Oneida Indian Nation (New York) Codes and Rules
Last amended: 2004
BUSINESS CORPORATION CODE - CHAPTERS 1-5
Go to Business Corporation Code - Chapters 6-8
Go to Business Corporation Code - Chapters 9-13
Chapter 1 - Short Title; Definitions; Applications; Certificates; Miscellaneous
101. Short
Title
102. Definitions
103. Application
104. Certificates; Requirements, Signing, Filing, Effectiveness
104-A. Fees
105. Certificates; Corrections
106. Certificates As Evidence
107. Corporate Seal as Evidence
108. When Notice or Lapse of Time Unnecessary; Notices Dispensed With
When Delivery is Prohibited
109. Actions or Special Proceedings By Nation Prosecutor
110. Reservation of Power
111. Effect of Invalidity of Part of Chapter; Severability
112. References
113. Code Not Applicable to Corporation Created by Nation Ordinances
114. Sovereign Immunity
Chapter 2 - Corporate Purposes and Powers
201. Purposes
202. General Powers
203. Defense of Ultra Vires
Chapter 3 - Corporate Name and Service of Process
301. Corporate
Name; General
302. Corporate Name; Exceptions
303. Reservation of Name
304. Statutory Designation of Secretary of State As Agent for Service
of Process
305. Registered Agent for Service of Process
306. Service of Process
307. Service of Process on Unauthorized Foreign Corporation
308. Records and Certificates of Secretary of State
Chapter 4 - Formation of Corporations
401. Incorporators
402. Certificate of Incorporation; Contents
403. Certificate of Incorporation; Effect
404. Organization Meeting
405. Day Care Center for Children; Approval of Certificate
406. Filing of a Certificate of Incorporation; Facility for Alcoholism
or Alcohol Abuse
407. Substance Abuse Program; Consent to Certificate
408. Statement of Addresses and Directors; Filing
409. Penalty for Failure to File; Cure
501. Authorized
Shares
502. Issue of Any Class of Preferred Shares in Series
503. Subscription for Shares; Time of Payment, Forfeiture for Default
504. Consideration and Payment for Shares
505. Rights and Options to Purchase Shares; Issue of Rights and Options
to Directors, Officers and Employees
506. Determination of Stated Capital
507. Compensation for Formation, Reorganization and Financing
508. Certificates Representing Shares
509. Fractions of a Share or Scrip Authorized
510. Dividends or Other Distributions in Cash or Property
511. Share Distributions and Changes
512. Redeemable Shares
513. Purchase or Redemption by a Corporation of its Own Shares
514. Agreements For Purchase by a Corporation of its Own Shares
515. Reacquired Shares
516. Reduction of Stated Capital in Certain Cases
517. Special Provisions Relative to Surplus and Reserves
518. Corporate Bonds
519. Convertible Shares and Bonds
520. Liability for Failure to Disclose Required Information
BUSINESS CORPORATION CODE
CHAPTER 1 - SHORT TITLE; DEFINITIONS; APPLICATIONS;
CERTIFICATES; MISCELLANEOUS
101. SHORT TITLE
This Code shall be known as the "Business Corporation Code".
102. DEFINITIONS
(a) As used in this Code, unless the context otherwise requires, the term:
(1) "Bonds" includes secured and unsecured bonds, debentures, and notes.
(2) "Capital surplus" means the surplus other than earned surplus.
(3) "Certificate of incorporation" includes (A) the original certificate of incorporation or any other instrument filed or issued under any statute to form a domestic or foreign corporation, as amended, supplemented or restated by certificates of amendment, merger or consolidation or other certificates or instruments filed or issued under any statute; or (B) a special act or charter creating a domestic or foreign corporation, as amended, supplemented or restated.
(4) "Corporation" or "domestic corporation" means a corporation for profit formed under this chapter, or existing on its effective date and theretofore formed under any other statute or by any special act of the Nation for a purpose or purposes for which a corporation may be formed under this Code.
(5) "Court" means the Oneida Nation Court.
(6) "Director" means any member of the governing board of a corporation, whether designated as director, trustee, manager, governor, or by any other title. The term "board" means "board of directors".
(7) "Earned surplus'' means the portion of the surplus that represents the net earnings, gains or profits, after deduction of all losses, that have not been distributed to the shareholders as dividends, or transferred to stated capital or capital surplus, or applied to other purposes permitted by law. Unrealized appreciation of assets is not included in earned surplus.
(8) "Foreign corporation" means a corporation for profit formed under laws other than the statutes of the Nation, which has as its purpose or among its purposes a purpose for which a corporation may be formed under this chapter, other than a corporation which, if it were to be formed currently under the laws of the Nation, could not be formed under this chapter. "Authorized", when used with respect to a foreign corporation, means having authority under Chapter 13 (Foreign corporations) to do business in the Nation.
(9) "Infant" means a person who has not attained the age of eighteen years.
(10) "Insolvent'' means being unable to pay debts as they become due in the usual course of the debtor's business.
(11) "Net assets" means the amount by which the total assets exceed the total liabilities. Stated capital and surplus are not liabilities.
(12) "Office of a corporation" means the office the location of which is stated in the certificate of incorporation of a domestic corporation, or in the application for authority of a foreign corporation or an amendment thereof. Such office need not be a place where business activities are conducted by such corporation.
(13) "Nation" means the Oneida Indian Nation.
(14) "Oneida Indian Nation Clerk'' and "Nation Clerk" mean the Clerk of the Oneida Indian Nation.
(15) "Process'' means judicial process and all orders, demands, notices or other papers required or permitted by law to be personally served on a domestic or foreign corporation, for the purpose of acquiring jurisdiction of such corporation in any action or proceeding, civil or criminal, whether judicial, administrative, arbitrative or otherwise, in the Nation.
(16) "Stated capital" means the sum of (A) the par value of all shares with par value that have been issued, (B) the amount of the consideration received for all shares without par value that have been issued, except such part of the consideration therefore as may have been allocated to surplus in a manner permitted by law, and (C) such amounts not included in clauses (A) and (B) as have been transferred to stated capital, whether upon the distribution of shares or otherwise, minus all reductions from such sums as have been effected in a manner permitted by law.
(17) "Surplus" means the excess of net assets over stated capital.
(18) "Treasury shares" means shares which have been issued, have been subsequently acquired, and are retained uncancelled by the corporation. Treasury shares are issued shares, but not outstanding shares, and are not assets.
103. APPLICATION
(a) This Code applies to every domestic corporation and to every foreign corporation which is authorized or does business in the Nation. This Code also applies to any other domestic corporation or foreign corporation of any type or kind to the extent, if any, provided under this Code or any law governing such corporation.
(b) This Code also applies to a corporation of any type or kind, formed for profit under the laws of the Nation.
(c) The enactment of this Code shall not affect the duration of a Corporation which is existing on the effective date of this Code. Any such existing corporation, its shareholders, directors and officers shall have the same rights and be subject to the same limitations, restrictions, liabilities and penalties as a corporation formed under this Code, its shareholders, directors and officers.
(d) This Code shall not affect any cause or action, liability, penalty or action or special proceeding, which on the effective date of this Code, is accrued, existing, incurred or pending but the same may be asserted, enforced, prosecuted or defended as if this Code had not been enacted.
104. CERTIFICATES; REQUIREMENTS, SIGNING, FILING, EFFECTIVENESS
(a) Whenever such instrument is required to set forth an address, it shall include the street and number, or other particular description instead of a street and number. This requirement does not apply where a post office address is specified to be set forth.
(b) Whenever such instrument is required to set forth the date when a certificate of incorporation was filed by the Nation Clerk, the original Certificate of incorporation is meant. This requirement shall be satisfied, in the case of a corporation created by special act, by setting forth the ordinance number and year of passage of such ordinance.
(c) Every such certificate required under this Code to be signed and delivered to the Nation Clerk shall, except as otherwise specified in the section providing for such certificate, be signed either (1) by the holders of all outstanding shares entitled to vote thereon, or (2) by the chairman of the board, the president or a vice president and by the secretary or an assistant secretary, or (3) if there are no such officers by a majority of the directors or such directors as are designated by a majority of the directors in office, or (4) if also there are no directors, by the holders, or such of them as are designated by the holders, of record of a majority of all outstanding shares entitled to vote thereon, or (5) if also there is no shareholder of record, by a subscriber for shares whose subscription has been accepted or his successor in interest or (6) if also no subscription for shares has been accepted, by an incorporator or anyone acting in his stead under paragraph (c) of section 615 (Written consent of shareholders, subscribers or incorporators without a meeting). His name and the capacity in which any person signs such certificate shall be stated beneath or opposite his signature. The person signing such certificate or, if more than one person signs it, one of such persons shall verify or acknowledge the certificate if required by the section providing for such certificate. In lieu of being signed and verified or acknowledged, the certificate may be subscribed by such person and affirmed by him as true under the penalties of perjury.
(d) If an instrument which is delivered to the Nation Clerk for filing complies as to form with the requirements of law and there has been attached to it the consent or approval of the Nation official, department, board, agency or other body, if any, whose consent to or approval of such instrument or the filing thereof is required by any statute of the Nation and the filing fee and tax, if any, required by any statute of the Nation in connection therewith have been paid, the instrument shall be filed and indexed by the Nation Clerk. No certificate of authentication or conformity or other proof shall be required with respect to any verification, oath or acknowledgment of any instrument delivered to the Nation Clerk under this Code, if such verification, oath or acknowledgment purports to have been made before a notary public. Without limiting the effect of section four hundred three of this Code, filing and indexing by the Nation Clerk shall not be deemed a finding that a certificate conforms to law, nor shall it be deemed to constitute an approval by the Nation Clerk of the name of the corporation or the contents of the certificate, nor shall it be deemed to prevent any person with appropriate standing from contesting the legality thereof in an appropriate forum.
(e) Except as otherwise provided in this Code, such instrument shall become effective upon the filing thereof by the Nation Clerk.
104-A. FEES
Except as otherwise provided, the Nation Clerk shall collect the following fees pursuant to this Code:
(a) For the reservation of a corporate name pursuant to section three hundred three of this Code, twenty dollars.
(b) For the resignation of a registered agent for service of process pursuant to section three hundred five of this Code, sixty dollars.
(c) For service of process on the Nation Clerk pursuant to section three hundred six or three hundred seven of this Code, forty dollars.
(d) For filing a certificate of incorporation pursuant to section four hundred two of this Code, one hundred twenty-five dollars.
(e) For filing a certificate of amendment pursuant to section eight hundred five of this Code, sixty dollars.
(f) For filing a certificate of change pursuant to section eight hundred five-A of this Code, thirty dollars.
