CHAPTER 24-3
INCORPORATION; ARTICLES
24-3-1 Purposes.
A corporation may be incorporated under this Code for any business purpose or purposes, unless some other Code of the Nation requires incorporation for any of those purposes under a different law. Unless otherwise provided in its articles, a corporation has general business purposes.
24-3-2 Incorporators.
One or more enrolled members of the Nation of full age may act as incorporators of a corporation by filing with the Tribal Secretary articles of incorporation for the corporation.
24-3-3
(A) Articles; Required Provisions The articles of incorporation shall contain:
(1) The name of the corporation;
(2) The address of the registered office of the corporation and the name of its registered agent, if any, at that address;
(3) The aggregate number of shares that the corporation has authority to issue; and
(4) The name and address of each incorporator.
(B) Provisions that may be Modified Only in Articles. The following provisions govern a corporation unless modified in the articles:
(1) A corporation has general business purposes;
(2) A corporation has perpetual existence and certain powers;
(3) The power to adopt, amend, or repeal the bylaws is vested in the board;
(4) A corporation must allow cumulative voting for directors;
(5) The affirmative vote of a majority of directors present is required for an action of the board;
(6) A written action by the board taken without a meeting must be signed by all directors;
(7) The board may authorize the issuance of securities and rights to purchase securities;
(8) All shares are common shares entitled to vote and are of one class and one series;
(9) All shares have equal rights and preferences in all matters not otherwise provided for by the board;
(10) The par value of shares is fixed at one cent per share for certain purposes and may be fixed by the board for certain other purposes;
(11) The board or the shareholders may issue shares for any consideration or for no consideration to effectuate share dividends or splits, divisions, or combinations, and determine the value of non-monetary consideration;
(12) Shares of a class or series must not be issued to holders of shares of another class or series to effectuate share dividends or splits, divisions, or combinations, unless authorized by a majority of the voting power of the shares of the same class or series as the shares to be issued;
(13) A corporation may issue rights to purchase securities whose terms, provisions, and conditions are fixed by the board;
(14) A shareholder has no preemptive rights, unless otherwise provided by the board;
(15) The affirmative vote of the holders of a majority of the voting power of the shares present and entitled to vote at a duly held meeting is required for an action of the shareholders, except where this Code requires the affirmative vote of a majority of the voting power of all shares entitled to vote;
(16) Shares of a corporation acquired by the corporation may be reissued;
(17) Each share has one vote unless otherwise provided in the terms of the share;
(18) A corporation may issue shares for a consideration less than the par value, if any, of the shares; and
(19) The board may effect share dividends, divisions, and combinations under certain circumstances without shareholder approval (Section 24-8-2).
(C) Provisions that may be modified either in articles or in bylaws. The following provisions govern a corporation unless modified either in the articles or in the bylaws:
(1) Directors serve for an indefinite term that expires at the next regular meeting of shareholders (Section 24-6-4);
(2) The compensation of directors is fixed by the board (Section 24-6-6);
(3) A certain method must be used for removal of directors (Section 24-6-10);
(4) A certain method must be used for filling board vacancies (Section 24-6-11);
(5) If the board fails to select a place for a board meeting, it must be held at the principal executive office (Section 24-6-12 (A));
(6) The notice of a board meeting need not state the purpose of the meeting (Section 24-6-12 (C));
(7) A majority of the board is a quorum for a board meeting (Section 24-6-14);
(8) A committee shall consist of one or more persons, who need not be directors, appointed by affirmative vote of a majority of the directors present (Section 24-6-17 (B));
(9) The board may establish a special litigation committee (Section 24-6-17);
(10) The chief executive officer and chief financial officer have specified duties, until the board determines otherwise (Section 24-7-2);
(11) Officers may delegate some or all of their duties and powers, if not prohibited by the board from doing so (Section 24-7-8);
(12) The board may establish Uncertificated Shares (Section 24-8-6 (G));
(13) Regular meetings of shareholders need not be held, unless demanded by shareholders holding at least ten percent of the voting power under certain conditions (Section 24-8-11);
(14) In all instances where a specific minimum notice period has not otherwise been fixed by law, not less than ten days notice is required for a meeting of shareholders (Section 24-8-13 (B));
(15) The number of shares required for a quorum at a shareholders meeting is a majority of the voting power of the shares entitled to vote at the meeting (Section 24-8-17);
(16) The board may fix a date up to 60 days before the date of a shareholders meeting as the date for the determination of the holders of shares entitled to notice of and entitled to vote at the meeting (Section 24-8-18 (A));
(17) Indemnification of certain persons is required (Section 24-9-3); and
(18) The board may authorize, and the corporation may make, distributions not prohibited, limited, or restricted by an agreement (Section 24-9-4 (A)).
