chapter, provided, that
nonprofit corporations formed exclusively for charitable, religious, literary,
educational, - or scientific purposes which qualify as a corporation exempt from
federal taxation pursuant to Section 501(c)(3) of Tide 26 of the United States
Code, as amended, or any successor provision to this section, shall be exempt
from payment of any franchise taxes or license fees. In no case shall any filing
fee required by this Title exceed Ten Dollars ($1O.OO) for such exempt
corporations. An exempt nonprofit corporation may, but is not required, to file
an annual report with the Secretary.
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