(g) For filing a restated certificate of incorporation pursuant to section eight hundred seven of this Code, sixty dollars.
(h) For filing a certificate of merger or consolidation pursuant to section nine hundred four of this Code, sixty dollars.
(i) For filing a certificate of merger of a subsidiary corporation pursuant to section nine hundred five of this Code, sixty dollars.
(j) For filing a certificate of merger or consolidation of domestic and foreign corporations pursuant to section nine hundred seven of this Code, sixty dollars.
(k) For filing a certificate of dissolution pursuant to section one thousand three of this Code, twenty dollars.
(l) For filing an application by a foreign corporation for authority to do business in the Nation pursuant to section thirteen hundred four of this Code, two hundred twenty-five dollars.
(m) For filing a certificate of amendment of an application for authority by a foreign corporation pursuant to section thirteen hundred nine of this Code, sixty dollars.
(n) For filing a certificate of change of application for,authority by a foreign corporation pursuant to section thirteen hundred nine-A of this Code, thirty dollars.
(o) For filing a certificate of surrender of authority pursuant to section thirteen hundred ten of this Code, sixty dollars.
(p) For filing a statement of the termination of existence of a foreign corporation pursuant to section thirteen hundred eleven of this Code, sixty dollars. There shall be no fee for the filing by an authorized officer of the jurisdiction of incorporation of a foreign corporation of a certificate that the foreign corporation has been dissolved or its authority or existence has been otherwise terminated or canceled in the jurisdiction of its incorporation.
(q) For filing any other certificate or document, forty dollars.
105. CERTIFICATES; CORRECTIONS
Any certificate or other instrument relating to a domestic or foreign corporation filed by the Nation Clerk under this Code may be corrected with respect to any informality or error apparent on the face, incorrect statement or defect in the execution thereof including the deletion of any matter not permitted to be stated therein. A certificate, entitled "Certificate of correction of....( correct title of certificate and name of corporation)" shall be signed, verified and delivered to the Nation Clerk. It shall set forth the name of the corporation, the date the certificate to be corrected was filed by the Nation Clerk, a statement as to the nature of the informality error, incorrect statement or defect, the provision in the certificate as corrected or eliminated and if the execution was defective, the proper execution. The filing of the certificate by the Nation Clerk shall not alter the effective time of the instrument being corrected, which shall remain as its original effective time, and shall not affect any right or liability accrued or incurred before such filing. A corporate name may not be changed or corrected under this section. The provisions of this section shall apply to all instruments and certificates heretofore and hereafter filed with the Nation Clerk.
106. CERTIFICATES AS EVIDENCE
(a) Any certificate or other instrument filed by the Nation Clerk relating to a domestic or foreign corporation and containing statements of fact required or permitted by law to be contained therein, shall be received in all courts, public offices and official bodies as prima facie evidence of such facts and of the execution of such instrument.
(b) Whenever by the laws of any jurisdiction other than the Nation, any certificate by any officer in such jurisdiction or a copy of any instruments certified or exemplified by any such officer, may be received as prima facie evidence of the incorporation, existence or capacity of any foreign corporation incorporated in such jurisdiction, or claiming so to be, such certificate when exemplified, or such copy of such instrument when exemplified shall be received in all courts, public offices and official bodies of the Nation, as prima facie evidence with the same force as in such jurisdiction. Such certificate or certified copy of such instrument shall be so received, without being exemplified, if it is certified by the Nation Clerk, or official performing the equivalent function as to corporate records, of such jurisdiction.
107. CORPORATE SEAL AS EVIDENCE
The presence of the corporate seal on a written instrument purporting to be executed by authority of a domestic or foreign corporation shall be prima facie evidence that the instrument was so executed.
108. WHEN NOTICE OR LAPSE OF TIME UNNECESSARY; NOTICES DISPENSED WITH
WHEN DELIVERY IS PROHIBITED
(a) Whenever, under this Code or the certificate of incorporation or by-laws of any corporation or by the terms of any agreement or instrument, a corporation or the board or any committee thereof authorized to take any action after notice to any person or persons or after the lapse of a prescribed period of time, such action may be taken without notice and without the lapse of such period of time, if at any time before or after such action is completed the person or persons entitled to such notice or entitled to participate in the action to be taken or, in the case of a shareholder, by his attorney-in-fact, submit a signed waiver of notice of such requirements.
(b) Whenever any notice or communication is required to be given to any person by this Code, the Certificate of incorporation or by-laws, or by the terms of any agreement or instrument, or as a condition precedent to taking any corporate action and communication with such person is then unlawful under any statute of the Nation or any regulation, proclamation or order issued under said statutes, then the giving of such notice or communication to such person shall not be required and there shall be no duty to apply for license or other permission to do so. Any affidavit, certificate or other instrument which is required to be made or filed as proof of the giving of any notice or communication required under this Code shall, if such notice or communication to any person is dispensed with under this paragraph, include a statement that such notice or communication was not given to any person with whom communication is unlawful. Such affidavit, certificate or other instrument shall be as effective for all purposes as though such notice or communication has been personally given to such person.
(c) Whenever any notice or communication is required or permitted by this Code to be given by mail, it shall, except as otherwise expressly provided in this Code, be mailed to the person to whom it is directed at the address designated by him for that purpose or, if none is designated, at his last known address. Such notice or communication is given when deposited, with postage thereon prepaid, in a post office or official depository under the exclusive care and custody of the United States post office department. Such mailing shall be by first class mail except where otherwise required by this Code.
109. ACTIONS OR SPECIAL PROCEEDINGS BY NATION PROSECUTOR
(a) The Nation Prosecutor may maintain an action or special proceeding:
(1) To annul the corporate existence or dissolve a corporation that has acted beyond its capacity or power or to restrain it from the doing of unauthorized business;
(2) To annul the corporate existence or dissolve any corporation that has not been duly formed;
(3) To restrain any person or persons from acting as a domestic or foreign corporation within the territorial jurisdiction of the Nation without being duly incorporated or from exercising in the territorial jurisdiction of the Nation any corporate rights, privileges or franchises not granted to them by the law of the Nation;
(4) To procure a judgment removing a director of a corporation for cause under section 706 (Removal of directors);
(5) To dissolve a corporation under Code 11 (Judicial dissolution);
(6) To restrain a foreign corporation or to annul its authority to do business within the territorial jurisdiction of the Nation under section 1303 (Violations).
(7) Upon written application, ex parte, for an order to the Oneida Indian Nation court and if the court so orders, to inspect the books and records of the corporation to the extent that such inspection is available to shareholders and directors under the law of the Nation. This paragraph applies to every corporation, no shares of which are listed on a national securities exchange or regularly quoted in an over-the-counter market by one or more members of a national or an affiliated securities association. This paragraph does not apply to a corporation all shares of which are owned either directly or through a wholly owned subsidiary by a corporation or corporations to which this paragraph does not apply.
(8) To collect any fines payable to the Nation Clerk pursuant to section four hundred nine of this Code.
(b) In an action or special proceeding brought by the Nation Prosecutor under any of the provisions of this Code:
(1) The court may confer immunity.
(2) A temporary restraining order to restrain the commission or continuance of the unlawful acts which form the basis of the action or special proceeding may be granted upon proof, by affidavit, that the defendant or defendants have committed or are about to commit such acts. Application for such restraining order may be made ex parte or upon such notice as the court may direct.
(3) If the action or special proceeding is against a foreign corporation, the Nation Prosecutor may apply to the court at any stage thereof for the appointment of a temporary receiver of the assets in the Nation of such foreign corporation, whenever it has assets or property of any kind whatsoever, tangible or intangible, within the Nation.
(4) When filial judgment in such action or special proceeding is rendered against the defendant or defendants, the court may direct the costs to be collected by execution against any or all of the defendants or by order of attachment or other process against the person of any director or officer of a corporate defendant.
(5) In connection with any such proposed action or special proceeding, the Nation Prosecutor may take proof and issue subpoenas in accordance with the Oneida Indian Nation Rules of Civil Procedure.
(c) In any such action or special proceeding against a foreign corporation which has not designated the Nation Clerk as its agent for service of process under section 304 (Statutory designation of Nation Clerk as agent for service of process), any of the following acts within the territorial jurisdiction of the Nation by such foreign corporations shall constitute the appointment by it of the Nation Clerk as its agent upon whom process against such foreign corporation may be served:
(1) As used in this paragraph the term "resident" shall include individuals, domestic corporations and foreign corporations authorized to do business in the Nation.
(2) Any act done, or representation made as part of a course of the solicitation of orders, or the issuance, or the delivery, of contracts for, or the sale of, property, or the performance of services to residents which involves or promotes a plan or scheme to defraud residents in violation of the laws or the public policy of the Nation.
(3) Any act done as part of a course of conduct of business in the solicitation of orders from residents for property, goods or services, to be delivered or rendered within the Nation to, or on their behalf, where the orders or contracts are executed by such residents within the Nation and where such orders or contracts are accompanied or followed by an earnest money deposit or other down payment or any installment payment thereon or any other form of payment, which payment is either delivered in or transmitted from the territorial jurisdiction of the Nation.
(4) Any act done as part of the conduct of a course of business with residents which defrauds such residents or otherwise involves or promotes an attempt by such foreign corporation to circumvent the laws of the Nation.
(d) Paragraphs (b), (c), (d) and (e) of section 307 (Service of process on unauthorized foreign corporation) shall apply to process served under paragraph (c).
110. RESERVATION OF POWER
The Oneida Indian Nation reserves the right, at pleasure, to alter, amend, suspend or repeal in whole or in part this Code, or any certificate of incorporation or any authority to do business in the Nation, of any domestic or foreign corporation, whether or not existing or authorized on the effective date of this Code.
111. EFFECT OF INVALIDITY OF PART OF CODE; SEVERABILITY
If any provision of this Code or application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this Code which can be given effect without the invalid provision or application, and to this end the provisions of this Code are declared severable.
112. REFERENCES
Unless otherwise stated, all references in this Code to chapters or sections refer to the chapters or sections of this Code, and all references in any section of this Code to a lettered or numbered paragraph or subparagraph refer to the paragraph or subparagraph so lettered or numbered in such section.
113. CODE NOT APPLICABLE TO CORPORATION CREATED BY NATION ORDINANCES
Corporate or other bodies created as instrumentalities of the Nation by Nation ordinance shall not be governed by the provisions of this Code.
114. SOVEREIGN IMMUNITY
The Nation does not by enacting this Code waive in any respect its sovereign immunity, or that of its agents, in any manner, under any law, for any purpose, nor in any place.
CHAPTER 2 - CORPORATE PURPOSES AND POWERS
201. PURPOSES
A corporation may be formed under this Code for any lawful business purpose or purposes.