(D) Optional provisions specific subjects. The following provisions relating to the management of the business or the regulation of the affairs of a corporation may be included either in the articles or, except for naming members of the first board, fixing a greater than majority director or shareholder vote, or giving or prescribing the manner of giving voting rights to persons other than shareholders otherwise than pursuant to the articles, or eliminating or limiting a directories personal liability, in the bylaws:
(1) The members of the first board may be named in the articles (Section 24-6-1 (A));
(2) A manner for increasing or decreasing the number of directors may be provided (Section 24-6-2);
(3) Additional qualifications for directors may be imposed (Section 24-6-3);
(4) Directors may be classified (Section 24-6-7);
(5) The day or date, time, and place of board meetings may be fixed (Section 24-6-12 (A));
(6) Absent directors may be permitted to give written consent or opposition to a proposal (Section 24-6-13);
(7) A larger than majority vote may be required for board action (Section 24-6-15);
(8) Authority to sign and deliver certain documents may be delegated to an officer or agent of the corporation other than the chief executive officer (Section 24-7-2 (B));
(9) Additional officers may be designated (Section 24-7-3);
(10) Additional powers, rights, duties, and responsibilities may be given to officers (Section 24-7-4);
(11) A method for filling vacant offices may be specified (Section 24-7-7 (C));
(12) A certain officer or agent may be authorized to sign share certificates (Section 24-8-6 (B));
(13) The transfer or registration of transfer of securities may be restricted (Section 24-8-10);
(14) The day or date, time, and place of regular shareholder meetings may be fixed (Section 24-8-11 (C));
(15) Certain persons may be authorized to call special meetings of shareholders (Section 24-8-12 (A));
(16) Notices of shareholder meetings may be required to contain certain information (Section 24-8-13 (C));
(17) A larger than majority vote may be required for shareholder action (Section 24-8-15);
(18) Voting rights may be granted in or pursuant to the articles to persons who are not shareholders (Section 24-8-18 (D));
(19) Corporate actions giving rise to dissenter rights may be designated (Section 24-8-27 (A));
(20) The rights and priorities of persons to receive distributions may be established (Section 24-9-4); and
(21) A director’s personal liability to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director may be eliminated or limited in the articles (Section 24-6-18 (E)).
(E) Optional provisions; generally. The articles may contain other provisions not inconsistent with law relating to the management of the business or the regulation of the affairs of the corporation.
(F) Powers need not be stated. It is not necessary to set forth in the articles any of the corporate powers granted by this Code.
24-3-4 Corporate Name.
(A) Requirements; prohibitions. The corporate name:
(1) Shall be in the Pottawatomi or English language or in any other language expressed in English letters or characters;
(2) Shall contain the word “corporation,” “incorporated,” or “limited,” or shall contain an abbreviation of one or more of these words, or the word “company” or the abbreviation “Co.” if that word or abbreviation is not immediately preceded by the word “and” or the character “&”;
(3) Shall not contain a word or phrase that indicates or implies that it is incorporated for a purpose other than a legal business purpose;
(4) Shall be distinguishable upon the records in the office of the Tribal Secretary from the name of a tribal corporation or other legal entity, whether tribal or foreign, authorized or registered to do business on the Reservation or, whether or not authorized or registered to do business on the Reservation is well known on the Reservation, whether profit or nonprofit, or a name the right to which is, at the time of incorporation, reserved or provided for in Section 24-3-5, unless there is filed with the articles one of the following:
(a) The written consent of the Tribal corporation or other legal entity authorized or registered to do business on the Reservation or the holder of a reserved name or a name filed by or registered with the Tribal Secretary having a name that is not distinguishable;
(b) A certified copy of a final decree of the Tribal Court establishing the prior right of the applicant to the use of the name on the Reservation, or establishing that the corporation or other legal entity with the name that is not distinguishable has been incorporated or on file with the Tribal Secretary for at least three years prior thereto, and has been totally inactive, provided notice of a hearing on the matter has been given to such corporation or entity, if possible.
