Oneida Indian Nation (New York) Codes and Rules
Last amended: 2004
BUSINESS CORPORATION CODE - CHAPTERS 9-13
Go to Business Corporation Code - Chapters 1-5
Go to Business Corporation Code - Chapters 6-8
Table of Contents
Chapter 9 - Merger or Consolidation; Guarantee; Disposition of Assets
901. Power
of Merger or Consolidation
902. Plan of Merger or Consolidation
903. Authorization of Shareholders
904. Certificate of Merger or Consolidation; Contents
905. Merger of Subsidiary Corporation
906. Effect of Merger or Consolidation
907. Merger or Consolidation of Domestic and Foreign Corporations
908. Guarantee Authorized by Shareholders
909. Sale, Lease, Exchange or Other Disposition of Assets
910. Right of Shareholder to Receive Payment for Shares Upon Merger
or Consolidation, or Sale, Lease, Exchange or Other Disposition of Assets,
or Share Exchange
911. Mortgage or Pledge of, or Security Interest In, Corporate Property
912. Requirements Relating to Certain Business Combinations
913. Share Exchanges
Chapter 10 - Non - Judicial Dissolution
1001. Authorization
of Dissolution
1002. Dissolution Under Provision in Certificate of Incorporation
1003. Certificate of Dissolution; Contents
1004. Certificate of Dissolution; Filing
1005. Procedure After Dissolution
1006. Corporate Action and Survival of Remedies After Dissolution
1007. Notice to Creditors; Filing or Barring Claims
1008. Jurisdiction of Oneida Nation Court to Supervise Dissolution and
Liquidation
1009. Applicability to Dissolution Under Other Provisions
Chapter 11 - Judicial Dissolution
1101. Nation
Prosecutor's Action For Judicial Dissolution
1102. Directors' Petition for Judicial Dissolution
1103. Shareholders' Petition for Judicial Dissolution
1104. Petition in Case of Deadlock Amount Directors or Shareholders
1104-A. Petition for Judicial Dissolution Under Special Circumstances
1105. Contents of Petition for Judicial Dissolution
1106. Order to Show Cause; Issuance; Publication, Service, Filing
1107. Amending Papers
1108. Referee
1109. Hearing and Decision
1110. Application for Final Order
1111. Judgment or Final Order of Dissolution
1112. Preservation of Assets; Appointment of Receiver
1113. Certain Sales, Transfer, Security Interests and Judgments Void
1114. Injunction
1115. Discontinuance of Action or Special Proceeding
1116. Applicability of Other Provisions
1117. Purchase of Petitioner's Shares; Valuation
1201. Action
by Judgment Creditor for Sequestration
1202. Appointment of Receiver of Property of a Domestic or Foreign Corporation
1203. Temporary and Permanent Receiver
1204. Oath and Security
1205. Designation of Depositories by Court
1206. Powers of Permanent Receiver
1207. Duties of Receiver Upon Appointment
1208. Penalty for Concealing Property from Receiver
1209. Recovery of Assets
1210. Order of Payment by Receiver
1211. Final Distribution by Receiver
1212. Disposition of Moneys Retained; Surplus; Unclaimed Distributions
1213. Omissions or Default of Receiver
1214. Application by Nation Prosecutor for Removal of Receiver and to
Close Receivership
1215. Resignation by Receiver; Filling any Vacancy
1216. Final Accounting; Notice; Duty of Nation Prosecutor
1217. Commissions
1218. Special Provisions Relating to Actions or Special Proceedings
Against Foreign Corporations
Chapter 13 - Foreign Corporations
1301. Authorization
of Foreign Corporations
1302. Application to Existing Authorized Foreign Corporations
1303. Violations
1304. Application for Authority; Contents
1305. Application for Authority; Effect
1306. Powers of Authorized Foreign Corporations
1307. Tenure of Real Property
1308. Amendments or Changes
1309. Certificate of Amendment; Contents, Effect
1309-A. Certificate of Change; Contents
1310. Surrender of Authority
1311. Termination of Existence
1312. Actions or Special Proceedings by Unauthorized Foreign Corporations
1313. Actions or Special Proceeding by Foreign Corporations
1314. Actions or Special Proceedings Against Foreign Corporations
1315. Record of Shareholders
1316. Voting Trust Records
1317. Liabilities of Directors and Officers of Foreign Corporations
1318. Liability of Foreign Corporations for Failure to Disclose Required
Information
1319. Applicability of Other Provisions
1320. Exemption from Certain Provisions
CHAPTER 9 - MERGER OR CONSOLIDATION; GUARANTEE; DISPOSITION OF ASSETS
901. POWER OF MERGER OR CONSOLIDATION
(a) Two or more domestic corporations may, as provided in this chapter:
(1) Merge into a single corporation which shall be one of the constituent corporations; or
(2) Consolidate into a single corporation which shall be a new corporation to be formed pursuant to the consolidation.
(b) Whenever used in this chapter:
(1) "Merger" means a procedure of the character described in subparagraph (a)(1).
(2) "Consolidation" means an procedure of the character described in subparagraph (a)(2).
(3) "Constituent corporation" means an existing corporation that is participating in the merger or consolidation with one or more other corporations.
(4) "Surviving corporation" means the constituent corporation into which one or more other constituent corporations are merged.
(5) "Consolidated corporation'' means the new corporation into which two or more constituent corporations are consolidated.
902. PLAN OF MERGER OR CONSOLIDATION
(a) The board of each corporation proposing to participate in a merger or consolidation under section 901 (Power of merger or consolidation) shall adopt a plan of merger or consolidation, setting forth:
(1) The name of each constituent corporation and, if the name of any of them has been changed, the name under which is was formed; and the name of the surviving corporation, or the name, or the method of determining it, of the consolidate corporation.
(2) As to each constituent corporation, the designation and number of outstanding shares of each class and series, specifying the classes and series entitled to vote and further specifying each class and series, if any, entitled to vote as a class; and, if the number of any such shares is subject to change prior to the effective date of the merger or consolidation, the manner in which such change may occur.
(3) The terms and conditions of the proposed merger or consolidation, including the manner and basis of converting the shares of each constituent corporation into shares, bonds or other securities of the surviving or consolidated corporation, or the cash or other consideration to be paid or delivered in exchange for shares of each constituent corporation, or a combination thereof
(4) In case of merger, a statement of any amendments or changes in the certificate of incorporation of the surviving corporation to be effected by such merger; in case of consolidation, all statements required to be included in a certificate of incorporation for a corporation formed under this chapter, except statements as to facts not available at the time the plan of consolidation is adopted by the board.
(5) Such other provisions with respect to the proposed merger or consolidation as the board considers necessary or desirable.
903. AUTHORIZATION BY SHAREHOLDERS
(a) The board of each constituent corporation, upon adopting such plan of merger or consolidation, shall submit such plan to a vote of shareholders in accordance with the following:
(1) Notice of meeting shall be given to each shareholder of record, as of the record date fixed pursuant to section 604 (Fixing record date), whether or not entitled to vote. A copy of the plan of merger or consolidation or an outline of the material features of the plan shall accompany such notice.
(2) The plan of merger or consolidation shall be adopted at a meeting of shareholders by vote of the holders of two-thirds of all outstanding shares entitled to vote thereon. Notwithstanding any provision in the certificate of incorporation, the holders of shares of a class or series shall be entitled to vote and to vote as a class if the plan of merger or consolidation contains any provision which, if contained in an amendment to the certificate of incorporation, would entitle the holders of shares of such class or series to vote and to vote as a class thereon. In such case, in addition to the authorization of the merger or consolidation by vote of the holders of two-thirds of all outstanding shares entitled to vote thereon, the merger or consolidation shall be authorized by vote of the holders of a majority of all outstanding shares of each such class or series.
(b) Notwithstanding shareholder authorization and at any time prior to the filing of the certificate of merger or consolidation, the plan of merger or consolidation may be abandoned pursuant to a provision for such abandonment, if any, contained in the plan of merger or consolidation.
904. CERTIFICATE OF MERGER OR CONSOLIDATION; CONTENTS
(a) After adoption of the plan of merger or consolidation by the board and shareholders of each constituent corporation, unless the merger or consolidation is abandoned in accordance with paragraph (b) of section 903 (Authorization by shareholders), a certificate of merger or consolidation, entitled "Certificate of merger (or consolidation) of .......... and .......... into ....... (names of corporations) under section 904 of the Business Corporation Code", shall be signed and verified on behalf of each constituent corporation and delivered to the Nation Clerk. It shall set forth:
(1) The statements required by subparagraphs (a)(l), (2) and (4) of section 902 (Plan of merger or consolidation).
(2) The effective date of the merger or consolidation if other than the date of filing of the certificate of merger or consolidation by the Nation Clerk.
(3) In the case of consolidation, any statement required to be included in a certificate of incorporation for a corporation formed under this chapter but which was omitted under subparagraph (a)(4) of section 902.
(4) The date when the certificate of incorporation of each constituent corporation was filed by the Nation Clerk.
(5) The manner in which the merger or consolidation was authorized with respect to each constituent corporation.
905. MERGER OF PARENT AND SUBSIDIARY CORPORATION
(a) Any domestic corporation owning at least ninety percent of the outstanding shares of each class of another domestic corporation or corporations may either merge such other corporation or corporations into itself without the authorization of the shareholders of any such corporation or merge itself and one or more of such other corporations into one of such other corporations with the authorization of the parent corporation's shareholders in accordance with paragraph (a) of section 903 (Authorization by shareholders). In either case the board of such parent corporation shall adopt a plan of merger, setting forth:
(1) The name of each corporation to be merged and the name of the surviving corporation, and if the name of any of them has been changed, the name under which it was formed.