202. GENERAL POWERS
(a) Each corporation, subject to any limitations provided in this Code or any other statute of the Nation or its certificate of incorporation, shall have power in furtherance of its corporate purposes:
(1) To have perpetual duration.
(2) To sue and be sued in all courts and to participate in actions and proceedings, whether judicial, administrative, arbitrative or otherwise, in like cases as natural persons.
(3) To have a corporate seal, and to alter such seal at pleasure, and to use it by causing it or a facsimile to be affixed or impressed or reproduced in any other manner.
(4) To purchase, receive, take by grant, gift, devise, bequest or otherwise, lease, or otherwise acquire, own, hold, improve, employ, use and otherwise deal in and with, real or personal property, or leasehold interest in real property or any interest therein, wherever situated.
(5) To sell, convey, lease, exchange, transfer or otherwise dispose of, or mortgage or pledge, or create a security interest in, all or any of its property, or any interest therein, wherever situated.
(6) To purchase, take, receive, subscribe for, or otherwise acquire, own, hold, vote, employ, sell, lend, lease, exchange, transfer, or otherwise dispose of, mortgage, pledge, use and otherwise deal in and with, bonds and other obligations, shares, or other securities or interests issued by others, whether engaged in similar or different business.
(7) To make contracts, give 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 mortgage or pledge of all or any of its property or any interest therein, wherever situated.
(8) To lend money, invest and reinvest its funds, and take and hold real and personal property as security for the payment of funds so loaned or invested.
(9) To do business, carry on its operations, and have offices and exercise the powers granted by this Code in any jurisdiction.
(10) To elect or appoint officers, employees and other agents of the corporation, define their duties, fix their compensation and the compensation of directors, and to indemnify corporate personnel.
(11) To adopt, amend or repeal by-laws, relating to the business of the corporation, the conduct of its affairs, its rights or powers or the rights or powers of its shareholders, directors or officers.
(12) To make donations, irrespective of corporate benefit, for the public welfare or for community fund, hospital, charitable, educational, scientific, civic or similar purposes, and in time of war or other national emergency in aid thereof.
(13) To pay pensions, establish and carry out pension, profit-sharing, share bonus, share purchase, share option, savings, thrift and other retirement, incentive and benefit plans, trusts and provisions for any or all of its directors, officers and employees.
(14) To purchase, receive, take, or otherwise acquire, own, hold, sell, lend, exchange, transfer or otherwise dispose of, pledge, use and otherwise deal in and with its own shares.
(15) To be a promoter, partner, member, associate or manager of other business enterprises or ventures, or to the extent permitted in any other jurisdiction to be an incorporator of other corporations of any type or kind.
(16) To have and exercise all powers necessary or convenient to affect any or all of the purposes for which the corporation is formed.
(b) No corporation shall do business under any name, other than that appearing in its certificate of incorporation, without filing, a $10.00 fee as set forth in subdivision five of this section, in the office of the Nation Clerk a certificate setting forth the name or designation under which business is carried on or conducted or transacted, its corporate name, the location, if any, of its principal place of business in the Nation and the name of each place where it carries on or conducts or transacts business. Each certificate shall be executed and duly acknowledged by an officer of the corporation. A corporation which carries on or conducts or transacts business within the territorial jurisdiction of the Nation as a member of a partnership shall not be required solely by reason thereof to file the certificate required by this paragraph if the partners shall have filed the certificate required by this section.
1-a. As used in this section, unless the context otherwise requires:
(a) "Person" shall mean an individual, partnership, limited partnership, corporation, and unincorporated association;
(b) The "real name" of a corporation shall mean its corporate name as set forth in its certificate of incorporation and any generally accepted, understood or recognizable abbreviations of such corporate name.
(c) The use by a corporation of a divisional, departmental or trade name or designation, in conjunction with the real name of the corporation, shall be deemed to be the use of the real name of the corporation for purposes of this section.
2.(a) No person or persons shall hereafter use or file a certificate for the use of any name or designation to carry on or conduct or transact business within the territorial jurisdiction of the Nation which consists of or includes words, or initials and a word or words, which are or appear to be the full name or names, or the initial or initials and family name of a person or persons, or a colorable simulation thereof, unless
(1) the words or initials and word or words appearing to be the full name or initial and family name of a person included, are the true full name or the initials and family name of the person or one of the persons conducting the business; or
(2) the words or initials and words so included, which are or appear to be the full name, or the initials and family name, of any person, have a secondary, historic or geographic meaning or connotation apart from that of a name of a person, and the name or designation contains a word or words clearly signifying such secondary, historic or geographic meaning or connotation, or is followed by the abbreviation "a.n.", and said secondary, historic or geographic meaning or connotation is stated in the certificate; or
(3) the person or persons conducting the business are successors in interest to the person or persons theretofore using such name or names to carry on or conduct or transact business, in which case the certificate filed shall so state.
(b) In addition to the prohibitions of paragraph (a) of this subdivision, no corporation shall use or file a certificate for the use of any name or designation to carry on or conduct or transact business within the territorial jurisdiction of the Nation which consists of or includes a word or words the use of which is prohibited by subparagraphs three though nine of paragraph a of section three hundred one of the business corporation code.
3. Whenever a certificate which has been filed under t h s section does not accurately set forth the facts required by this section, or within thirty days after there has been a change in such facts, an amended certificate shall be filed which shall identify the original certificate and incorporate the corrections or changes. If such amended certificate is filed for the purpose of adding or withdrawing the name of any person to the original certificate as a person conducting a business or as a partner, such amended certificate must be executed and acknowledged by such person and by any one or more of the other person named in the original or last amended certificate, unless otherwise provided by an order of the Nation Court. Any other amended Certificate may be executed and acknowledged by any one or more of the persons named therein as a person conducting the business or as a partner or, in the case of a corporation, by an officer of the corporation.
4. A certified copy of the original certificate, or if an amended certificate has been filed, then of the most recent amended certificate filed shall be conspicuously displayed on the premises at each place in which the business for which the same was filed is conducted.
5. The Nation Clerk shall keep an alphabetical index of all certificates, provided for herein, together with appropriate notations of the nature of amended certificates and certificates of discontinuance, and for the indexing and filing of such certificates shall receive a fee of twenty-five dollars.
6. A copy of a certificate filed under the provisions of this section, duly certified to by the Nation Clerk shall be presumptive evidence in the Nation court of the facts therein contained; provided, however, that neither the certificate itself nor the filing thereof shall, for any purpose other than this section, constitute or be construed as an admission by the filing person, or be used as evidence, that such person does or has done business or has carried on, conducted or transacted business in the Nation or intended to do so.
7. Subdivision one of this section shall not apply to a person who, or a partnership which, has duly filed a certificate of continued use of firm name under the Oneida Indian Nation partnership law, or to a partnership of attorneys and counselors-at-law engaged in the practice of their profession, and subdivision three of this section shall not apply to such a person or partnership who has filed a certificate of discontinuance under subdivision ten of this section.
8. The failure to comply with the provisions of this section shall in no way affect the rights of third persons, nor shall this section be deemed or construed to limit the liability of partners under the provisions of the partnership code.
8-a. The acceptance of a certificate by the Nation Clerk for filing pursuant to the provisions of this section shall not be construed to confer any right to or interest in any trade name; nor shall any of the provisions of this section be construed to affect the rights to, or the enforcement of any rights to, any trade name acquired at any time under any other law of the Nation.
9. Any person or persons carrying on, conducting or transacting business as aforesaid, who knowingly fails to comply with the provisions of this section or who knowingly makes a false statement in a certificate filed thereunder shall be guilty of a misdemeanor. Any person or persons carrying on, conducting or transacting business as aforesaid who fails to comply with the provisions of this section shall be prohibited from maintaining any action or proceeding in the Nation court on any contract, account or transaction made in a name other than its real name until the certificate required by this section has been executed and filed in accordance with the provisions set forth herein.
10. If the business for which a certificate is filed under this section is discontinued, or the conditions under which it is conducted are such that the filing of a certificate with the Nation Clerk is no longer required, a certificate of discontinuance may be filed with the Nation Clerk, identifying such certificate and also identifying the amended certificate, if any, last previously filed and certifying the facts by reason of which the filing of a certificate is no longer required. The Certificate of discontinuance shall be executed and acknowledged in the same manner as an original certificate and shall specify the date of which the discontinuance occurred or the conditions under which the business is conducted changed so that the filing of a certificate is no longer required. The Nation Clerk shall note the discontinuance. A certificate of discontinuance shall be executed by a majority of the persons named in the original certificate or the amended certificate last previously filed as persons conducting or transacting the business or as partners or, in the case of a corporation, by an officer of the corporation, provided that if any of them shall be deceased the certificate shall so state and may be executed and acknowledged by a majority of the survivors, or by the executor or administrator of a deceased person named in the original certificate or last previously filed amended certificate as the only person conducting or transacting the business, and provided further that any such signatures may be dispensed by order of the Nation Court.
203. DEFENSE OF ULTRA VIRES
(a) No act of a corporation and no transfer of real or personal property to or by a corporation, otherwise lawful, 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 transfer, but such lack of capacity or power may be asserted:
(1) In an action 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 under any contract to which the corporation is a party, the court may, if all of the parties to the contract are parties to the action 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, such compensation as may be equitable for the loss or damage sustained by any of them from the action of the court in setting aside and enjoining the performance of such contract; provided that anticipated profits to be derived from the performance of the contract shall not be awarded by the court as a loss or damage sustained.
(2) In an action by or in the right of the corporation to procure a judgment in its favor against an incumbent or former officer or director of the corporation for loss or damage due to his unauthorized act.
(3) In an action or special proceeding by the Nation Prosecutor to annul or dissolve the corporation or to enjoin it from the doing of unauthorized business.
CHAPTER 3 - CORPORATE NAME AND SERVICE OF PROCESS
301. CORPORATE NAME; GENERAL
(a) Except as otherwise provided in this Code, the name of a domestic or foreign corporation:
(1) Shall contain the word "corporation", "incorporated" or "limited", or an abbreviation of one of such words.
(2) Shall not be the same as the name of a corporation of any type or kind, or a fictitious name of an authorized foreign corporation filed pursuant to chapter thirteen of this Code, as such name appears on the index of names of existing domestic and authorized foreign corporations filed pursuant to chapter thirteen of this Code, in the Nation Clerk, or a name the right to which is reserved, or a name so similar to any such name as to tend to confuse or deceive.
(3) Shall be such as to distinguish it from the names of corporations of any type or kind, as such names appear on the index of names of existing domestic and authorized foreign corporations of any type or kind in the Nation Clerk, or names the right to which are reserved.