(B) Names continued. Section 24-3-4 (A), paragraph (d) does not affect the right of a tribal corporation existing on the effective date of this Code, or a foreign corporation authorized to do business on the Reservation on that date to continue the use of its name.
(C) Determination. The Tribal Secretary shall determine whether a name is distinguishable from another name for purposes of this Section and Section 24-3-5.
(D) Other laws affectingly use of names. This Section and Section 24-3-5 do not abrogate or limit any law of unfair competition or unfair practices, nor any Trademark Code, nor the laws of the United States with respect to the right to acquire and protect copyrights, trade names, trademarks, service names, service marks, or other rights to the exclusive use of names or symbols, nor derogate the common law or the principles of equity.
(E) Use of name by successor corporation. A corporation that is merged with another tribal or foreign corporation, or that is incorporated by the reorganization of one or more tribal or foreign corporations, or that acquires by sale, lease, or other disposition to or exchange with a tribal corporation all or substantially all of the assets of another tribal or foreign corporation including its name, may have the same name as that used on the Reservation by any of the other corporations, if the other corporation was incorporated under the laws of the Nation, or is authorized to transact business on the Reservation.
(F) Injunction. The use of a name by a corporation in violation of this Section does not affect or vitiate its corporate existence, but the Tribal Court may, upon application of the Nation or of a person interested or affected, enjoin the corporation from doing business under a name assumed in violation of this Section, although its articles may have been filed with the Tribal Secretary and a certificate of incorporation issued.
24-3-5 Reserved Name.
(A) Who may reserve. The exclusive right to the use of a corporate name otherwise permitted by Section 24-3-4 may be reserved by:
(1) A person doing business on the Reservation under that name;
(2) A person intending to incorporate under this Code;
(3) A tribal corporation intending to change its name;
(4) A foreign corporation intending to make application for a certificate of authority to transact business on the Reservation;
(5) A foreign corporation authorized to transact business on the Reservation and intending to change its name;
(6) A person intending to incorporate a foreign corporation and intending to have the foreign corporation make application for a certificate of authority to transact business on the Reservation; or
(7) A foreign corporation doing business under that name or a name deceptively similar to that name in one or more states of the United States and not described in paragraph (d), (e), or (f).
(B) Method of reservation. The reservation shall be made by filing with the Tribal Secretary a request that the name be reserved. If the name is available for use by the applicant, the Tribal Secretary shall reserve the name for the exclusive use of the applicant for a period of 12 months. The reservation may be renewed for successive 12-month periods.
(C) Transfer of reservation. The right to the exclusive use of a corporate name reserved pursuant to this Section may be transferred to another person by or on behalf of the applicant for whom the name was reserved by filing with the Tribal Secretary a notice of the transfer and specifying the name and address of the transferee.
24-3-6 Registered Office; Registered Agent.
(A) Registered office. Every corporation shall have and maintain on the Reservation a registered office, which may, but need not be, the same as its place of business. Whenever the term “principal place of business” or the “principal executive office,” or other term of like import, is or has been used in a corporation’s certificate of incorporation or charter, or in any other document, or in any tribal Code, it shall be deemed to mean and refer to, unless the context indicates otherwise, the corporation’s registered office required by this Section; and it shall not be necessary for any corporation to amend its certificate of incorporation, charter, or any other document to comply with this Section.
(B) Registered Reservation Agent. A corporation may designate in its articles a registered agent. The registered agent may be a natural person residing on the Reservation, or a tribal corporation located on the Reservation. Every registered agent shall:
(1) If an entity, maintain a business office on the Reservation which is generally open, or if an individual, be generally present at a designated location on the Reservation, at sufficiently frequent times to accept service of process and otherwise perform the functions of a registered agent; and
(2) Accept service of process and other communications directed to the corporations for which it serves as registered agent and forward the same to the corporation to which the service or communication is directed.
(C) Communications Contact. Every corporation formed under this Code shall provide to its registered agent and update from time to time as necessary the name, business address and business telephone number of a natural person who is an officer, director, employee, or designated agent of the corporation, who is then authorized to receive communications from the registered agent. Such person shall be deemed the communications contact for the corporation. Every registered agent shall retain (in paper or electronic form) the above information concerning the current communications contact for each corporation for which he, she or it serves as a registered agent. If the corporation fails to provide the registered agent with a current communications contact, the registered agent may resign as the registered agent for such corporation.