(2) The designation and number of outstanding shares of each class of each corporation to be merged and the number of such shares of each class, if any, owned by the surviving corporation; and if the number of any such shares is subject to change prior to the effective date of the merger, the manner in which such change may occur.
(3) The terms and conditions of the proposed merger, including the manner and basis of converting the shares of each subsidiary corporation to be merged not owned by the parent corporation into shares, bonds or other securities of the surviving corporation, or the cash or other consideration to be paid or delivered in exchange for shares of each such subsidiary corporation, or a combination thereof
(4) If the parent corporation is not the surviving corporation, provision for the pro rata issuance of shares of the surviving corporation to the shareholders of the parent corporation on surrender of any certificates therefore.
(5) If the parent corporation is not the surviving corporation, a statement of any amendments or changes in the certificate of incorporation of the surviving corporation to be effected by the merger.
(6) Such other provisions with respect to the proposes merger as the board considers necessary or desirable.
(b) If the surviving corporation is the parent corporation, a copy of such plan of merger or an outline of the material features thereof shall be given, personally or by mail, to all holders of shares of each subsidiary corporation to be merged not owned by the parent corporation, unless the giving of such copy or outline has been waived by such holders.
(c) A certificate of merger, entitled "Certificate of merger of .......... into .......... (names of corporations) under section 905 of the Business Corporation Code", shall be signed, verified and delivered to the Nation Clerk by the surviving corporation. If the surviving corporation is the parent corporation and such corporation does not own all shares of each subsidiary corporation to be merged, such certificate shall be delivered not less than thirty days after the giving of a copy or outline of the material features of the plan of merger to shareholders of each such subsidiary corporation, or at any time after the waiving thereof by the holders of all of the outstanding shares of each such subsidiary corporation not owned by the surviving corporation. The certificate shall set forth:
(1) The statements required by subparagraphs (a)(1), (2), (4) and (5) of this section.
(2) The effective date of the merger if other than the date of filing of the certificate of merger by the Nation Clerk.
(3) The date when the certificate of incorporation of each constituent corporation was filed by the Nation Clerk.
(4) A statement that the plan of merger was adopted by the board of directors of the parent corporation.
(5) If the surviving corporation is the parent corporation and such corporation does not own all the shares of each subsidiary corporation to be merged, either the date of the giving to holders of shares of each subsidiary corporation not owned by the surviving corporation of a copy of the plan of merger or an outline of the material features thereof, or a statement that the giving of such copy or outline has been waived, if such is the case.
(6) If the parent corporation is not the surviving corporation, a statement that the proposed merger has been approved by the shareholders of the parent corporation in accordance with paragraph (a) of section 903 (Authorization by shareholders).
(d) The surviving corporation shall thereafter cause a copy of such certificate, to be filed in the office of the Nation Clerk
(e) Paragraph (b) of section 903 (Authorization by shareholders) shall apply to a merger under this section.
(f) The right of merger granted by this section to certain corporations shall not preclude the exercise by such corporations of any other right of merger or consolidation under this chapter.
906. EFFECT OF MERGER OR CONSOLIDATION
(a) Upon the filing of the certificate of merger or consolidation by the Nation Clerk or on such date subsequent thereto, not to exceed thirty days, as shall be set forth in such certificate, the merger or consolidation shall be effected.
(b) When such merger or consolidation has been effected:
(1) Such surviving or consolidated corporation shall thereafter, consistently with its certificate of incorporation as altered or established by the merger or consolidation, possess all the rights, privileges, immunities, powers and purposes of each of the constituent corporations.
(2) All the property, real and personal, including subscriptions to shares, causes of action and every other asset of each of the constituent corporations, shall vest in such surviving or consolidated corporation without further act or deed.
(3) The surviving or consolidated corporation shall assume and be liable for all the liabilities, obligations and penalties of each of the constituent corporations. No liability or obligation due or to become due, claim or demand for any cause existing against any such corporation, or any shareholder, officer or director thereof, shall be released or impaired by such merger or consolidation. No action or proceeding, whether civil or criminal, then pending by or against any such constituent corporation, or any shareholder, officer or director thereof, shall abate or be discontinued by such merger or consolidation, but may be enforced, prosecuted, settled or compromised as if such merger or consolidation had not occurred, or such surviving or consolidated, corporation may be substituted in such action or special proceeding in place of any constituent corporation.
(4) In the case of a merger, the certificate of incorporation of the surviving corporation shall be automatically amended to the extent, if any, that changes in its certificate of incorporation are set forth in the plan of merger; and, in the case of a consolidation, the statements set forth in the certificate of consolidation and which are required or permitted to be set forth in a certificate of incorporation of a corporation formed under this chapter shall be its certificate of incorporation.
907. MERGER OR CONSOLIDATION OF DOMESTIC AND FOREIGN CORPORATIONS
(a) One or more foreign corporations and one or more domestic corporations may be merged or consolidated into a corporation, if such merger or consolidation is permitted by the laws of the jurisdiction under which each such foreign corporation is incorporated. With respect to such merger or consolidation, any reference in paragraph (b) of section 901 (Power of merger or consolidation) to a corporation shall, unless the context otherwise requires, include both domestic and foreign corporations.
(b) With respect to procedure, including the requirement of shareholder authorization, each domestic corporation shall comply with the provisions of this chapter relating to merger or consolidation of domestic corporations, and each foreign corporation shall comply with the applicable provisions of the law of the jurisdiction under which it is incorporated.
(c) The procedure for the merger of a subsidiary corporation or corporations under section 905 (Merger of parent and subsidiary corporations) shall be available where either a subsidiary corporation or the corporation owning at least ninety percent of the outstanding shares of each class of a subsidiary is a foreign corporation, and such merger is permitted by the laws of the jurisdiction under which such foreign corporation is incorporated.
(d) If the surviving or consolidated corporation is, or is to be, a domestic corporation, a certificate of merger or consolidation shall be signed, verified and delivered to the Nation Clerk as provided in section 904 (Certificate of merger or consolidation; contents) or 905 (Merger of parent and subsidiary corporations), as the case may be. In addition to the matters specified in such sections, the certificate shall set forth as to each constituent foreign corporation the jurisdiction and date of its incorporation and the date when its application for authority to do business within the territorial jurisdiction of the Nation was filed by the Nation Clerk, and its fictitious name used in this Nation pursuant to chapter thirteen of this chapter, if applicable, or, if no such application has been filed, a statement to such effect.
(e) If the surviving or consolidated corporation is, or is to be, formed under the law of any jurisdiction other than the Nation:
(1) It shall comply with the provisions of this chapter relating to foreign corporations if it is to do business within the territorial jurisdiction of the Nation.
(2) It shall deliver to the Nation Clerk a certificate, entitled "Certificate of merger (or consolidation) of .......... and .......... into .......... (names of corporations) under section 907 of the Business Corporation Code", which shall be signed and verified on behalf of each constituent domestic and foreign corporation. It shall set forth:
(A) If the procedure for the merger or consolidation of a constituent domestic corporation was effected in compliance with sections 902 (Plan of merger or consolidation) and 903 (Authorization by shareholders), the following:
(i) The statements required by subparagraphs (a)(1) and (2) of section 902.
(ii) The effective date of the merger or consolidation if other than the date of filing of the certificate of merger or consolidation by the Nation Clerk.
(iii) The manner in which the merger or consolidation was authorized with respect to each constituent domestic corporation and that the merger or consolidation is permitted by the laws of the jurisdiction of each constituent foreign corporation and is in compliance therewith.
(B) If the procedure for the merger of a subsidiary corporation was effected in compliance with section 905, the following:
(i) The statements required by subparagraphs (a)(1), (2), (4) and (5) of section 905.
(ii) The effective date of the merger if other than the date of filing of the certificate of merger by the Nation Clerk.
(iii) If the surviving foreign corporation does not own all the shares of a subsidiary domestic corporation being merged, either the date of the giving to holders of shares of each subsidiary domestic corporation not owned by the surviving foreign corporation of a copy of the plan of merger or an outline of the material features thereof, or a statement that the giving of such copy or outline has been waived, if such is the case.
(iv) That the merger is permitted by the laws of the jurisdiction of each constituent foreign corporation and is in compliance therewith.
(v) If the parent domestic corporation is not the surviving corporation, a statement that the proposed merger has been approved by the shareholders of the parent domestic corporation in accordance with paragraph (a) of section 903 (Authorization by shareholders).
(C) The jurisdiction and date of incorporation of the surviving or consolidated foreign corporation, the date when its application for authority to do business within the territorial jurisdiction of the Nation was filed by the Nation Clerk, and its fictitious name used within the territorial jurisdiction of the Nation pursuant to chapter thirteen of this chapter, if applicable, or, if no such application has been filed, a statement to such effect and that it is not to do business within the territorial jurisdiction of the Nation until an application for such authority shall have been filed by such department.
(D) The date when the certificate of incorporation of each constituent domestic corporation was filed by the Nation Clerk and the jurisdiction and date of incorporation of each constituent foreign corporation, other than the surviving or consolidated foreign corporation, and, in the case of each such corporation authorized to do business within the territorial jurisdiction of the Nation, the date when its application for authority was filed by the secretary of state.
(E) An agreement that the surviving or consolidated foreign corporation may be served with process within the territorial jurisdiction of the Nation in any action or special proceeding for the enforcement of any liability or obligation of any domestic corporation or of any foreign corporation, previously amenable to suit within the territorial jurisdiction of the Nation, which is a constituent corporation in such merger or consolidation, and for the enforcement, as provided in this chapter, of the right of shareholders of any constituent domestic corporation to receive payment for their shares against the surviving or consolidated corporation.