(4) Shall not contain any word or phrase, or any abbreviation or derivative thereof, the use of which is prohibited or restricted by any other statute or ordinance of the Nation, unless in the latter case the restrictions have been complied with.
(5) Shall not contain any word or phrase, or any abbreviation or derivative thereof, in a context which indicates or implies that the corporation, if domestic, is formed or, if foreign, is authorized for any purpose or is possessed within the territorial jurisdiction of the Nation of any power other than a purpose for which, or a power with which, the domestic corporation may be and is formed or the foreign corporation is authorized.
(6)
(A) Shall not contain any of the following phrases, or any abbreviation or derivative thereof:
Nation
Police
Oneida
Oneida Indian Nation(B) Shall not contain any of the following words, or any abbreviation or derivative thereof:
| acceptance | endowment | loan |
| annuity | fidelity |
mortgage |
| assurance | finance |
savings |
| bank | guaranty |
surety |
| benefit | indemnity | title |
| bond | insurance |
trust |
| casualty | investment |
underwrites |
| doctor |
lawyer |
unless the approval of the Oneida Indian Nation is attached to the certificate of incorporation, or application for authority or amendment thereof.
(7) Shall not contain any words or phrases, or any abbreviation or derivation thereof in a context which will tend to mislead the public into believing that the corporation is an agency or instrumentality of the Oneida Indian Nation.
(8) Shall not contain any word or phrase, or any abbreviation or derivation thereof, which, separately, or in context, shall be indecent or obscene, or shall ridicule or degrade any person, group, belief, business or agency of government, or indicate or imply any unlawful activity.
(9) Shall not, unless the approval of the Oneida Indian Nation is attached to the certificate of incorporation, or application for authority or amendment thereof, contain the word "exchange" or any abbreviation or derivative thereof. Such approval shall not be granted by the Oneida Indian Nation, if in the opinion the use of the word "exchange" in the proposed corporate name would falsely imply that the corporation conducts its business at a place where trade is carried on in securities or commodities by brokers, dealers, or merchants.
302. CORPORATE NAME; EXCEPTIONS
(a) Any reference to a corporation in this section except as otherwise provided herein shall include both domestic and foreign corporations.
(b) The provisions of section 301 (Corporate Name; General):
(1) Shall not prevent a corporation with which another corporation is merged, or which is formed by the reorganization or consolidation of one or more other corporations or upon a sale, lease, exchange or other disposition to a domestic corporation of all or substantially all the assets of another domestic corporation, including its name, as provided in paragraph (b) of Section 909 (Sale, lease, exchange or other disposition of assets), from having the same name as any of such corporations if at the time such other corporation was authorized or existing under any statute of the Nation.
(2) Shall not prevent a foreign corporation from being authorized under a name which is similar to the name of a corporation of any type or kind existing or authorized under any statute, if the Nation Clerk finds, upon proof by affidavit or otherwise as it may determine, that a difference between such names exists in the terms or abbreviations indicating corporate character or otherwise, that the applicant has engaged in business as a corporation under its said name for not less than ten consecutive years immediately prior to the date of its application that the business to be conducted in the Nation is not the same as or similar to the business conducted by the corporation with whose name it may conflict and that the public is not likely to be confused or deceived, and if the applicant shall agree in its application for authority to use with its corporate name, in the Nation, to be placed immediately under or following such name, the words ''a ....( name of jurisdiction of incorporation) corporation".
(3) Shall not prevent a ''small business investment corporation'' as such term is defined in the United States "Small Business Investment Act of 1958" from including the word "investment" as part of its name if such word is coupled with the words "small business".
(4) Shall not prevent an "investment company'' as such term is defined in the United States "Investment Company Act of 1940" from including the word "finance" or "bond" as part of its name, if the approved bank regulations is attached to the certificate of incorporation, application for authority, or amendment thereof.
(5) Shall not prevent a broker or dealer in securities, as such term is defined in the United States "Securities Exchange Act of 1934", from including the words "investment" as part of its name if such word is coupled with the words "broker" or "brokers" and if such broker or dealer is registered under the United States law.
(6) Shall not prevent an association of banks or trust companies organized as a non-profit membership corporation for the promotion of the interests of member banks from including the word "bankers" as part of its corporate name.
(7) Shall not prevent a bank holding company, as long as it is required to be registered under the laws of other sovereigns as each may be amended from time to time, from using the words "bank", "banker" or "trusts" or any abbreviation, derivative or combination thereof as part of its corporate name, if the approval of the superintendent of banks of that sovereign is attached to the certificate of incorporation, application for authority, or amendment thereof.
303. RESERVATION OF NAME
(a) A corporate name may be reserved by:
(1) Any person intending to form a domestic corporation.
(2) Any domestic corporation intending to change its name.
(3) Any foreign corporation intending to apply for authority to do business within the territorial jurisdiction of the Nation.
(4) Any authorized foreign corporation intending to change its name.
(5) Any person intending to incorporate a foreign corporation and to have it apply for authority to do business within the territorial jurisdiction of the Nation.
(b) A fictitious name for use pursuant to section 1301 of this Code, may be reserved by:
(1) Any foreign corporation intending to apply for authority to do business in the Nation, pursuant to paragraph (d) of section 1301 of this Code.
(2) Any authorized foreign corporation intending to change its fictitious name under which it does business in the Nation.
(3) Any authorized foreign corporation which has changed its corporate name in its jurisdiction, such new corporate name not being available in the Nation.
(c) Application to reserve a corporate or fictitious name shall be delivered to the Nation Clerk. It shall set forth the name and address of the applicant, the name to be reserved and a statement of the basis under paragraph (a) or (b) for the application. The Nation Clerk may require that there be included in the application a statement as to the nature of the business to be conducted by the corporation. If the name is available for corporate use, the Nation Clerk shall reserve the name for the use of the applicant for a period of sixty days and issue a certificate of reservation. The restrictions and qualifications set forth in subparagraphs (a)(3), (4), (9, (6), and (7) of section 301 (Corporate name; general) are not waived by the issuance of a certificate of reservation. The certificate of reservation shall include the name of the applicant, the name reserved and the date of the reservation. The certificate of reservation (or in lieu thereof an affidavit by the applicant or by his agent or attorney that the certificate of reservation has been lost or destroyed) shall accompany the certificate of incorporation or the application for authority when either is delivered to the Nation Clerk.
(d) The Nation Clerk may extend the reservation for additional periods of not more than sixty days each, upon the written request of the applicant, his attorney or agent delivered to the Nation Clerk, to be filed before the expiration of the reservation period in effect. Such request shall have attached to it the certificate of reservation of name. Not more than two such extensions shall be granted.
(e) Upon the request of the applicant, delivered to the Nation Clerk before the expiration of the reserved period, the Secretary shall cancel the reservation.
(f) Any application or request under this section shall be signed by the applicant, his attorney or agent.
304. STATUTORY DESIGNATION OF NATION CLERK AS AGENT FOR SERVICE OF
PROCESS
(a) The Nation Clerk shall be the agent of every domestic corporation and every authorized foreign corporation upon whom process against the corporation may be served.
(b) No domestic or foreign corporation may be formed or authorized to do business in the Nation under this Code unless in its certificate of incorporation or application for authority it designates the Nation Clerk as such agent.
(c) Any designation by a domestic or a foreign corporation of the Nation Clerk as such agent, which designation is in effect on the effective date of this chapter, shall continue. Every domestic or foreign corporation, existing or authorized on the effective date of this chapter, which has not designated the Nation Clerk as such agent, shall be deemed to have done so. Any designation prior to the effective date of this chapter by a foreign corporation of an agent other than the Nation Clerk shall terminate on the effective date of this chapter.
(d) Any designated post-office address to which the Nation Clerk shall mail a copy of process served upon him as agent of a domestic corporation or a foreign corporation, shall continue until the filing of a certificate under this chapter directing the mailing to a different post-office address.
305. REGISTERED AGENT FOR SERVICE OF PROCESS
(a) In addition to such designation of the Nation Clerk, every domestic corporation or authorized foreign corporation may designate a registered agent in the Nation upon whom process against such corporation may be served. The agent shall be a natural person who is a resident of or has a business address in the Nation or a domestic corporation or foreign corporation of any type or kind formed, or authorized to do business in the Nation, under this chapter or under any other statute of the Nation.
(b) Any such designation of a registered agent may be made, revoked or changed as provided in this chapter.
(c) A registered agent may resign as such agent. A certificate entitled "Certificate of resignation of registered agent of ....(name of designating corporation) under section 305 of the Business Corporation Code", shall be signed, verified by him and delivered to the Nation Clerk. It shall set forth:
(1) That he resigns as registered agent for the designating corporation.
(2) The date the certificate of incorporation or the application for authority of the designating corporation was filed by the Nation Clerk.
(3) That he has sent a copy of the certificate of resignation by registered mail to the designating corporation at the post office address on file with the Nation Clerk specified for the mailing of process or if such address is the address of the registered agent, then to the office of the designating corporation in the jurisdiction of its formation or incorporation.
(d) The designation of a registered agent shall terminate thirty days after the filing by the Nation Clerk of a certificate of resignation or a certificate containing a revocation or change of the designation, whichever is filed earlier. A certificate designating a new registered agent may be delivered to the Nation Clerk by the corporation within the thirty days or thereafter.
306. SERVICE OF PROCESS
Service of process on a registered agent may be made in the manner provided by the Oneida Indian Nation Rules of Civil Procedure for the service of summons, as if the registered agent was a defendant.
307. SERVICE OF PROCESS ON UNAUTHORIZED FOREIGN CORPORATION
(a) In any case in which a non-domiciliary would be subject to the personal or other jurisdiction of the courts of the Nation, a foreign corporation not authorized to do business within the territorial jurisdiction of the Nation is subject to a like jurisdiction. In any such case, process against such foreign corporation may be served upon the Nation Clerk as its agent. Such process may issue in the Nation court.
(b) Service of such process upon the Nation Clerk shall be made by personally delivering to and leaving with him, a copy of such process. Such service shall be sufficient if notice thereof and a copy of the process are:
(1) Delivered personally to such foreign corporation by a person and in the manner authorized to serve process by law of the jurisdiction in which service is made, or
(2) Sent by or on behalf of the plaintiff to such foreign corporation by registered mail with return receipt requested, at the post office address specified for the purpose of mailing process, on file in the office of the Nation Clerk, or if no such address is there specified, to its registered or other office there specified, or if no such office is there specified, to the last address of such foreign corporation known to the plaintiff.