(D) Agent Listing. The Tribal Secretary is authorized to make a list of registered agents available to the public, and to establish such qualifications and issue such rules and regulations with respect to such listing as the Tribal Secretary deems necessary or appropriate.
24-3-7 Change of Registered Office or Registered Agent; Change of Name of Registered Agent.
(A) Statement. A corporation may change its registered office, designate or change its registered agent, or state a change in the name of its registered agent, by filing with the Tribal Secretary a statement containing:
(1) The name of the corporation;
(2) If the address of its registered office is to be changed, the new address of its registered office;
(3) If its registered agent is to be designated or changed, the name of its new registered agent;
(4) If the name of its registered agent is to be changed, the name of its registered agent as changed;
(5) A statement that the address of its registered office and the address of the office of its registered agent, as changed, will be identical; and
(6) A statement that the change of registered office or registered agent was authorized by resolution approved by the affirmative vote of a majority of the directors present.
(B) Resignation of agent. A registered agent of a corporation may resign by filing with the Tribal Secretary a signed written notice of resignation, including a statement that a signed copy of the notice has been given to the corporation at its principal executive office or to a legal representative of the corporation. The appointment of the agent terminates 30 days after the notice is filed with the Tribal Secretary.
(C) Change of business address or name of agent. If the office address or name of a registered agent changes, the agent shall change the address of the registered office or the name of the registered agent, as the case may be, of each corporation represented by that agent by filing with the Tribal Secretary a statement as required in Section 24-3-7 (A), except that it need be signed only by the registered agent, need not be responsive to paragraph (e) or (f), and must state that a copy of the statement has been mailed to each of those corporations or to the legal representative of each of those corporations.
24-3-8 Amendment of Articles.
The articles of a corporation may be amended at any time to include or modify any provision that is required or permitted to appear in the articles or to omit any provision not required to be included in the articles, except that when articles are amended to restate them, the name and address of each incorporator may be omitted. Unless otherwise provided in this Code, the articles may be amended or modified only in accordance with Sections 24-3-9 to 24-3-12. An amendment which merely restates the then-existing articles of incorporation, as amended, is not an amendment for the purposes of Section 24-6-8 (B), or Section 24-8-5 (I).
24-3-9 Procedure for Amendment Before Issuance of Shares.
Before the issuance of shares by a corporation, the articles may be amended pursuant to Section 24-5-1 by the incorporators or by the board. The articles may be amended by the board to change a statement pursuant to Section 24-8-1, subdivisions, establishing or fixing the rights and preferences of a class or series of shares before the issuance of any shares of that class or series.
24-3-10 Procedure for Amendment After Issuance of Shares.
(A) Manner of amendment. After the issuance of shares by the corporation, the articles may be amended in the manner set forth in this Section.
(B) Submission to shareholders. A resolution approved by the affirmative vote of a majority of the directors present, or proposed by a shareholder or shareholders holding three percent or more of the voting power of the shares entitled to vote, that sets forth the proposed amendment shall be submitted to a vote at the next regular or special meeting of the shareholders of which notice has not yet been given but still can be timely given. Any number of amendments may be submitted to the shareholders and voted upon at one meeting, but the same or substantially the same amendment proposed by a shareholder or shareholders need not be submitted to the shareholders or be voted upon at more than one meeting during a 15-month period. The resolution may amend the articles in their entirety to restate and supersede the original articles and all amendments to them. The provisions of this subdivision regarding shareholder-proposed amendments do not apply to a corporation registered or reporting under the federal securities laws, to the extent that those provisions are in conflict with the federal securities laws or rules promulgated there under, in which case the federal securities laws or rules promulgated there under shall govern.
(C) Notice. Written notice of the shareholders meeting setting forth the substance of the proposed amendment shall be given to each shareholder in the manner provided in Section 24-8-13 for the giving of notice of meetings of shareholders.
(D) Approval by shareholders.
(1) The proposed amendment is adopted when approved by the affirmative vote of the holders of a majority of the voting power of the shares present and entitled to vote, except as provided in paragraphs (b) and (c) herein and Section 24-3-10 (E).