(F) An agreement that, subject to the provisions of section 623 (Procedure to enforce shareholder's right to receive payment for shares), the surviving or consolidated foreign corporation will promptly pay to the shareholders of each constituent domestic corporation the amount, if any, to which they shall be entitled under the provisions of this chapter relating to the right of shareholders to receive payment for their shares.
(G) A designation of the Nation Clerk as its agent upon whom process against it may be served in the manner set forth in paragraph (b) of section 306 (Service of process), in any action or special proceeding, and a post office address, to which the Nation Clerk shall mail a copy of any process against it served upon him. Such post office address shall supersede any prior address designated as the address to which process shall be mailed.
(f) Upon the filing of the certificate of merger or consolidation by the Nation Clerk or on such date subsequent thereto, not to exceed ninety days, as shall be set forth in such certificate, the merger or consolidation shall be effected.
(g) The surviving or consolidated domestic or foreign corporation shall thereafter cause a copy of such certificate, to be filed in the office of the Nation Clerk
(h) If the surviving or consolidated corporation is, or is to be, formed under the law of the Nation, the effect of such merger or consolidation shall be the same as in the case of the merger or consolidation of domestic corporations under section 906 (Effect of merger or consolidation). If the surviving or consolidated corporation is, or is to be, incorporated under the law of any jurisdiction other than the Nation, the effect of such merger or consolidation shall be the same as in the case of the merger or consolidation of domestic corporations, except in so far as the law of such other jurisdiction provides otherwise.
908. GUARANTEE AUTHORIZED BY SHAREHOLDERS
A guarantee may be given by a corporation, although not in furtherance of its corporate purposes, when authorized at a meeting of shareholders by vote of the holders of two-thirds of all outstanding shares entitled to vote thereon. If authorized by a like vote, such guarantee may be secured by a mortgage or pledge of, or the creation of a security interest in, all or any part of the corporate property, or any interest therein, wherever situated.
909. SALE, LEASE, EXCHANGE OR OTHER DISPOSITION OF ASSETS
(a) A sale, lease, exchange or other disposition of all or substantially all the assets of a corporation, if not made in the usual or regular course of the business actually conducted by such corporation, shall be authorized only in accordance with the following procedure:
(1) The board shall authorize the proposed sale, lease, exchange or other disposition and direct its submission to a vote of shareholders.
(2) Notice of meeting shall be given to each shareholder of record, whether or not entitled to vote.
(3) The shareholders shall approve such sale, lease, exchange or other disposition and may fix, or may authorize the board to fix, any of the terms and conditions thereof and the consideration to be received by the corporation therefore, which may consist in whole or in part of cash or other property, real or personal, including shares, bonds or other securities of any other domestic or foreign corporation or corporations, by vote at a meeting of shareholders of the holders of two-thirds of all outstanding shares entitled to vote thereon.
(b) A recital in a deed, lease or other instrument of conveyance executed by a corporation to the effect that the property described therein does not constitute all or substantially all of the assets of the corporation, or that the disposition of the property affected by said instrument was made in the usual or regular course of business of the corporation, or that the shareholders have duly authorized such disposition, shall be presumptive evidence of the fact so recited.
(c) An action to set aside a deed, lease or other instrument of conveyance executed by a corporation affecting real property or real and personal property may not be maintained for failure to comply with the requirements of paragraph (a) unless the action is commenced and a notice of pendency of action is filed within one year after such conveyance, lease or other instrument is recorded.
(d) Whenever a transaction of the character described in paragraph (a) involves a sale, lease, exchange or other disposition of all or substantially all the assets of the corporation, including its name, to a new corporation formed under the same name as the existing corporation, upon the expiration of thirty days from the filing of the certificate of incorporation of the new corporation, the existing corporation shall be automatically dissolved, unless, before the end of such thirty-day period, such corporation has changed its name. The adjustment and winding up of the affairs of such dissolved corporation shall proceed in accordance with the provisions of chapter 10 (Non-judicial dissolution).
(e) The certificate of incorporation of a corporation formed under the authority of paragraph (d) shall set forth the name of the existing corporation, the date when its certificate of incorporation was filed by the Nation Clerk, and that the shareholders of such corporation have authorized the sale, lease, exchange or other disposition of all or substantially all the assets of such corporation, including its name, to the new corporation to be formed under the same name as the existing corporation.
(f) Notwithstanding shareholder approval, the board may abandon the proposed sale, lease, exchange or other disposition without further action by the shareholders, subject to the rights, if any, of third parties under any contract relating thereto.
910. RIGHT OF SHAREHOLDER TO RECEIVE PAYMENT FOR SHARES UPON MERGER
OR CONSOLIDATION, OR SALE, LEASE, EXCHANGE OR OTHER DISPOSITION OF ASSETS,
OR SHARE EXCHANGE
(a) A shareholder of a domestic corporation shall, subject to and by complying with section 623 (Procedure to enforce shareholder's right to receive payment for shares), have the right to receive payment of the fair value of his shares and the other rights and benefits provided by such section, in the following cases:
(1) Any shareholder entitled to vote who does not assent to the taking of an action specified in subparagraphs (A), (B) and (C).
(A) Any plan of merger or consolidation to which the corporation is a party; except that the right to receive payment of the fair value of his shares shall not be available:
(i) To a shareholder of the parent corporation in a merger authorized by section 905 (Merger of parent and subsidiary corporations), or paragraph (c) of section 907 (Merger or consolidation of domestic and foreign corporations); and
(ii) To a shareholder of the surviving corporation in a merger authorized by this chapter, other than a merger specified in subparagraph (i), unless such merger effects one or more of the changes specified in subparagraph (b)(6) of section 806 (Provisions as to certain proceedings) in the rights of the shares held by such shareholder.
(B) Any sale, lease, exchange or other disposition of all or substantially all of the assets of a corporation which requires shareholder approval under section 909 (Sale, lease, exchange or other disposition of assets) other than a transaction wholly for cash where the shareholders' approval thereof is conditioned upon the dissolution of the corporation and the distribution of substantially all of its net assets to the shareholders in accordance with their respective interests within one year after the date of such transaction.
(C) Any share exchange authorized by section 913 in which the corporation is participating as a subject corporation; except that the right to receive payment of the fair value of his shares shall not be available to a shareholder whose shares have not been acquired in the exchange.
(2) Any shareholder of the subsidiary corporation in a merger authorized by section 905 or paragraph (c) of section 907, or in a share exchange authorized by paragraph (9) of section 913, who files with the corporation a written notice of election to dissent as provided in paragraph (c) of section 623.
911. MORTGAGE OR PLEDGE OF, OR SECURITY INTEREST IN, CORPORATE PROPERTY
The board may authorize any mortgage or pledge of, or the creation of a security interest in, all or any part of the corporate property, or any interest therein, wherever situated. Unless the certificate of incorporation provides otherwise, no vote or consent of shareholders shall be required to approve such action by the board.
912. REQUIREMENTS RELATING TO CERTAIN BUSINESS COMBINATIONS
(a) For the purpose of this section:
(1) "Affiliate" means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, a specified person.
(2) "Announcement date", when used in reference to any business combination, means the date of the first public announcement of the final, definitive proposal for such business combination.
(3) "Associate", when used to indicate a relationship with any person means (A) any corporation or organization of which such person is an officer or partner or is, directly or indirectly, the beneficial owner of ten percent or more of any class of voting stock, (B) any trust or other estate in which such person has a substantial beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity, and (C) any relative or spouse of such person, or any relative of such spouse, who has the same home as such person.
(4) "Beneficial owner", when used with respect to any stock, means a person:
(A) that, individually or with or through any of its affiliates or associates, beneficially owns such stock, directly or indirectly; or
(B) that, individually or with or through any of its affiliates or associates, has (i) the right to acquire such stock (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding (whether or not in writing), or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that a person shall not be deemed the beneficial owner of stock tendered pursuant to a tender or exchange offer made by such person or any of such person's affiliates or associates until such tendered stock is accepted for purchase or exchange; or (ii) the right to vote such stock pursuant to any agreement, arrangement or understand (whether or not in writing); provided, however, that a person shall not be deemed the beneficial owner of any stock under this item if the agreement, arrangement or understanding vote such stock (X) arises solely from a revocable proxy in accordance with the applicable rules an regulations under the United States Exchange Act and (Y) is not then reportable on Schedule 13D under the United States Exchange Act (or any comparable or successor report); or
(C) that has any agreement, arrangement or understanding (whether or not in writing), for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in item (ii) of clause (B) of the subparagraph), or disposing of such stock with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, such stock.