(c)
1. Where service of a copy of process was effected by personal service, proof of service shall be by affidavit of compliance with this section filed, together with the process, within thirty days after such service, with the clerk of the court. Service of process shall be complete ten days after such papers are filed with the clerk.
2. Where service of a copy of process was effected by mailing in accordance with this section, proof of service shall be by affidavit of compliance with this section filed, together with the process, within thirty days after receipt of the return receipt signed by the foreign corporation, or other official proof of delivery or of the original envelope mailed. If a copy of process is mailed in accordance with this section, there shall be filed with the affidavit of compliance either the return receipt signed by such foreign corporation or other official proof of delivery or, if acceptance was refused by it, the original envelope with a notation by the postal authorities that acceptance was refused. If acceptance was refused, a copy of the notice and process together with notice of the mailing by registered mail and refusal to accept shall be promptly sent to such foreign corporation at the same address by ordinary mail and the affidavit of compliance shall so state. Service of process shall be complete ten days after such papers are filed with the clerk of the court. The refusal to accept delivery of the registered mail or to sign the return receipt shall not affect the validity of the service and such foreign corporation refusing to accept such registered mail shall be charged with knowledge of the contents thereof.
(d) Service made within the territorial jurisdiction of the Nation as provided in this section shall have the same force as personal service made within the Nation.
(e) Nothing in this section shall affect the right to serve process in any other manner permitted by law.
308. RECORDS AND CERTIFICATES OF NATION CLERK
The Nation Clerk shall keep a record of each process served upon the Nation Clerk under this chapter, including the date of service. It shall, upon request made within ten years of such service, issue a certificate under its seal certifying as to the receipt of the process by an authorized person, the date and place of such service and the receipt of the statutory fee. Process served upon the Nation Clerk under this chapter shall be destroyed by him after a period of ten years from such service.
CHAPTER 4 - FORMATION OF CORPORATIONS
401. INCORPORATORS
One or more natural persons of the age of eighteen years or over may act as incorporators of a corporation to be formed under this chapter.
402. CERTIFICATE OF INCORPORATION; CONTENTS
(a) A certificate, entitled "Certificate of incorporation of .......... (name of corporation) under section 402 of the Business Corporation Code", shall be signed by each incorporator, with his name and address stated beneath or opposite his signature, acknowledged and delivered to the Nation Clerk. It shall set forth:
(1) The name of the corporation.
(2) The purpose or purposes for which it is formed, it being sufficient to state, either alone or with other purposes, that the purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under this Code, provided that it also states that it is not formed to engage in any act or activity requiring the consent or approval of a Nation official, without such consent or approval first being obtained. By such statement all lawful acts and activities shall be within the purposes of the corporation, except for express limitations therein or in this Code, if any.
(3) The address of the office of the corporation.
(4) The aggregate number of shares which the corporation shall have the authority to issue; if such shares are to consist of one class only, the par value of the shares or a statement that the shares are without par value; or, if the shares are to be divided into classes, the number of shares of each class and the par value of the shares having par value and a statement as to which shares, if any, are without par value.
(5) If the shares are to be divided into classes, the designation of each class and a statement of the relative rights, preferences and limitations of the shares of each class.
(6) If the shares of any preferred class are to be issued in series, the designation of each series and a statement of the variations in the relative rights, preferences and limitations as between series insofar as the same are to be fixed in the certificate of incorporation, and a statement of any authority to be vested in the board to establish and designate series and to fix the variations in the relative rights, preferences and limitations as between series.
(7) A designation of the Nation Clerk as agent of the corporation upon whom process against it may be served and the post office address to which the Nation Clerk shall mail a copy of any process against it served upon him.
(8) If the corporation is to have a registered agent, his name and address and a statement that the registered agent is to be the agent of the corporation upon whom process against it may be served.
(9) The duration of the corporation if other than perpetual.
(b) The certificate of incorporation may set forth a provision eliminating or limiting the personal liability of directors to the corporation or its shareholders for damages for any breach of duty in such capacity, provided that no such provision shall eliminate or limit:
(1) the liability of any director if a judgment or other final adjudication adverse to him establishes that his acts or omissions were in bad faith or involved intentional misconduct or a knowing violation of law; or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled; or that his act violated section 719, or
(2) the liability of any director for any act or omission prior to the adoption of a provision authorized by this paragraph.
(c) The certificate of incorporation may set forth any provision, not inconsistent with this Code or any other statute of the Nation, relating to the business of the corporation, its affairs, its rights or powers, or the rights or powers of its shareholders, directors or officers including any provision relating to matters which under this chapter are required or permitted to be set forth in the by-laws. It is not necessary to set forth in the certificate of incorporation any of the powers enumerated in this chapter.
403. CERTIFICATE OF INCORPORATION; EFFECT
Upon the filing of the certificate of incorporation by the Nation Clerk, the corporate existence shall begin, and such certificate shall be conclusive evidence that all conditions precedent have been fulfilled and that the corporation has been formed under this chapter, except in an action or special proceeding brought by the Nation Prosecutor. Notwithstanding the above, a certificate of incorporation may set forth a date subsequent to filing, not to exceed ninety days after filing, upon which date corporate existence shall begin.
404. ORGANIZATION MEETING
(a) After the corporate existence has begun, an organization meeting of the incorporator or incorporators shall be held for the purpose of adopting by-laws, electing directors to hold office until the first annual meeting of shareholders, except as authorized under section 704 (Classification of directors), and the transaction of such other business as may come before the meeting. If there are two or more incorporators, the meeting may be held at the call of any incorporator, who shall give at least five days' notice thereof by mail to each other incorporator, which notice shall set forth the time and place of the meeting. Notice need not be given to any incorporator who attends the meeting or submits a signed waiver of notice before or after the meeting. If there are more than two incorporators, a majority shall constitute a quorum and the act of the majority of the incorporators present at a meeting at which a quorum is present shall be the act of the incorporator or his attorney-in-fact.
(b) Any action permitted to be taken at the organization meeting may be taken without a meeting if each incorporator or his attorney-in-fact signs an instrument setting forth the action so taken.
(c) If an incorporator dies or is for any reason unable to act, action may be taken as provided in such event in paragraph (c) of section 615 (Written consent of shareholders, subscribers or incorporators without a meeting).
405. DAY CARE CENTER FOR CHILDREN; APPROVAL OF CERTIFICATE
Every certificate of incorporation which includes among its corporate purposes the establishment or operation of a day care center for children shall have endorsed thereon or annexed thereto the approval of the Oneida Indian Nation.
406. FILING OF A CERTIFICATE OF INCORPORATION; FACILITY FOR ALCOHOLISM
OR ALCOHOL ABUSE
Every certificate of incorporation which includes among its corporate purposes the establishment or operation of a program of services for alcoholism or alcohol abuse shall have endorsed thereon or annexed thereto the approval of the Oneida Indian Nation.
407. SUBSTANCE ABUSE PROGRAM; CONSENT TO CERTIFICATE
Every certificate of incorporation which includes among the purposes of the corporation, the establishment or operation of a substance abuse program shall have endorsed thereon or annexed thereto the consent of the Oneida Indian Nation.
408. STATEMENT OF ADDRESSES AND DIRECTORS; FILING
1. Each domestic corporation, and each foreign corporation authorized to do business within the territorial jurisdiction of the Nation, shall, during the applicable filing period as determined by subdivision three of this section, file a statement setting forth:
(a) The name and respective business address of its chairman of the board of directors.
(b) The street address of it principal executive office.
(c) The post office address to which the Nation Clerk shall mail a copy of any process against it served upon him or her. Such address shall supersede any previous address on file with the Nation Clerk for this purpose.
2. Such statement shall be made on forms prescribed by the Nation Clerk, and the information therein contained shall be given as of the date of the execution of the statement. Such statement shall only request reporting of information required under subdivision one of this section. It shall be signed, verified and delivered to the Nation Clerk.
3. For the purpose of this section the applicable filing period for a corporation shall be the calendar month during which its original certificate of incorporation or application for authority were filed or the effective date thereof if stated. The applicable filing period shall occur annually.
409. PENALTY FOR FAILURE TO FILE; CURE
1. Each corporation which has failed to file its statement within the time required by this chapter after thirty days shall be shown to be past due on the records of the Nation Clerk.
2. Each corporation which has failed to file its statement for two years shall be shown to be delinquent on the records of the Nation Clerk sixty days after a notice of delinquency has been mailed to the last known address of such corporation. Such delinquency shall be removed from the records of the Nation Clerk upon the filing of the current statement required by section four hundred eight of this Code, and the payment of a fine of two hundred fifty dollars.
3. The notice of delinquency shall state the cure and fine for such delinquency as determined by subdivision two of this section and the period during which such delinquency shall be forborne without the imposition of such fine.
501. AUTHORIZED SHARES
(a) Every corporation shall have power to create and issue the number of shares stated in its certificate of incorporation. Such shares may be all of one class or may be divided into two or more classes. Each class shall consist of either shares with par value or shares without par value, having such designation and such relative voting, dividend, liquidation and other rights, preferences and limitations, consistent with this Code, as shall be stated in the certificate of incorporation. The certificate of incorporation may deny, limit or otherwise define the voting rights and may limit or deny, limit or otherwise define the voting rights and may limit or otherwise define the dividend or liquidation rights of shares of any class, but no such denial, limitation or definition of voting rights shall be effective unless at the time one or more classes of outstanding shares or bonds, singly or in the aggregate, are entitled to full voting rights, and no such limitation or definition of dividend or liquidation rights shall be effective unless at the time one or more classes of outstanding shares, singly or in the aggregate, are entitled to unlimited dividend and liquidation rights.
(b) If the shares are divided into two or more classes, the shares of each class shall be designated to distinguish them from the shares of all other classes. Shares which are entitled to preference in the distribution of dividends or assets shall not be designated as common shares. Shares which are not entitled to preference in the distribution of dividends or assets shall be common shares, even if identified by a class or other designation, and shall not be designated as preferred shares.
(c) Subject to the designations, relative rights, preferences and limitations applicable to separate series and except as otherwise permitted by subparagraph two of paragraph (a) of section five hundred five of this chapter, each share shall be equal to every other share of the same class.
502. ISSUE OF ANY CLASS OF PREFERRED SHARES IN SERIES
(a) If the certificate of incorporation so provides, a corporation may issue any class of preferred shares in series. Shares of each such series when issued, shall be designated to distinguish them from shares of all other series.
(b) The number of shares included in any or all series of any classes of preferred shares and any or all of the designations, relative rights, preferences and limitations of any or all such series may be fixed in the certificate of incorporation, subject to the limitation that, if the stated dividends and amounts payable on liquidation are not paid in full, the shares of all series of the same class shall share ratably in the payment of dividends including accumulations, if any, in accordance with the sums which would be payable on such shares if all dividends were declared and paid in full, and in any distribution of assets other than by way of dividends in accordance with the sums which would be payable on such distribution if all sums payable were discharged in full.