(2) For a closely held corporation, if the articles provide for a specified proportion or number equal to or larger than the majority necessary to transact a specified type of business at a meeting, or if it is proposed to amend the articles to provide for a specified proportion or number equal to or larger than the majority necessary to transact a specified type of business at a meeting, the affirmative vote necessary to add the provision to, or to amend an existing provision in, the articles is the larger of:
(a) The specified proportion or number or, in the absence of a specific provision, the affirmative vote necessary to transact the type of business described in the proposed amendment at a meeting immediately before the effectiveness of the proposed amendment; or
(b) The specified proportion or number that would, upon effectiveness of the proposed amendment, be necessary to transact the specified type of business at a meeting.
(3) For corporations other than closely held corporations, if the articles provide for a larger proportion or number to transact a specified type of business at a meeting, the affirmative vote of that larger proportion or number is necessary to amend the articles to decrease the proportion or number necessary to transact the business.
(E) Certain restatements. An amendment that merely restates the existing articles, as amended, may be authorized by a resolution approved by the board and may, but need not, be submitted to and approved by the shareholders as provided in Sections 24-3-10 (B) to 24-3-10 (D).
24-3-11 Class or Series Voting on Amendments.
The holders of the outstanding shares of a class or series are entitled to vote as a class or series upon a proposed amendment, whether or not entitled to vote thereon by the provisions of the articles, if the amendment would:
(1) Increase or decrease the aggregate number of authorized shares of the class or series;
(2) Effect an exchange, reclassification, or cancellation of all or part of the shares of the class or series;
(3) Effect an exchange, or create a right of exchange, of all or any part of the share of another class or series for the shares of the class or series;
(4) Change the rights or preferences of the shares of the class or series;
(5) Change the shares of the class or series, whether with or without par value, in the same or a different number of shares, either with or without par value, of the same or another class or series;
(6) Create a new class or series of shares having rights and preferences prior and superior to the shares of that class or series, or increase the rights and preferences or the number of authorized shares, of a class or series having rights and preferences prior or superior to the shares of that class or series;
(7) Divide the shares of the class into series and determine the designation of each series and the variations in the relative rights and preferences between the shares of each series, or authorize the board to do so;
(8) Limit or deny any existing preemptive rights of the shares of the class or series; or
(9) Cancel or otherwise affect distributions on the shares of the class or series that have accrued but have not been declared.
24-3-12 Articles of Amendment.
When an amendment has been adopted, articles of amendment shall be prepared that contain:
(1) The name of the corporation;
(2) The amendment adopted;
(3) With respect to an amendment restating the articles, a statement that the amendment restating the articles correctly sets forth without change the corresponding provisions of the articles as previously amended if the amendment was approved only by the board;
(4) If the amendment provides for but does not establish the manner for effecting an exchange, reclassification, division, combination, or cancellation of issued shares, a statement of the manner in which it will be effected; and
(5) A statement that the amendment has been adopted pursuant to this Code.
24-3-13 Effect of Amendment.
(A) Effect on cause of action. An amendment does not affect an existing cause of action in favor of or against the corporation, nor a pending suit to which the corporation is a party, nor the existing rights of persons other than shareholders.
(B) Effect of change of name. If the corporate name is changed by the amendment, a suit brought by or against the corporation under its former name does not abate for that reason.
(C) Effect of amendments restating, articles. When effective under Section 24-3-15, an amendment restating the articles in their entirety supersedes the original articles and all amendments to the original articles.
24-3-14 Filing Articles.
Articles of incorporation and articles of amendment shall be filed with the Tribal Secretary, which may require certain procedures be followed to properly file with his office. If the Tribal Secretary finds that the articles of incorporation appear to conform to law, he shall, when all fees have been paid, issue a certificate of incorporation.
24-3-15 Effective date of articles.
Articles of incorporation are effective and corporate existence begins when the articles of incorporation are filed with the Tribal Secretary accompanied by a payment of $100.00. Articles of amendment and articles of merger are effective when filed with the Tribal Secretary or at another time within 30 days after filing if the articles of amendment so provide. Articles of merger must be accompanied by a fee of $50.00.
24-3-16 Presumption; certificate of incorporation.
When the articles of incorporation have been filed with the Tribal Secretary and the required fee has been paid to the Tribal Secretary, it is presumed that all conditions precedent required to be performed by the incorporators have been complied with and that the corporation has been incorporated, and the Tribal Secretary shall issue a certificate of incorporation to the corporation, but this presumption does not apply against the Nation in a proceeding to cancel or revoke the certificate of incorporation or to compel the involuntary dissolution of the corporation.