(5) "Business combination", when used in reference to any resident domestic corporation and any interested shareholder of such resident domestic corporation, means:
(A) any merger or consolidation of such resident domestic corporation or any subsidiary of such resident domestic corporation with (i) such interested shareholder or (ii) any other corporation (whether or not itself an interested shareholder of such resident domestic corporation) which is, or after such merger or consolidation would be, an affiliate or associate of such interested shareholder;
(B) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions) to or with such interested shareholder or any affiliate or associate of such interested shareholder of assets of such resident domestic corporation or any subsidiary of such resident domestic corporation (i) having an aggregate market value equal to ten percent or more of the aggregate market value of all the assets, determined on a consolidated basis, of such resident domestic corporation, (ii) having an aggregate market value equal to ten percent or more of the aggregate market value of all the outstanding stock of such resident domestic corporation, or (iii) representing ten percent or more of the earning power or net income, determined on a consolidated basis, of such resident domestic corporation;
(C) the issuance or transfer by such resident domestic corporation or any subsidiary of such resident domestic corporation (in one transaction or a series of transactions) of any stock of such resident domestic corporation or any subsidiary of such resident domestic corporation which has an aggregate market value equal to five percent or more of the aggregate market value of all the outstanding stock of such resident domestic corporation to such interested shareholder or any affiliate or associate of such interested shareholder except pursuant to the exercise of warrants or rights to purchase stock offered, or a dividend or distribution paid or made, pro rata to all shareholders of such resident domestic corporation;
(D) the adoption of any plan or proposal for the liquidation or dissolution of such resident domestic corporation proposed by, or pursuant to any agreement, arrangement or understanding (whether or not in writing) with, such interested shareholder or any affiliate or associate of such interested shareholder;
(E) any reclassification of securities (including, without limitation, any stock split, stock dividend, or other distribution of stock in respect of stock, or any reverse stock split), or recapitalization of such resident domestic corporation, or any merger or consolidation of such resident domestic corporation with any subsidiary of such resident domestic corporation, or any other transaction (whether or not with or into or otherwise involving such interested shareholder), proposed by, or pursuant to any agreement, arrangement or understanding (whether or not in writing) with, such interested shareholder or any affiliate or associate of such interested shareholder, which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class or series of voting stock or securities convertible into voting stock of such resident domestic corporation or any subsidiary of such resident domestic corporation which is directly or indirectly owned by such interested shareholder or any affiliate or associate of such interested shareholder, except as a result of immaterial changes due to fractional share adjustments; or
(F) any receipt by such interested shareholder or any affiliate or associate of such interested shareholder of the benefit, directly or indirectly (except proportionately as a shareholder of such resident domestic corporation) of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided by or through such resident domestic corporation.
(6) "Common stock'' means any stock other than preferred stock.
(7) "Consummation date", with respect to any business combination, means the date of consummation of such business combination, or, in the case of a business combination as to which a shareholder vote is taken, the later of the business day prior to the vote or twenty days prior to the date of consummation of such business combination.
(8) "Control", including the terms"controlling", "controlled by" and "under common control with", means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting stock, by contract, or otherwise. A person's beneficial ownership of ten percent or more of a corporation's outstanding voting stock shall create a presumption that such person has control of such corporation. Notwithstanding the foregoing, a person shall not be deemed to have control of a corporation if such person holds voting stock, in good faith and not for the purpose of circumventing this section, as an agent, bank, broker, nominee, custodian or trustee for one or more beneficial owners who do not individually or as a group have control of such corporation.
(9) "Exchange Act" means the United States law known as the Securities Exchange Act of 1934, as the same has been or hereafter may be amended from time to time.
(10) "Interested shareholder", when used in reference to any resident domestic corporation, means any person (other than such resident domestic corporation or any subsidiary of such resident domestic corporation) that
(A)
(i) is the beneficial owner, directly or indirectly, of twenty percent or more of the outstanding voting stock of such resident domestic corporation; or
(ii) is an affiliate or associate of such resident domestic corporation and at any time within the five-year period immediately prior to the date in question was the beneficial owner, directly or indirectly, of twenty percent or more of the then outstanding voting stock of such resident domestic corporation; provided that
(B) for the purpose of determining whether a person is an interested shareholder, the number of shares of voting stock of such resident domestic corporation deemed to be outstanding shall include shares deemed to be beneficially owned by the person through application of subparagraph four of the paragraph but shall not include any other unissued shares of voting stock of such resident domestic corporation which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.
(11) "Market value", when used in reference to stock or property of any resident domestic corporation, means:
(A) in the case of stock, the highest closing sale price during the thirty-day period immediately preceding the date in question of a share of such stock on the composite tape for New York stock exchange-listed stocks, or, if such stock is not quoted on such composite tape or if such stock is not listed on such exchange, on the principal United States securities exchange registered under the Exchange Act on which such stock is listed, or, if such stock is not listed on any such exchange, the highest closing bid quotation with respect to a share of such stock during the thirty-day period preceding the date in question on the National Association of Securities Dealers, Inc. Automated Quotations System or any system then in use, or if no such quotations are available, the fair market value on the date in question of a share of such stock as determined by the board of directors of such resident domestic corporation in good faith; and
(B) in the case of property other than cash or stock, the fair market value of such property on the date in question as determined by the board of directors of such resident domestic corporation in good faith.
(12) "Preferred stock" means any class or series of stock of a resident domestic corporation which under the by-laws or certificate of incorporation of such resident domestic corporation is entitled to receive payment of dividends prior to any payment of dividends on some other class or series of stock, or is entitled in the event of any voluntary liquidation, dissolution or winding up of the resident domestic corporation to receive payment or distribution of a preferential amount before any payments or distributions are received by some other class or series of stock.
(13) "Resident domestic corporation" means an issuer of voting stock which:
(A) is organized under the laws of the Nation;
(B) either (i) has its principal executive offices and significant business operations located within the territorial jurisdiction of the Nation; and
(C) has at least ten percent of its voting stock owned beneficially by persons residing within the territorial jurisdiction of the Nation. For purposes of this section, the residence of a partnership, unincorporated association, trust or similar organization shall be the principal office of such organization.
No resident domestic Corporation, which is organized under the laws of the Nation, shall cease to be a resident domestic corporation by reason of events occurring or actions taken while such resident domestic corporation is subject to the provisions of this section.
(14) "Stock" means:
(A) any stock or similar security, any certificate of interest, any participation in any profit sharing agreement, any voting trust certificate, or any certificate of deposit for stock; and
(B) any security convertible, with or without consideration, into stock, or any warrant, call or other option or privilege of buying stock without being bound to do so, or any other security carrying any right to acquire, subscribe to or purchase stock.
(15) "Stock acquisition date", with respect to any person and any resident domestic corporation, means the date that such person first becomes an interested shareholder of such resident domestic corporation.
(16) "Subsidiary" of any person means any other corporation of which a majority of the voting stock is owned, directly or indirectly, by such person.
(17) "Voting stock" means shares of capital stock of a corporation entitled to vote generally in the election of directors.
(b) Notwithstanding anything to the contrary contained in the chapter (except the provisions of paragraph (d) of this section), no resident domestic corporation shall engage in any business combination with any interested shareholder of such resident domestic corporation for a period of five years following such interested shareholder's stock acquisition date unless such business combination or the purchase of stock made by such interested shareholder on such interested shareholder's stock acquisition date is approved by the board of directors of such resident domestic corporation prior to such interested shareholder's stock acquisition date. If a good faith proposal is made in writing to the board of directors of such resident domestic corporation regarding a business combination, the board of directors shall respond, in writing, within thirty days or such shorter period, if any, as may be required by the United States Exchange Act, setting forth its reasons for its decision regarding such proposal. If a good faith proposal to purchase stock is made in writing to the board of directors of such resident domestic Corporation, the board of directors, unless it responds affirmatively in writing thirty days or such shorter period, if any, as may be required by the United States Exchange Act, shall be deemed to have disapproved such stock purchase.
(c) Notwithstanding anything to the contrary contained in the chapter (except the provisions of paragraphs (b) and (d) of this section), no resident domestic corporation shall engage at any time in any business combination with any interested shareholder of such resident domestic corporation other than a business combination specified in any one of subparagraph (l), (2) or (3):
(1) A business combination approved by the board of directors of such resident domestic corporation prior to such interested shareholder's stock acquisition date, or where the purchase of stock made by such interested shareholder on such interested shareholder's stock acquisition date had been approved by the board of directors of such resident domestic corporation prior to such interested shareholder's stock acquisition date.
(2) A business combination approved by the affirmative vote of the holders of a majority of the outstanding voting stock not beneficially owned by such interested shareholder or any affiliate or associate of such interested shareholder at a meeting called for such purpose no earlier than five years after such interested shareholder's stock acquisition date.
(3) A business combination that meets all of the following conditions:
(A) The aggregate amount of the cash and the market value as of the consummation date of consideration other than cash to be received per share by holders of outstanding shares of common stock of such resident domestic corporation in such business combination is at least equal to the higher of the following:
(i) the highest per share price paid by such interested shareholder at a time when he was the beneficial owner, directly or indirectly, of five percent or more of the outstanding voting stock of such resident domestic corporation, for any shares of common stock of the same class or series acquired by it (X) within the five-year period immediately prior to the announcement date with respect to such business combination, or (Y) within the five-year period immediately prior to, or in, the transaction in which such interested shareholder became an interested shareholder, whichever is higher; plus, in either case, interest compounded annually from the earlier date on which such highest per share acquisition price was paid through the consummation date at the rate for one-year United States treasury obligations from time to time in effect; less the aggregate amount of any cash dividends paid, and the market value of any dividends paid other than in cash, per share of common stock since such earliest date, up to the amount of such interest; and
(ii) the market value per share of common stock on the announcement date with respect to such business combination or on such interested shareholder’s stock acquisition date, whichever is higher; plus interest compounded annually from such date through the consummation date at the rate for one-year United states treasury obligations from time to time in effect; less the aggregate amount of any cash dividends paid, and the market value of any dividends paid other than in cash, per share of common stock since such date, up to the amount of such interest.