(c) If any such number of shares or any such designation, relative right, preference or limitation of the shares of any series is not fixed in the certificate of incorporation, it may be fixed by the board, to the extent authorized by the certificate of incorporation.
(d) Before the issue of any shares of a series established by the board, a certificate of amendment under section 805 (Certificate of amendment; contents) shall be delivered to the Nation Clerk. Such certificate shall set forth:
(1) The name of the corporation, and, if it has been changed, the name under which it was formed.
(2) The date the certificate of incorporation was filed by the Nation Clerk.
(3) That the certificate of incorporation is thereby amended by the addition of a provision stating the number, designation, relative rights, preferences, and limitations of the shares of the series as fixed by the board, setting forth in full the text of such provision.
503. SUBSCRIPTION FOR SHARES; TIME OF PAYMENT, FORFEITURE FOR DEFAULT
(a) Unless otherwise provided by the terms of the subscription, a subscription for shares of a corporation to be formed shall be irrevocable, except with the consent of all other subscribers or the corporation, for a period of three months from its date.
(b) A subscription, whether made before or after the formation of a corporation, shall not be enforceable unless in writing and signed by the subscriber.
(c) Unless otherwise provided by the terms of the subscription, subscriptions for shares, whether made before or after the formation 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. Any call made by the board for payment on subscriptions shall be uniform as to all shares of the same class or of the same series. If a receiver of the corporation has been appointed, all unpaid subscriptions shall be paid at such times and in such installments as such receiver or the court may direct.
(d) In the event of default in the payment of any installment or call when due, the corporation may proceed to collect the amount due in the same manner as any debt due the corporation or the board may declare a forfeiture of the subscriptions. The subscription agreement may prescribe other penalties, not amounting to forfeiture, for failure to pay installments or calls that may become due. No forfeiture of the subscription shall be declared as against any subscriber unless the amount due thereon shall remain unpaid for a period of thirty days after written demand has been made therefore. 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 post office address known to the corporation, with postage thereon prepaid. Upon forfeiture of the subscription, if at least fifty percent of the subscription price has been paid, the share subscribed for shall be offered for sale for cash at a price at least sufficient to pay the full balance owed by the delinquent subscriber plus the expenses incidental to such sale, and any excess of net proceeds realized over the amount owed on such shares shall be paid to the delinquent subscriber or to his legal representative. If no prospective purchaser offers a cash price sufficient to pay the full balance owed by the delinquent subscriber plus the expenses incidental to such sale, or if less than fifty percent of the subscription price has been paid, the shares subscribed for shall be canceled and restored to the status of authorized but unissued shares and all previous payments thereon shall be forfeited to the corporation and transferred to capital surplus.
504. CONSIDERATION AND PAYMENT FOR SHARES
(a) Consideration for issue of shares shall consist of money or other property, tangible or intangible, or labor or services actually received by or performed for the corporation or for its benefit or in its formation or reorganization, or a combination thereof. In the absence of fraud in the transaction, the judgment of the board or shareholders, as the case may be, as to the value of the consideration received for shares shall be conclusive.
(b) Neither obligations of the subscriber for future payments nor future services shall constitute payment or part payment for shares of a corporation.
(c) Shares with par value may be issued for such consideration, not less than the par value thereof, as if fixed from time to time by the board.
(d) Shares without par value may be issued for such consideration as is fixed from time to time by the board unless the certificate of incorporation reserves to the shareholders the right to fix the consideration. If such right is reserved as to any shares, a vote of the shareholders shall either fix the consideration to be received for the shares or authorize the board to fix such consideration.
(e) Treasury shares may be disposed of by a corporation on such terms and conditions as are fixed from time to time by the board.
(f) Upon distribution of authorized but unissued shares to shareholders, that part of the surplus of a corporation which is concurrently transferred to stated capital shall be the consideration for the issue of such shares.
(g) hi the event of a conversion of bonds or shares into shares, or in the event of an exchange of bonds or shares for shares, with or without par value, the consideration for the shares so issued in exchange or conversion shall be the sum of (1) either the principal sum of, and accrued interest on, the bonds so exchanged or converted, or the stated capital represented by the shares so exchanged or converted, plus (2) any additional consideration paid to the corporation for the new shares, plus (3) any stated capital not theretofore allocated to any designated class or series which is thereupon allocated to the new shares, plus (4) any surplus thereupon transferred to stated capital and allocated to the new shares.
(h) Certificates for shares may not be issued until the full amount of the consideration therefore has been paid, except as provided in paragraphs (e) and (0 of section 505 (Rights and options to purchase shares; issue of rights and options to directors, officers and employees).
(i) When the consideration for shares has been paid in full, the subscriber shall be entitled to all the rights and privileges of a holder of such shares and to a certificate representing his shares, and such shares shall be fully paid and nonassessable.
505. RIGHTS AND OPTIONS TO PURCHASE SHARES; ISSUE OF RIGHTS AND OPTIONS
TO DIRECTORS, OFFICERS AND EMPLOYEES
(a)
(1) Except as otherwise provided in this section or in the certificate of incorporation, a corporation may create and issue, whether or not in connection with the issue and sale of any of its shares or bonds, rights or options entitling the holders thereof to purchase from the corporation, upon such consideration, terms and conditions as may be fixed by the board, shares of any class or series, whether authorized but unissued shares, treasury shares or shares to be purchased or acquired or assets of the corporation.
(2)
(i) In the case of a resident domestic corporation that has a class of voting stock registered with the United States Securities and Exchange Commission pursuant to section twelve of the United States Exchange Act, the terms and conditions of such rights or operations may include, without limitation, restrictions or conditions that preclude or limit the exercise, transfer or receipt of such rights or operations by an interested shareholder or any transferee of any such interested shareholder or that invalidate or void such rights or operations held by any such interested shareholder or any such transferee. For the purposes of this subparagraph, the terms "resident domestic corporation", "voting stock:, "Exchange Act" and "interested shareholder" shall have the same meanings as set forth in section nine hundred twelve of this Code.
(ii) Determinations of the board of directors whether to impose, enforce or waive or otherwise render ineffective such limitations or conditions as are permitted by clause (i) of this subparagraph shall be subject to judicial review in an appropriate proceeding in which the Nation court formulates or applies appropriate standards in order to insure that such limitations or conditions are imposed, enforced or waived in the best long-term interests and short-term interests of the corporation and its shareholders considering, without limitation, the prospect for potential growth, development, productivity and profitability of the corporation.
(b) The consideration for shares to be purchased under any such right or option shall comply with the requirements of section 504 (Consideration and payment for shares).
(c) The terms and conditions of such rights or options, including the time or times at or within which and the price or prices at which they may be exercised and any limitations upon transferability, shall be set forth or incorporated by reference in the instrument or instruments evidencing such rights or options.
(d) The issue of such rights or options to one or more directors, officers or employees of the corporation or a subsidiary or affiliate thereof, as an incentive to service or continued service with the corporation, a subsidiary or affiliate thereof, or to a trustee on behalf of such directors, officers or employees, shall be authorized at a meeting of shareholders by the vote of the holders of a majority of all outstanding shares entitled to vote thereon, or authorized by and consistent with and adopted by such vote of shareholders. If, under the certificate of incorporation, there are preemptive rights to any of the shares to be thus subject to rights or options to purchase, either such issue or such plan, if any shall also be approved by the vote or written consent of the holders of a majority of the shares entitled to exercise preemptive rights with respect to such shares and such vote or written consent shall operate to release the preemptive rights with respect thereto of the holders of all the shares that were entitled to exercise such preemptive rights. In the absence of preemptive rights, nothing in this paragraph shall require shareholder approval for the issuance of rights or options to purchase shares of the corporation in substitution for, or upon the assumption of, rights or options issued by another corporation, if such substitution or assumption is in connection with such other corporation's merger or consolidation with, or the acquisition of its shares or all or part of its assets by, the corporation or its subsidiary.
(e) A plan adopted by the shareholders for the issue of rights or options to directors, officers or employees shall include the material terms and conditions upon which such rights or options are to be issued, such as, but without limitation thereof, any restrictions on the number of shares that eligible individuals may have the right or option to purchase, the method of administering the plan, the terms and conditions of payment for shares in full or in installments, the issue of certificate for shares to be paid for in installments, any limitations upon the transferability of such shares and the voting and dividend rights to which the holders of such shares may be entitled, though the full amount of the consideration therefore has not been paid; provided that under this section no certificate for shares shall be delivered to a shareholder, prior to full payment therefore, unless the fact that the shares are partly paid is noted conspicuously on the face or back of such certificate.
(f) If there is shareholder approval for the issue of rights or options to individual directors, officers or employees, but not under an approved plan under paragraph (e), the terms and conditions of issue set forth in paragraph (e) shall be permissible except that the grantees of such rights or options shall not be granted voting or dividend rights until the consideration for the shares to which they are entitled under such rights or options has been fully paid.
(g) If there is shareholder approval for the issue of rights and options, such approval may provide that the board is authorized by certificate of amendment under section 805 (Certificate of amendment; contents) to increase the authorized shares of any class or series to such number as will be sufficient, when added to the previously authorized but unissued shares of such class or series, to satisfy any such rights or options entitling the holders thereof to purchase from the corporation authorized but unissued shares of such class or series.
(h) hi the absence of fraud in the transaction, the judgment of the board shall be conclusive as to the adequacy of the consideration, tangible or intangible, received or to be received by the corporation for the issue of rights or options for the purchase from the corporation of its shares.
(i) The provisions of this section are inapplicable to the rights of the holders of convertible shares or bonds to acquire shares upon the exercise of conversion privileges under section 519 (Convertible shares and bonds).
506. DETERMINATION OF STATED CAPITAL
(a) Upon issue by a corporation of shares with a par value, the consideration received therefore shall constitute stated capital to the extent of the par value of such shares.
(b) Upon issue by a corporation of shares without par value, the entire consideration received therefore shall constitute stated capital unless the board within a period of sixty days after issue allocates to surplus a portion, but not all, of the consideration received for such shares. No such allocation shall be made of any portion of the consideration received for shares without par value having a preference in the assets of the corporation upon involuntary liquidation except all or part of the amount, if any, of such consideration in excess of such preference, nor shall such allocation be made of any portion of the consideration for the issue of shares without par value which is fixed by the shareholders pursuant to a right reserved in the certificate of incorporation, unless such allocation is authorized by vote of the shareholders.