(B) The aggregate amount of the cash and the market value as of the consummation date of consideration other than cash to be received per share by holders of outstanding shares of any class or series of stock, other than common stock, of such resident domestic corporation is at least equal to the highest of the following (whether or not such interested shareholder has previously acquired any shares of such class or series of stock):
(i) the highest per share price paid by such interested shareholder at a time when he was the beneficial owner, directly or indirectly, of five percent or more of the outstanding voting stock of such resident domestic corporation, for any shares of such class or series of stock acquired by it (X) within the five-year period immediately prior to the announcement date with respect to such business combination, or (Y) within the five-year period immediately prior to, or in, the transaction in which such interested shareholder became an interested shareholder, whichever is higher; plus, in either case, interest compounded annually from the earliest date on which such highest per share acquisition price was paid through the consummation date at the rate for one-year United States treasury obligations from time to time in effect; less the aggregate amount of any cash dividends paid, and the market value of any dividends paid other than in cash, per share of such class or series of stock since such earliest date, up to the amount of such interest;
(ii) the highest preferential amount per share to which the holders of shares of such class or series of stock are entitled in the event of any voluntary liquidation, dissolution or winding up of such resident domestic corporation, plus the aggregate amount of any dividends declared or due as to which such holders are entitled prior to payment of dividends on some other class or series of stock (unless the aggregate amount of such dividends is included in such preferential amount); and
(iii) the market value per share of such class or series of stock on the announcement date with respect to such business combination or on such interested shareholder's stock acquisition date, whichever is higher; plus interest compounded annually from such date through the consummation date at the rate for one-year United States treasury obligations from time to time in effect; less the aggregate amount of any cash dividends paid, and the market value of any dividends paid other than in cash, per share of such class or series of stock since such date, up to the amount of such interest.
(C) The consideration to be received by holders of a particular class or series of outstanding stock (including common stock) of such resident domestic corporation in such business combination is in cash or in the same form as the interested shareholder has used to acquire the largest number of shares of such class of series of stock previously acquired by it, and such consideration shall be distributed promptly.
(D) The holders of all outstanding shares of stock of such resident domestic corporation not beneficially owned by such interested shareholder immediately prior to the consummation of such business combination are entitled to receive in such business combination cash or other consideration for such shares in compliance with clauses (A), (B) and (C) of this subparagraph.
(E) After such interested shareholder's stock acquisition date and prior to the consummation date with respect to such business combination, such interested shareholder has not become the beneficial owner of any additional shares of voting stock of such resident domestic corporation except:
(i) as part of the transaction which resulted in such interested shareholder becoming an interested shareholder;
(ii) by virtue of proportionate stock splits, stock dividends or other distributions of stock in respect of stock not constituting a business combination under clause (E) of subparagraph five of paragraph (a) of this section;
(iii) through a business combination meeting all of the conditions of paragraph (b) of this section and this paragraph; or
(iv) through purchase by such interested shareholder at any price which, if such price had been paid in an otherwise permissible business combination the announcement date and consummation date of which were the date of such purchase, would have satisfied the requirements of clauses (A), (B) and (C) of this subparagraph.
(d) The provisions of this section shall not apply:
(1) to any business combination of a resident domestic corporation that does not have a class of voting stock registered with the United States Securities and Exchange Commission pursuant to section twelve of the United States Exchange Act, unless the certificate of incorporation provides otherwise; or
(2) to any business combination of a resident domestic corporation whose certificate of incorporation has been amended to provided that such resident domestic corporation shall be subject to the provisions of this section, which did not have a class of voting stock registered with the United States Securities and Exchange Commission pursuant to section twelve of the United States Exchange Act on the effective date of such amendment, and which is a business combination with an interested shareholder whose stock acquisition date is prior to the effective date of such amendment; or
(3) to any business combination of a resident domestic corporation (i) the original certificate of incorporation of which contains a provision expressly electing not to be governed by this section, or (ii) which adopts an amendment to such resident domestic corporation's by-laws, approved by the affirmative vote of the holders, other than interested shareholders and their affiliates and associates, of a majority of the outstanding voting stock of such resident domestic corporation, excluding the voting stock of interested shareholders and their affiliates and associates, expressly electing not to be governed by this section, provided that such amendment to the by-laws shall not be effective until eighteen months after such vote of such resident domestic corporation's shareholders and shall not apply to any business combination of such resident domestic corporation with an interested shareholder whose stock acquisition date is on or prior to the effective date of such amendment; or
(4) to any business combination of a resident domestic corporation with an interested shareholder of such resident domestic corporation which became an interested shareholder inadvertently, if such interested shareholder (i) as soon as practicable, divests itself of a sufficient amount of the voting stock of such resident domestic corporation so that it no longer is the beneficial owner, directly or indirectly, of twenty percent or more of the outstanding voting stock of such resident domestic corporation, an (ii) would not at any time within the five-year period preceding the announcement date with respect to such business combination have been an interested shareholder but for such inadvertent acquisition.
913. SHARE EXCHANGES
(a)
(1) Two domestic corporations may, as provided in this section, participate in the consummation of a plan for binding share exchanges.
(2)Whenever used in this chapter:
(A) "Acquiring corporation" means a corporation that is participating in a procedure pursuant to which such corporation is acquiring all of the outstanding shares of one or more classes of a subject corporation.
(B) "Subject corporation'' means a corporation that is participating in a procedure pursuant to which all of the outstanding shares of one or more classes of such corporation are being acquired by an acquiring corporation.
(b) The board of the acquiring corporation and the board of the subject corporation shall adopt a plan of exchange, setting forth:
(1) The name of the acquiring corporation and the name of the subject corporation, and, if the name of either of them has been changed, the name under which it was formed;
(2) As to the acquiring corporation and the subject corporation, the designation and number of outstanding shares of each class and series, specifying the classes and series entitled to vote and further specifying each class and series, if any, entitled to vote as a class; and, if the number of any such shares is subject to change prior to the effective date of the exchange, the manner in which such change may occur;
(3) The terms and conditions of the proposed exchange, including the manner and basis of exchanging the shares to be acquired for shares, bonds or other securities of the acquiring corporation, or the cash or other consideration to be paid or delivered in exchange for such shares to be acquired, or a combination thereof; and
(4) Such other provisions with respect to the proposed exchange as the board considers necessary or desirable.
(c) The board of the subject corporation, upon adopting the plan of exchange, shall submit such plan, except as provided in paragraph (g) of this section, to a vote of shareholders in accordance with the following:
(1) Notice of meeting shall be given to each shareholder of record, as of the record date fixed pursuant to section 604 (Fixing record date), whether or not entitled to vote. A copy of the plan of exchange or an outline of the material features of the plan shall accompany such notice.
(2) The plan of exchange shall be adopted at a meeting of shareholders by vote of the holders of two-thirds of all outstanding shares entitled to vote thereon. Notwithstanding any provision in the certificate of incorporation, the holders of shares of a class or series shall be entitled to vote and to vote as a class if the plan of exchange contains any provision which, if contained in an amendment to the certificate of incorporation, would entitle the holders of shares of such class or series to vote as a class thereon, or if the shares of such class or series are to be exchanged pursuant to the plan of exchange. In such case, in addition to the authorization of the exchange by vote of the holders of two-thirds of all outstanding shares entitled to vote thereon, the exchange shall be authorized by vote of the holders of a majority of all outstanding shares of each such class or series. Notwithstanding shareholder authorization and at any time prior to the filing of the certificate of exchange, the plan of exchange may be abandoned pursuant to a provision for such abandonment, if any, contained in the plan of exchange.
(d) After adoption of the plan of exchange by the board of the acquiring corporation and the board of the subject corporation and by the shareholders of the subject corporation entitled to vote thereon, unless the exchange is abandoned in accordance with paragraph (c), a certificate of exchange, entitled "Certificate of exchange of shares of ..........., subject corporation, for shares of ......., acquiring corporation, or other consideration, under section 913 of the Business Corporation Code", shall be signed and verified on behalf of each corporation and delivered to the Nation Clerk. It shall set forth:
(1) the statements required by subparagraphs (1) and (2) of paragraph (b) of this section;
(2) the effective date of the exchange if other than the date of filing of the certificate of exchange by the Nation Clerk;
(3) the date when the certificate of incorporation of each corporation was filed by the Nation Clerk;
(4) the designation of the shares to be acquired by the acquiring corporation and a statement of the consideration for such shares; and
(5) the manner in which the exchange was authorized with respect to each corporation.
(e) Upon the filing of the certificate of exchange by the Nation Clerk or on such date subsequent thereto, not to exceed thirty days, as shall be set forth in such certificate, the exchange shall be effected. When such exchange has been effected, ownership of the shares to be acquired pursuant to the plan of exchange shall vest in the acquiring corporation, whether or not the certificates for such shares have been surrendered for exchange, and the acquiring corporation shall be entitled to have new certificates registered in its name or at its direction. Shareholders whose shares have been so acquired shall become entitled to the shares, bonds or other securities of the acquiring corporation, or the cash or other consideration, required to be paid or delivered in exchange for such shares pursuant to the plan. Subject to any terms of the plan regarding surrender of certificates thereto evidencing the shares so acquired and regarding whether such certificates shall thereafter evidence securities of the acquiring corporation, such certificates shall thereafter evidence only the right to receive the consideration required to be paid or delivered in exchange for such shares pursuant to the plan, or, in the case of dissenting shareholders, their rights under section 910 (Right of shareholder to receive payment for shares upon merger or consolidation, or sale, lease, exchange or other disposition of assets, or share exchange) and section 623 (Procedure to enforce shareholder's right to receive payment for shares).
(f)
(1) a foreign corporation and a domestic corporation may participate in a share exchange, but, if the subject corporation is a foreign corporation, only if such exchange is permitted by the laws of the jurisdiction under which such foreign corporation is incorporated. With respect to such exchange, any reference in subparagraph (2) of paragraph (a) of this section to a corporation shall, unless the context otherwise requires, include both domestic and foreign corporations, and the provisions of paragraphs (b), (c), (d) and (e) of this section shall apply, except to the extent otherwise provided in this paragraph.
(2) With respect to procedure, including the requirement of shareholder authorization, a domestic corporation shall comply with the provisions of this chapter relating to share exchanges in which domestic corporations are participating, and a foreign corporation shall comply with the applicable provisions of the law of the jurisdiction under which it is incorporated.
(3) If the subject corporation is a foreign corporation, the certificate of exchange shall set forth, in addition to the matters specified in paragraph (d), the jurisdiction and date of incorporation of such corporation and a statement that the exchange is permitted by the laws of the jurisdiction of such corporation and is in compliance therewith.
(g)
(1) Any corporation owning at least ninety percent of the outstanding common shares, having full voting rights, of another corporation may acquire by exchange the remainder of such outstanding common shares, without the authorization of the shareholders of any such corporation and with the effect provided for in paragraph (e) of this section. The board of the acquiring corporation shall adopt a plan of exchange, setting forth the matters specified in paragraph (b) of this section. A copy of such plan of exchange or an outline of the material features thereof shall be given, personally or by mail, to all holders of shares of the subject corporation that are not owned by the acquiring corporation, unless the giving of such copy or outline has been waived by such holders.
(2) A certificate of exchange, entitled "Certificate of exchange of shares of ....., subject corporation, for shares of ....., acquiring corporation, or other consideration, under paragraph (g) of section 913 of the Business Corporation Code" and complying with the provisions of paragraph (d) and, if applicable, subparagraph (3) of paragraph (f) shall be signed, verified and delivered to the Nation Clerk by the acquiring corporation, but not less than thirty days after the giving of a copy or outline of the material features of the plan of exchange to shareholders of the subject corporation, or at any time after the waiving thereof by the holders of all the outstanding shares of the subject corporation not owned by the acquiring corporation.
(3) The right of exchange of shares granted by this paragraph to certain corporations shall not preclude the exercise by such corporations of any other right of exchange under this chapter.
(4) The procedure for the exchange of shares of a subject corporation under this paragraph (g) of this section shall be available where either the subject corporation or the acquiring corporation is a foreign corporation, and, in case the subject corporation is a foreign corporation, where such exchange is permitted by the laws of the jurisdiction under which such foreign corporation is incorporated.
(h) This section does not limit the power of a domestic or foreign corporation to acquire all or part of the shares of one or more classes of another domestic or foreign corporation by means of a voluntary exchange or otherwise.
(i)
(1) A binding share exchange pursuant to this section shall constitute a "business combination'' pursuant to section nine hundred twelve of this chapter (Requirements relating to certain business combinations) if the subject corporation is a "resident domestic corporation'' and the acquiring corporation is an "interested shareholder" of the subject corporation, as such terms are defined in section nine hundred twelve of this chapter.
(2) With respect to convertible securities and other securities evidencing a right to acquire shares of a subject corporation, a binding share exchange pursuant to this section shall have the same effect on the rights of the holders of such securities as a merger of the subject corporation.
CHAPTER 10 - NON-JUDICIAL DISSOLUTION
1001. AUTHORIZATION OF DISSOLUTION
A corporation may be dissolved under this chapter. Such dissolution shall be authorized at a meeting of shareholders by the vote of the holders of two-thirds of all outstanding shares entitled to vote thereon, except as otherwise provided under section 1002 (Dissolution under provision in certificate of incorporation).
1002. DISSOLUTION UNDER PROVISION IN CERTIFICATE OF INCORPORATION
(a) The certificate of incorporation may contain a provision that any shareholder, or the holders of any specified number or proportion of shares, or of any specified number or proportion of shares of any class or series thereof, may require the dissolution of the corporation at will or upon the occurrence of a specified event. If the certificate of incorporation contains such a provision, a certificate of dissolution under section 1003 (Certificate of dissolution; contents) may be signed, verified and delivered to the Nation Clerk as provided in section 104 (Certificate; requirements, signing, filing, effectiveness) when authorized by a holder or holders of the number or proportion of shares specified in such provision, given in such manner as may be specified therein, or if no manner is specified therein, when authorized on written consent signed by such holder or holders; or such certificate may be signed, verified and delivered to the Nation Clerk by such holder or holders or by such of them as are designated by them.
(b) An amendment of the certificate of incorporation which adds a provision permitted by this section, or which changes or strikes out such a provision, shall be authorized at a meeting of shareholders by vote of all outstanding shares, whether or not otherwise entitled to vote on any amendment, or of such lesser proportion of shares and of such class or series of shares, but not less than a majority of all outstanding shares entitled to vote on any amendment, as may be provided specifically in the certificate of incorporation for adding, changing or striking out a provision permitted by this section.
(c) If the certificate of incorporation of any corporation contains a provision authorized by this section, the existence of such provision shall be noted conspicuously on the face or back of every certificate for shares issued by such corporation.
1003. CERTIFICATE OF DISSOLUTION; CONTENTS
(a) A certificate of dissolution, entitled "Certificate of dissolution of .... (name of corporation) under section 1003 of the Business Corporation Code", shall be signed, verified and delivered to the Nation Clerk. It shall set forth:
(1) The name of the corporation and, if its name has been changed, the name under which it was formed.
(2) The date its certificate of incorporation was filed by the Nation Clerk.
(3) The name and address of each of its officers and directors.
(4) That the corporation elects to dissolve.
(5) The manner in which the dissolution was authorized.
1004. CERTIFICATE OF DISSOLUTION; FILING
The Nation Clerk shall not file such certificate unless all Nation taxes have been paid. Upon payment of all Nation taxes, or a statement from the Chief Financial Officer of the Nation that no taxes are due, the certificate shall be filed.
1005. PROCEDURE AFTER DISSOLUTION
(a) After dissolution:
(1) The corporation shall carry on no business except for the purpose of winding up its affairs.
(2) The corporation shall proceed to wind up its affairs, with power to fulfill or discharge its contracts, collect its assets, sell its assets for cash at public or private sale, discharge or pay its assets for cash at public or private sale, discharge or pay its liabilities, and do all other acts appropriate to liquidate its business.
(3) After payment or adequately providing for the payment of its liabilities:
(A) The corporation, if authorized at a meeting of shareholders by a vote of the holders of a majority of all outstanding shares entitled to vote thereon may sell its remaining assets, or any part thereof, for cash, shares, bonds or other securities or partly for cash and partly for shares, bonds or other securities, and distribute the same among the shareholders according to their respective rights. In the case of a sale under this subparagraph where the consideration is in whole or in part other than cash, any shareholder, entitled to vote thereon, who does not vote for or consent in writing to such sale, thereon, who does not vote for or consent in writing to such sale, shall, subject to and by complying with the provisions of section 623 (Procedure to enforce shareholder’s right to receive payment for shares), have the right to receive payment for his shares. Section 909 (Sale, lease, exchange or other disposition of assets) is not applicable to a sale of assets under this paragraph.
(B) The corporation, whether or not it has made a sale under subparagraph (A), may distribute any remaining assets, in cash or in kind or partly each, among its shareholders according to their respective rights.
(b) When there are no shareholders, upon dissolution all subscriptions for shares shall be canceled and all obligations of the corporation to issue shares or of the subscribers to pay their subscriptions shall terminate, except for such payments as may be required to enable the corporation to pay its liabilities.
(c) Upon the winding up of the affairs of the corporation, any assets distributable to a creditor or shareholder who is unknown or cannot be found, or who is under disability and for whom there is no legal representative, shall be paid to the Nation as payment of the final liquidating distribution, and be subject to the provisions of the abandoned property law.
1006. CORPORATE ACTION AND SURVIVAL OF REMEDIES AFTER DISSOLUTION
(a) A dissolved corporation, its directors, officers and shareholders may continue to function for the purpose of winding up the affairs of the corporation in the same manner as if the dissolution had not taken place, except as otherwise provided in this chapter or by court order. In particular, and without limiting the generality of the foregoing:
(1) The directors of a dissolved corporation shall not be deemed to be trustees of its assets; title to such assets shall not vest in them, but shall remain in the corporation until transferred by it in its corporate name.
(2) Dissolution shall not change quorum or voting requirements for the board of shareholders, or provisions regarding election, appointment, resignation or removal of, or filling vacancies among, directors or officers, of provisions regarding amendment or repeal of by-laws or adoption of new by-laws.
(3) Shares may be transferred and determinations of shareholders for any purpose may be made without closing the record of shareholders until such time, if any, as such record may be closed, and either the board or the shareholders may close it.
(4) The corporation may sue or be sued in all courts and participate in actions and proceedings, whether judicial, administrative, arbitrative or otherwise, in its corporate name, and process may be served by or upon it.
(b) The dissolution of a corporation shall not affect any remedy available to or against such corporation, its directors, officers or shareholders for any right or claim existing or any liability incurred before such dissolution, except as provided in sections 1007 (Notice to creditors; filing or barring claims) or 1008 (Jurisdiction of Nation court to supervise dissolution and liquidation).
1007. NOTICE TO CREDITORS; FILING OR BARRING CLAIMS
(a) At any time after dissolution, the corporation may give a notice requiring all creditors and claimants, including any with unliquidated or contingent claims and any with whom the corporation has unfulfilled contracts, to present their claims in writing and in detail at a specified place and by a specified day, The giving of such notice shall not constitute a recognition that any person is a proper creditor or claimant, and shall not revive or make valid, or operate as a recognition of the validity of, or a waiver of any defense or counterclaim in respect of any claim against the corporation, its assets, directors, officers or shareholders, which has been barred by any statute of limitations or become invalid by any cause, or in respect of which the corporation, its directors, officers or shareholders, has any defense or counterclaim.
(b) Any claims which shall have been filed as provided in such notice and which shall be disputed by the corporation may be submitted for determination to the Nation court. A claim filed by the trustee or paying agent for the holders of bonds or coupons shall have the same effect as if filed by the holder of any such bond or coupon. Any person whose claim is, barred by any statute of limitations is not a creditor or claimant entitled to any notice under this section or section 1008. The claim of any such person and all other claims which are not timely filed as provided in such notice except claims which are the subject of litigation, and all claims which are so filed but are disallowed by the court under section 1008, shall be forever barred as against the corporation, its assets, directors, officers and shareholders, except to such extent, if any, as the court may allow them against any remaining assets of the corporation in the case of a creditor who shows satisfactory reason for his failure to file his claim as so provided.