(c) The stated capital of a corporation may be increased from time to time by resolution of the board transferring all or part of the surplus of the corporation to stated capital. The board may direct that the amount so transferred shall be stated capital in respect of any designated class or series of shares.
507. COMPENSATION FOR FORMATION, REORGANIZATION AND FINANCING
The reasonable charges and expenses of formation 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 the corporation out of the consideration received by it in payment for its shares without thereby impairing the fully paid and nonassessable status of such shares.
508. CERTIFICATES REPRESENTING SHARES
(a) The shares of a corporation shall be represented by certificates or shall be uncertificated shares. Certificates shall be signed by the chairman or a vice-chairman of the board, or the president or a vice-president, and the secretary or an assistant secretary, or the treasurer or an assistant treasurer of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof. The signatures of the officers upon a certificate may be facsimiles if; (1) the certificate is countersigned by a transfer agent or registered by a registrar other than the corporation itself or its employee, or (2) the shares are listed on a registered national security exchange. In case any officer who has signed or whose facsimile signature has been placed upon a 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 issue.
(b) Each certificate representing shares issued by a corporation which is authorized to issue shares 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 designation, relative rights, preferences and limitations of each such series so far as the same have been fixed and the authority of the board to designate and fix the relative rights, preferences and limitations of other series.
(c) Each certificate representing shares shall state upon the face thereof:
(1) That the corporation is formed under the laws of the Oneida Indian Nation.
(2) The name of the person or persons to whom issued.
(3) The number and class of shares, and the designation of the series, if any, which such certificate represents.
(d) Shares shall be transferable in the manner provided by law and in the by-laws.
(e) The corporation may issue a new certificate for shares in place of any certificate theretofore issued by it, alleged to have been lost or destroyed, and the board may require the owner of the lost or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against it on account of the alleged loss or destruction of any such certificate or the issuance of any such new certificate.
(f) Unless otherwise provided by the articles of incorporation or by-laws, the board of directors of a corporation may provide by resolution that some or all of any or all classes and series of its shares shall be uncertificated shares, provided that such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the corporation. Within a reasonable time after the issuance or transfer of uncertified shares, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to paragraphs (b) and (c) of this section. Except as otherwise expressly provided by law, the rights and obligations of the holders of uncertificated shares and the rights and obligations of the holders of certificates representing shares of the same class and series shall be identical.
509. FRACTIONS OF A SHARE OR SCRIP AUTHORIZED
(a) A corporation may, but shall not be obliged to, issue fractions of a share either represented by a certificate or uncertificated where necessary to effect share transfers, share distributions or reclassification, mergers, consolidations or reorganizations, which shall entitle the holder, in proportion to his fractional holdings, to exercise voting rights, receive dividends and participate in liquidating distributions.
(b) As an alternative, a corporation may pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined.
(c) As an alternative, a corporation may issue scrip in registered or bearer form over the manual or facsimile signature of an officer of the corporation or of its agent, exchangeable as therein provided for full shares, but such scrip shall not entitle the holder to any rights of a shareholder except as therein provided. Such scrip may be issued subject to the condition that it shall become void if not exchanged for certificates representing full shares or uncertified full shares before a specified date, or subject to the condition that the shares for which such scrip is exchangeable may be sold by the corporation and the proceeds thereof distributed to the holders of such scrip, or subject to any other conditions which the board may determine.
(d) A corporation may provide reasonable opportunity for persons entitled to fractions of a share or scrip to sell such fractions of a share or scrip or to purchase such additional fractions of a share or scrip as may be needed to acquire a full share.
510. DIVIDENDS OR OTHER DISTRIBUTIONS IN CASH OR PROPERTY
(a) A corporation may declare and pay dividends or make other distributions in cash or its bonds or its property, including the shares or bonds of other corporations, on its outstanding shares, except when currently the corporation is insolvent or would thereby be made insolvent, or when the declaration, payment or distribution would be contrary to any restrictions contained in the certificate of incorporation.
(b) Dividends may be declared or paid and other distributions may be made out of surplus only, so that the net assets of the corporation remaining after such declaration, payment or distribution shall at least equal the amount of its stated capital; except that a corporation engaged in the exploitation of natural resources or other wasting assets, including patents, or formed primarily for the liquidation of specific assets, may declare and pay dividends or make other distributions in excess of its surplus, computed after taking due account of depletion and amortization, to the extent that the cost of the wasting or specific assets has been recovered by depletion reserves, amortization or sale, if the net assets remaining after such dividends or distributions are sufficient to cover the liquidation preferences of share having such preferences in involuntary liquidation.
(c) When any dividend is paid or any other distribution is made, in whole or in part, from sources other than earned surplus, it shall be accompanied by a written notice (1) disclosing the amounts by which such dividend or distribution affects stated capital, capital surplus and earned surplus, or (2) if such amounts are not determinable at the time of such notice, disclosing the approximate effect of such dividend or distribution upon stated capital, capital surplus and earned surplus and stating that such amounts are not yet determinable.
511. SHARE DISTRIBUTIONS AND CHANGES
(a) A corporation may make pro rata distributions of its authorized but unissued shares to holders of any class or series of its outstanding shares, subject to the following conditions:
(1) If a distribution of shares having a par value is made, such shares shall be issued at not less than the par value thereof and there shall be transferred to stated capital at the time of such distribution an amount of surplus equal to the aggregate par value of such shares.
(2) If a distribution of shares without par value is made, the amount of stated capital to be represented by each such share shall be fixed by the board, unless the certificate of incorporation reserves to the shareholders the right to fix the consideration for the issue of such shares, and there shall be transferred to stated capital at the time of such distribution an amount of surplus equal to the aggregate stated capital represented by such shares.
(3) A distribution of shares of any class or series may be made only to holders of the same class or series of shares unless the certificate of incorporation permits distribution, subject to the preemptive rights of holders of any outstanding shares, to holders of another class or series, or unless such distribution is approved, when there are no outstanding preemptive rights, by the affirmative vote or the written consent of the holders of a majority of the outstanding shares of the class or series to be distributed.
(b) A corporation making a pro rata distribution of authorized but unissued shares to the holders of any class or series of outstanding shares may at its option make an equivalent distribution upon treasury shares of the same class or series, and any shares so distributed shall be treasury shares.
(c) A change of issued shares of any class which increases the stated capital represented by those shares may be made if the surplus of the corporation is sufficient to permit the transfer, and a transfer is concurrently made, from surplus to stated capital, of an amount equal to such increase.
(d) No transfer from surplus to stated capital need be made by a corporation malting a distribution of its treasury shares to holders of any class of outstanding shares; nor upon a split up or division of issued shares of any class into greater number of shares of the same class, or a combination of issued shares of any class into a lesser number of shares of the same class, if there is no increase in the aggregate stated capital represented by them.
(e) Nothing in this section shall prevent a corporation from making other transfers from earned surplus to stated capital or capital surplus in connection with share distributions or otherwise.
(f) Every distribution to shareholders of certificates representing a share distribution or a change of shares which affects stated capital, capital surplus or earned surplus shall be accompanied by a written notice (1) disclosing the amounts by which such distribution or change affects stated capital, capital surplus and earned surplus, or (2) if such amounts are not determinable at the time of such notice, disclosing the approximate effect of such distribution or change upon stated capital, capital surplus and earned surplus and stating that such amounts are not yet determinable.
(g) When issued shares are changed in any manner which affects stated capital, capital surplus or earned surplus, and no distribution to shareholders of certificates representing any shares resulting from such change is made, disclosure of the effect of such change upon the stated capital, capital surplus and earned surplus shall be made in the next financial statement covering the period in which such change is made that is furnished by the corporation to holders of shares of the class or series so changed, or if practicable, in the first notice of dividend or share distribution or change that is furnished to such shareholders between the date of the change of the shares and the next such financial statement, and in any event within six months of the date of such change.
512. REDEEMABLE SHARES
(a) A corporation may provide in its certificate of incorporation for one or more classes or series of shares which are redeemable, in whole or in part, at the option of the corporation or, except as provided in paragraph (b) of this section, at the option of the holder, at such price or prices, within such period or periods and under such conditions as are stated in the certificate of incorporation.
(b) A corporation shall not issue common shares which purport by their terms to grant to any holder thereof the right to compel the corporation to redeem such shares except that an open-end investment company, as defined in the United States "Investment Company Act of 1940", may, if its certificate of incorporation so provides and upon compliance with that act, issue shares which are redeemable at the option of the holder at a price approximately equal to the share's proportionate interest in the net assets of the corporation, and a shareholder may compel redemption of such shares in accordance with their terms.
(c) No redeemable common shares, other than such shares of an investment company or of a member corporation of a securities exchange registered under a statute of the United States such as the Securities Exchange Act of 1934 or of a corporation described in this paragraph, shall be issued or redeemed unless the corporation at the time has outstanding a class of common shares that is not subject to redemption. Any common shares of a corporation which directly or through a subsidiary has a license or franchise from a governmental agency to conduct its business, which license or franchise is conditioned upon some or all of the holders of such corporation's common shares possessing prescribed qualifications, may be made subject to redemption by the corporation to the extent necessary to prevent the loss of, or to reinstate, such license or franchise.
(d) Nothing in this section shall prevent a corporation from creating sinking funds for the redemption or purchase of its shares to the extent permitted by section 513 (Purchase or redemption by a corporation of its own shares).
513. PURCHASE OR REDEMPTION BY A CORPORATION OF ITS OWN SHARES
(a) A corporation, subject to any restrictions contained in its certificate of incorporation, may purchase its own shares, or redeem its redeemable shares, out of surplus except when currently the corporation is insolvent or would thereby be made insolvent.
(b) A corporation may purchase its own shares out of stated capital unless the corporation is insolvent or would thereby be made insolvent, if the purchase is made for the purpose of:
(1) Eliminating fractions of shares;
(2) Collecting or compromising indebtedness to the corporation; or
(3) Paying shareholders entitled to receive payment for their shares under section 623 (Procedure to enforce shareholder's right to receive payment for shares).
(c) A corporation, subject to any restrictions contained in its certificate of incorporation, may redeem or purchase its redeemable shares out of stated capital unless the corporation is insolvent or would thereby be made insolvent and unless such redemption or purchase would reduce net assets below the stated capital remaining after giving effect to the cancellation of such redeemable shares.
(d) When its redeemable shares are purchased by a corporation within the period of redeemability, the purchase price thereof shall not exceed the applicable redemption price stated in the certificate of incorporation. Upon a call for redemption, the amount payable by the corporation for shares having a cumulative preference on dividends may include the stated redemption price plus accrued dividends to the next dividend date following the date of redemption of such shares.