(c) Notwithstanding this section and section 1008 tax claims and other claims of the Nation, another Indian Nation, any state and of the United States shall not be required to be filed under those sections, and such claims shall not be barred because not so filed, and distribution of the assets of the corporation, or any part thereof, may be deferred until determination of any such claims.
(d) Laborer's wages shall be preferred claims and entitled to payment before any other creditors out of the assets of the corporation in excess of valid prior liens or encumbrances.
1008. JURISDICTION OF ONEIDA NATION COURT TO SUPERVISE DISSOLUTION
AND LIQUIDATION
(a) At any time after the filing of a certificate of dissolution under this chapter the Nation court, in a special proceeding instituted under this section, upon the petition of the corporation, or, in a situation approved by the court, upon the petition of a creditor, claimant, director, officer, shareholder, subscriber for shares, incorporator or the Nation Prosecutor, may suspend or annul the dissolution or continue the liquidation of the corporation under the supervision of the court and may make all such order as it may deem proper in all matters in connection with the dissolution or the winding Lip of the affairs of the corporation, and in particular, and without limitation of the generality thereof, in respect of the following:
(1) The determination of the validity of the authorization of the dissolution of the corporation and of the execution and delivery of the certificate of dissolution under this chapter.
(2) The adequacy of the notice given to creditors and claimants and if it is determined to have been inadequate, the requirement of such further notice as the court may deem proper .
(3) The determination of the validity and amount or invalidity of any claims which have been presented to the corporation.
(4) The barring of all creditors and claimants who have not timely filed claims as provided in any such notice, or whose claims have been disallowed by the court, as against the corporation, its assets, directors, officers and shareholders.
(5) The determination and enforcement of the liability of any director, officer, shareholder or subscriber for shares, to the corporation or for the liabilities of the corporation.
(6) The payment, satisfaction or compromise of claims against the corporation, the retention of assets for such purpose, and the determination of the adequacy of provisions made for payment of the liabilities of the corporation.
(7) The disposition or destruction of records, documents and papers of the corporation.
(8) The appointment and removal of a receiver under chapter 12 (Receivership) who may be a director, officer or shareholder of the corporation.
(9) The issuance of injunctions for one or more of the purposes and as provided in section 1115 (Injunction).
(10) The return of subscription payments to subscribers for shares, and the making of distributions, in cash or in kind or partly each, to the shareholders.
(11) The payment to the Oneida Indian Nation, as abandoned property, of assets under paragraph (c) of section 1005 (Procedure after dissolution).
(b) Orders under this section may be entered ex parte, except that if such special proceeding was not instituted upon petition of the corporation, notice shall be given to the corporation in such manner as the court may direct. Notice shall be given to such other persons interested, and in such manner, as the court may deem proper, of any hearings and of the entry of any orders on such matters as the court shall deem proper. All orders made by the court under this section shall be binding upon the Nation, the corporation, its officers, directors, shareholders, subscribers for shares, incorporators, creditors and claimants.
(c)
(1) Simultaneously with the institution of such special proceeding for annulment of the dissolution, the petitioner shall apply to the Nation Clerk to reserve the corporation name to the corporation. If such name shall not be available for use, the petitioner forthwith upon being notified thereof shall apply to such department for the reservation of another and available name and any judgment or order of annulment made in such proceeding shall order and direct the petitioner to execute a certificate of change of the corporate name to such other name.
(2) The clerk of the court, shall transmit a certified copy of the judgment or order of annulment of the dissolution, together with the certificate of change of corporate name in the appropriate case, to the Nation Clerk. Upon filing by the Nation Clerk, the annulment of dissolution shall be effected.
1009. APPLICABILITY TO DISSOLUTION UNDER OTHER PROVISIONS
The provisions of sections 1005 (Procedure after dissolution), 1006 (Corporate action and survival of remedies after dissolution), 1007 (Notice to creditors; filing or barring claims) and 1008 (Jurisdiction of Nation court to supervise dissolution and liquidation) shall apply to a corporation dissolved by expiration of its period of duration.
CHAPTER 11 - JUDICIAL DISSOLUTION
1101. NATION PROSECUTOR'S ACTION FOR JUDICIAL DISSOLUTION
(a) The Nation Prosecutor may bring an action for the dissolution of a corporation upon one or more of the following grounds:
(1) That the corporation procured its formation through fraudulent misrepresentation or concealment of a material fact.
(2) That the corporation has exceeded the authority conferred upon it by law, or has violated any provision of law whereby it has forfeited its charter, or carried on, conducted or transacted its business in a persistently fraudulent or illegal manner, or by the abuse of its powers contrary to the public policy of the state has become liable to be dissolved.
(b) The enumeration in paragraph (a) of grounds for dissolution shall not exclude actions or special proceedings by the Nation Prosecutor for the annulment or dissolution of a corporation for other causes as provided in this chapter or in any other Nation statute.
1102. DIRECTORS' PETITION FOR JUDICIAL DISSOLUTION
If a majority of the board adopts a resolution that finds that the assets of a corporation are not sufficient to discharge its liabilities or that a dissolution will be beneficial to the shareholders, it may present a petition to the Nation Court for its dissolution.
1103. SHAREHOLDERS' PETITION FOR JUDICIAL DISSOLUTION
(a) If the shareholders of a corporation adopt a resolution stating that they find that its assets are not sufficient to discharge its liabilities, or that they deem a dissolution to be beneficial to the shareholders, the shareholders or such of them as are designated for that purpose in such resolution may present a petition to the Nation Court for its dissolution.
(b) A shareholders' meeting to consider such a resolution may be called, notwithstanding any provision in the certificate of incorporation, by the holders of ten percent of all outstanding shares entitled to vote thereon, or if the certificate of incorporation authorizes a lesser proportion of shares to call the meeting, by such lesser proportion. A meeting under this paragraph may not be called more often than once in any period of twelve consecutive months.
(c) Such a resolution may be adopted at a meeting of shareholders by vote of the holders of a majority of all outstanding shares entitled to vote thereon or if the certificate of incorporation requires a greater proportion of votes to adopt such a resolution, by such a greater proportion.
1104. PETITION IN CASE OF DEADLOCK AMOUNT DIRECTORS OR SHAREHOLDERS
(a) Except as otherwise provided in the certificate of incorporation under section 613 (Limitations on right to vote), the holders of one-half of all outstanding shares of a corporation entitled to vote in an election of directors may present a petition for dissolution on one or more of the following grounds:
(1) That the directors are so divided respecting the management of the corporation's affairs that the votes required for action by the board cannot be obtained,
(2) That the shareholders are so divided that the votes required for the election of directors cannot be obtained.
(3) That there is internal dissension and two or more factions of shareholders are so divided that dissolution would be beneficial to the shareholders.
(b) If the certificate of incorporation provided that the proportion of votes required for action by the board, or the proportion of votes of shareholders required for election of directors, shall be greater than that otherwise required by this chapter, such a petition may be presented by the holders of more than one-third of all outstanding shares entitled to vote on non-judicial dissolution under section 1001 (Authorization of dissolution).
(c) Notwithstanding any provision in the certificate of incorporation, any holder of shares entitled to vote at an election of directors of a corporation, may present a petition for its dissolution on the ground that the shareholders are so divided that they have failed, for a period which includes at least two consecutive annual meeting dates, to elect successors to directors whose terms have expired or would have expired upon the election and qualification of their successors.
1104-A. PETITION FOR JUDICIAL DISSOLUTION UNDER SPECIAL CIRCUMSTANCES
(a) The holders of twenty percent or more of all outstanding shares of a corporation, other than a corporation registered as an investment company under the United States law "Investment Company Act of 1940", 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, who are entitled to vote in an election of directors may present a petition of dissolution on one or more of the following grounds:
(1) The directors or those in control of the corporation have been guilty of illegal, fraudulent or oppressive actions toward the complaining shareholders;
(2) The property or assets of the corporation are being looted, wasted, or diverted for non-corporate purposes by its directors, officers or those in control of the corporation.
(b) The court, in determining whether to proceed with involuntary dissolution pursuant to this section, shall take into account:
(1) Whether liquidation of the corporation is the only feasible means whereby the petitioners may reasonably expect to obtain a fair return on their investment; and
(2) Whether liquidation of the corporation is reasonably necessary for the protection of the rights and interests of any substantial number of shareholders or of the petitioners.
(c) In addition to all other disclosure requirements, the directors or those in control of the Corporation, no later than thirty days after the filing of a petition hereunder, shall make available for inspection and copying to the petitioners under reasonable working conditions the corporate financial books and records for the three preceding years.
(d) The court may order stock valuations be adjusted and may provide for a surcharge upon the directors or those in control of the corporation upon a finding of willful or reckless dissipation or transfer of assets or corporate property without just or adequate compensation therefore.
1105. CONTENTS OF PETITION FOR JUDICIAL, DISSOLUTION
A petition for dissolution shall specify the section or sections of this chapter under which it is authorized and state the reasons why the corporation should be dissolved. It shall be verified by the petitioner or by one of the petitioners.
1106. ORDER TO SHOW CAUSE; ISSUANCE; PUBLICATION, SERVICE, FILING
(a) Upon the presentation of such a petition, the court shall make an order requiring the corporation and all persons interested in the corporation to show cause before it, or before a referee designated in the order, at a time and place therein specified, not less than four weeks after the granting of the order, why the corporation should not be dissolved. In connection therewith, the court may order the corporation, its officers and directors, to furnish the court with a schedule of all information, known or ascertainable with due diligence by them, deemed pertinent by the court, including a statement of the corporate assets and liabilities, and the name and address of each shareholder and of each creditor and claimant, including any with unliquidated or contingent claims and any with whom the corporation has unfulfilled contracts.