(e) No resident domestic corporation which is subject to the provisions of section nine hundred twelve of this Code shall purchase or agree to purchase more than ten percent of the stock of the resident domestic corporation from a shareholder for more than the market value thereof unless such purchase or agreement to purchase is approved by the affirmative vote of the board of directors followed by the affirmative vote of the holders of a majority of all outstanding shares entitled to vote thereon at a meeting of shareholders unless the certificate of incorporation requires a greater percentage of the outstanding shares to approve. The provisions of this paragraph (e) shall not apply when the resident domestic corporation offers to purchase shares from all holders of stock or for stock which the holder has been the beneficial owner of for more than two years. The terms"resident domestic corporation", "stock", "beneficial owner", and "market value" shall be as defined in section nine hundred twelve of this Code.
514. AGREEMENTS FOR PURCHASE BY A CORPORATION OF ITS OWN SHARES
(a) An agreement for the purchase by a corporation of its own shares shall be enforceable by the shareholder and the corporation to the extent such purchase is permitted at the time of purchase by section 513 (Purchase or redemption by a corporation of its own shares).
(b) The possibility that a corporation may not be able to purchase its shares under section 513 shall not be a ground for denying to either party specific performance of any agreement for the purchase by a corporation of its own shares, if at the time for performance the corporation can purchase all or part of such shares under section 513.
515. REACQUIRED SHARES
(a) Shares that have been issued and have been purchased, redeemed or otherwise reacquired by a corporation shall be canceled if they are reacquired out of stated capital, or if they are converted shares, or if the certificate of incorporation requires that such shares be canceled upon reacquisition.
(b) Any shares reacquired by the corporation and not required to be canceled may be either retained as treasury shares or canceled by the board at the time of reacquisition or at any time thereafter.
(c) Neither the retention of reacquired shares as treasury shares, nor their subsequent distribution to shareholders or disposition for a consideration shall change the stated capital. When treasury shares are disposed of for a consideration, the capital surplus shall be increased by the full amount of the consideration received unless the corporation exercises the option granted in subparagraph (a)(5) of section 517 (Special provisions relative to surplus and reserves).
(d) When reacquired shares other than converted shares are canceled, the stated capital of the corporation is thereby reduced by the amount of stated capital then represented by such shares plus any stated capital not theretofore allocated to any designated class or series which is thereupon allocated to the shares canceled The amount by which stated capital has been reduced by cancellation of reacquired shares during a stated period of time shall be disclosed in the next financial statement covering such period that is furnished by the corporation to all its shareholders or, if practicable, in the first notice of dividend or share distribution that is furnished to the holders of each class or series of its shares between the end of the period and the next such financial statement, and in any event to all its shareholders within six months of the date of the reduction of capital.
(e) Shares canceled under this section are restored to the status of authorized but unissued shares. However, if the certificate of incorporation prohibits the reissue of any shares required or permitted to be canceled under this section, the board by certificate of amendment under section 805 (Certificate of amendment; contents) shall reduce the number of authorized shares accordingly.
516. REDUCTION OF STATED CAPITAL IN CERTAIN CASES
(a) Except as otherwise provided in the certificate of incorporation, the board may at any time reduce the stated capital of a corporation by eliminating from stated capital amounts previously transferred by the board from surplus to stated capital and not allocated to any designated class or series of shares, or by eliminating any amount of stated capital represented by issued shares having a par value which exceeds the aggregate par value of such issued shares without par value. However, if the consideration for the issue of shares without par value was fixed by the shareholders under section 504 (Consideration and payment for shares), the board shall not reduce the stated capital represented by such shares except to the extent, if any, that the board was authorized by the shareholders to allocate any portion of such consideration to surplus.
(b) No reduction of stated capital shall be made under this section unless after such reduction the stated capital exceeds the aggregate preferential amounts payable upon involuntary liquidation upon all issued shares having preferential rights in the assets plus the par value of all other issued shares with par value.
(c) When a reduction of stated capital has been effected under this section, the amount of such reduction shall be disclosed in the next financial statement covering the period in which such reduction is made that is furnished by the corporation to all its shareholders or, if practicable, in the first notice of dividend or share of distribution that is furnished to the holders of each class or series of its shares between the date of such reduction and the next such financial statement, and in any event to all its shareholders within six months of the date of such reduction.
517. SPECIAL PROVISIONS RELATIVE TO SURPLUS AND RESERVES
(a) Whenever under this chapter it is necessary for a corporation to determine the amount or availability of its earned surplus, the following rules shall apply:
(1) The amount of the earned surplus of a corporation may be computed either from the date of formation or from the latest date when a deficit was eliminated as permitted in this section by an application of the corporation's capital surplus provided that:
(A) The board of any corporation formed before the effective date of this chapter may determine the amount of the corporation's earned surplus before the declaration of the first dividend after the effective date of this chapter, and such determination if made in good faith shall be conclusive; and
(B) After merger, consolidation or combination of two or more corporations by purchase or otherwise, the amount of the earned surplus of the surviving, consolidated or purchasing corporation shall not exceed the aggregate net earned surplus of the component corporations as it existed immediately prior to such merger, consolidation or combination, reduced by such distributions to shareholders and transfers of earned surplus to stated capital or capital surplus as were made in connection with the issue of shares or otherwise at the time of merger, consolidation or combination.
(2) All or part of the earned surplus of a corporation may be transferred by the board at any time to capital surplus or to stated capital.
(3) Any surplus resulting from reduction of stated capital shall be capital surplus.
(4) A corporation may apply any part or all of its capital surplus to the elimination of any deficit in the earned surplus account, upon approval by vote of the shareholders. The application of capital surplus to the elimination of a deficit in the earned surplus account shall be disclosed in the next financial statement covering the period in which such elimination is made that is furnished by the corporation to all its shareholders or, if practicable, in the first notice of dividend or share distribution that is furnished to holders of each class or series of its shares between the date of such elimination and the next such financial statement, and in any event to all its shareholders within six months of the date of such action.
(5) When a corporation has applied its earned surplus to the acquisition of treasury shares and such shares are subsequently disposed of for a consideration, the corporation may, at its option restore to earned surplus, out of the consideration received and on an appropriate basis per share, all or part of the amount by which earned surplus was reduced at the time of acquisition of such shares. If the consideration received exceeds the amount by which earned surplus was reduced with respect to such shares, the excess shall be capital surplus.
(b) Nothing in this section shall prevent a corporation from creating reserves from its earned surplus or capital surplus for any proper purpose or purposes, or from increasing, decreasing or abolishing any such reserve.
518. CORPORATE BONDS
(a) No corporation shall issue bonds except for money or other property, tangible or intangible, or labor or services actually received by or performed for the corporation or for its benefit or in the formation or reorganization, or a combination thereof. In the absence of fraud in the transaction, the judgment of the board as to the value of the consideration received shall be conclusive.
(b) If a distribution of its own bonds is made by a corporation to holders of any class or series of its outstanding shares, there shall be concurrently transferred to the liabilities of the corporation in respect of such bonds an amount of surplus equal to the principal amount of, and any accrued interest on, such bonds. The amount of the surplus so transferred shall be the consideration for the issue of such bonds.
(c) A corporation may, in its certificate of incorporation, confer upon the holders of any bonds issued or to be issued by the corporation, rights to inspect the corporate books and records and to vote in the election of directors and on any other matters on which shareholders of the corporation may vote.
519. CONVERTIBLE SHARES AND BONDS
(a) When so provided in the certificate of incorporation, and subject to the restrictions in paragraph (d), a corporation may issue shares convertible,
(1) at the option of the holder only, into shares of any class or into shares of any series of any class, except into a class of shares having rights or preferences as to dividends or distribution of assets upon liquidation which are prior or superior in rank to those of the shares being converted, and
(2) if a member corporation of a securities exchange registered under a statute of the United States such as the Security Exchange Act of 1934, at the option of the corporation or upon the happening of a specified event, into shares of any class or into shares of any series of any class or into any other security of the corporation. Authorized shares, whether issued or unissued, may be made so convertible within such period and upon such terms and conditions as are stated in the certificate of incorporation.
(b) Unless otherwise provided in the certificate of incorporation, and subject to the restrictions of paragraph (d), a corporation may issue its bonds convertible into other bonds or into shares of the corporation within such period and upon such terms and conditions as are fixed by the board.
(c) If there is shareholder approval for the issue of bonds or shares convertible into shares of the corporation, such approval may provide that the board is authorized by certificate of amendment under section 805 (Certificate of amendment; contents) to increase the authorized shares of any class or series to such number as will be sufficient, when added to the previously authorized but unissued shares of such class or series, to satisfy the conversion privileges of any such bonds or shares convertible into shares of such class or series.
(d) No issue of bonds or shares convertible into shares of the corporation shall be made unless:
(1) A sufficient number of authorized but unissued shares of the appropriate class or series are reserved by the board to be issued only in satisfaction of the conversion privileges of such convertible bonds or shares when issued; or
(2) The aggregate conversion privileges of such convertible bonds or shares when issued do not exceed the aggregate of any shares reserved under subparagraph (1) and any additional shares which may be authorized by the board under paragraph (c).
(e) No conversion of shares shall result in a reduction of stated capital. No privilege of conversion may be conferred upon, or altered in respect to, any shares or bonds that would result in the receipt by the corporation of less than the minimum consideration required to be received upon the issue of new shares. The consideration for shares issued upon the exercise of a conversion privilege shall be that provided in paragraph (9) of section 504 (Consideration and payment for shares).
(f) When shares have been converted, they shall be canceled and disclosure of the conversion of shares during a stated period of time and its effect; if any, upon stated capital shall be made in the next financial statement covering such period that is furnished by the corporation to all its shareholders or, if practicable, in the first notice of dividend or share distribution that is furnished to the holders of each class or series of its shares between the end of such period and the next such financial statement, and in any event to all its shareholders within six months of the date of the conversion of shares. When bonds have been converted, they shall be canceled and not reissued except upon compliance with the provisions governing the issue of convertible bonds.
520. LIABILITY FOR FAILURE TO DISCLOSE REQUIRED INFORMATION
Failure of the corporation to comply in good faith with the notice or disclosure provisions of paragraph (c) of section 510 (Dividends or other distributions in cash or property), or paragraphs (f) and (g) of section 511 (Share distributions and changes), or paragraphs (d) of section 515 (Reacquired shares), or paragraph (c) or section 516 (Reduction of stated capital in certain cases), or subparagraph (a)(4) of section 517 (Special provisions relative to surplus and reserves), or paragraph (f) of section 519 (Convertible shares and bonds), shall make the corporation liable for any damage sustained by any shareholder in consequence thereof.
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