(b) A copy of the order to show cause and the petition shall be filed, within ten days after the order is entered, with the Nation Clerk. A copy of each schedule furnished to the court under this section shall, within ten days thereafter, be filed with the Nation Clerk.
1107. AMENDING PAPERS
At any stage, before final order, the court may grant an order amending the petition or ally other paper filed in the action or special proceeding, with like effect as though originally filed as amended, or otherwise as the court may direct.
1108. REFEREE
If a referee was not designated in the order to show cause, the court, in its discretion, may appoint a referee when or after the order is returnable. The court may at any time appoint a successor referee.
1109. HEARING AND DECISION
At the time and place specified in the order to show cause, or at any other time and place to which the hearing is adjourned, the court or the referee shall hear the allegations and proofs of the parties and determine the facts. The decision of the court or the report of the referee shall be made and filed with the clerk of the court with all convenient speed.
1110. APPLICATION FOR FINAL, ORDER
When the hearing is before a referee, a motion for a final order must be made to the court upon notice to each party to the action or special proceeding who has appeared therein. The notice of motion may be served as prescribed for the service of papers upon an attorney in an action in such court. When the hearing is before the court, a motion for a final order may be made at the hearing or at such time and upon such notice as the court prescribes.
1111. JUDGMENT OR FINAL ORDER OF DISSOLUTION
(a) In an action or special proceeding under this chapter if, in the court's discretion, it shall appear that the corporation should be dissolved, it shall make a judgment or final order dissolving the corporation.
(b) In making its decision, the court shall take into consideration the following criteria:
(1) In an action brought by the Nation Prosecutor, the interest of the public is of paramount importance.
(2) In a special proceeding brought by directors or shareholders, the benefit to the shareholders of a dissolution is of paramount importance.
(3) In a special proceeding brought under section 1104 (Petition in case of deadlock among directors or shareholders) or section 1104-a (Petition for judicial dissolution under special circumstances) dissolution is not to be denied merely because it is found that the corporate business has been or could be conducted at a profit.
(c) If the judgment or final order shall provide for a dissolution of the corporation, the court may, in its discretion, provide therein for the distribution of the property of the corporation to those entitled thereto according to their respective rights.
(d) The clerk of the court or such other person as the court may direct shall transmit certified copies of the judgment or final order of dissolution to the Nation Clerk. Upon filing by the Nation Clerk, the corporation shall be dissolved.
(e) The corporation shall promptly thereafter transmit a certified copy of the judgment or final order to the Nation Clerk.
1112. PRESERVATION OF ASSETS; APPOINTMENT OF RECEIVER
At any stage of an action or special proceeding under this chapter, the court may, in its discretion, make all such orders as it may deem proper in connection with preserving the property and carrying on the business of the corporation, including the appointment and removal of a receiver under chapter 12 (Receivership), who may be a director, officer or shareholder of the corporation.
1113. CERTAIN SALES, TRANSFER, SECURITY INTERESTS AND JUDGMENTS VOID
A sale, mortgage, conveyance or other transfer of, or the creation of a security interest in, any property of a corporation made, without prior approval of the court, after service upon the corporation of a summons in an action, or of an order to show cause in a special proceeding, under this chapter in payment of or as security for an existing or prior debt or for any other or for no consideration, or a judgment thereafter rendered against the corporation by confession or upon the acceptance of any offer, shall be void as against such persons and to such extent, if any, as the court shall determine.
1114. INJUNCTION
(a) At any stage of an action or special proceeding under this chapter, the court may, in its discretion, grant an injunction, effective during the pendency of the action or special proceeding or such shorter period as it may specify in the injunction, for one or more of the following purposes:
(1) Restraining the corporation and its directors and officers from transacting any unauthorized business and from exercising any corporate powers, except by permission of the court.
(2) Restraining the corporation and its directors and officers from collecting or receiving any debt or other property of the corporation, and from paying out or otherwise transferring or delivering any property of the corporation, except by permission of the court.
(3) Restraining the creditors of the corporation from beginning any action against the corporation, or from taking any proceedings in an action theretofore commenced, except by permission of the court. Such injunction shall have the same effect and be subject to the same provisions of law as if each creditor upon whom it is served was named therein.
1115. DISCONTINUANCE OF ACTION OR SPECIAL PROCEEDING
An action or special proceeding for the dissolution of a corporation may be discontinued at any stage when it is established that the cause for dissolution did not exist or no longer exists. In such event, the court shall dismiss the action or special proceeding and direct any receiver to redeliver the corporation all its remaining property.
1116. APPLICABILITY OF OTHER PROVISIONS
(a) Subject to the provisions of this article, the provisions of sections 1005 (Procedure after dissolution), 1006 (Corporate action and survival of remedies after dissolution), 1007 (Notice to creditors; filing or barring claims) and 1008 (Jurisdiction of Oneida Indian Nation court to supervise dissolution and liquidation) shall apply to a corporation dissolved under this article.
(b) Any orders provided for in section 1008, may be made at any stage of an action or special proceeding for dissolution of a corporation under this article, and if the corporation is dissolved under this article, the court may retain jurisdiction for the purpose of making such orders, after the dissolution, in such action or special proceeding. The court may also make such orders in separate special proceedings, as provided in section 1008.
(c) Notice to creditors and claimants, provided for in section 1007, may also be given, by order of the court, at any stage of an action or special proceeding for dissolution of a corporation under this article.
1117. PURCHASE OF PETITIONER'S SHARES; VALUATION
(a) In any proceeding brought pursuant to section eleven hundred four-a of this chapter, any other shareholder or shareholders or the corporation may, at any time within ninety days after the filing of such petition or at such later time as the court in its discretion may allow, elect to purchase the shares owned by the petitioners at their fair value and upon such terms and conditions as may be approved by the court, including the conditions of paragraph (c) herein. An election pursuant to this section shall be irrevocable unless the court, in its discretion, for just and equitable consideration determines that such election be revocable.
(b) If one or more shareholders or the corporation elect to purchase the shares owned by the petitioner but are unable to agree with the petitioner upon the fair value of such shares, the court, upon the application of such prospective purchaser or purchasers, or the petitioner, may stay the proceedings brought pursuant to section 1104-a of this chapter and determine the fair value of the petitioner's shares as of the day prior to the date on which such petition was filed, exclusive of my element of value arising from such filing but giving effect to any adjustment or surcharge found to be appropriate in the proceeding under section 1104-a of this chapter. In determining the fair value of the petitioner's shares, the court, in its discretion, may award interest from the date the petition is filed to the date of payment for the petitioner's share at an equitable rate upon judicially determined fair value of his shares.
(c) In connection with any election to purchase pursuant to this section:
(1) If such election is made beyond ninety days after the filing of the petition, the court allows such petition, the court, in its discretion, may award the petitioner his reasonable expenses incurred in the proceeding prior to such election, including reasonable attorneys' fees;
(2) The court, in its discretion, may require, at any time prior to the actual purchase of petitioners shares, the posting of a bond or other acceptable security in an amount sufficient to secure petitioners for the fair value of his shares.
1201. ACTION BY JUDGMENT CREDITOR FOR SEQUESTRATION
Where final judgment for a sum of money has been rendered against a corporation, and an execution issued has been returned wholly or partly unsatisfied, the judgment creditor may maintain an action to procure a judgment sequestrating the property of the corporation and providing for a distribution thereof.
1202. APPOINTMENT OF RECEIVER OF PROPERTY OF A DOMESTIC OR FOREIGN
CORPORATION
(a) A receiver of the property of a corporation can be appointed only by the court, and in one of the following cases:
(1) An action or special proceeding brought under chapter 10 (Non-judicial dissolution) or 11 (Judicial dissolution).
(2) An action under section 1201 (Action by judgment creditor for sequestration).
(3) An action brought by the Nation Prosecutor or by a shareholder to preserve the assets of a corporation.
(4) An action to preserve the assets of any kind, tangible or intangible, of a foreign corporation which has been dissolved, nationalized or its authority or existence otherwise terminated or canceled in the jurisdiction of its incorporation or which has ceased to do business, brought by any creditor or shareholder of such corporation or by one on whose behalf an order of attachment against the property of such corporation has been issued.
(b) A receiver shall be subject to the control of the court at all times and may be removed by the court at any time.
(c) All actions or special proceedings brought by or against a receiver shall have a preference.
1203. TEMPORARY AND PERMANENT RECEIVER
(a) At any stage before final judgment or final order in an action or special proceeding brought under this chapter, the court may appoint one or more receivers of the property of the corporation or of the property of a foreign corporation against which an action has been brought under subparagraph (a)(4) of section 1202 (Appointment of receiver of property of a domestic or foreign corporation). Notice of an application for the appointment of a receiver shall be given to the Nation Prosecutor and to such other persons and in such manner as the court directs. The determination by the court of the necessity or advisability of appointing a receiver or an attorney for a receiver, and the allowance of expenses, commissions or compensation to the receiver or his attorney, shall be subject to review on appeal. This provision shall not affect any other right to review on appeal.
(b) A receiver appointed by or under a final judgment or order in an action or special proceeding, or a temporary receiver who is continued by the final judgment or order, is a permanent receiver. The court may confer upon a temporary receiver the powers, and subject him to the duties of a permanent receiver, or so much thereof as it deems proper.
1204. OATH AND SECURITY
(a) A receiver, before entering upon his duties, shall:
(1) Take and subscribe an oath that he will faithfully, honestly and impartially discharge the trust committed to him, and the oath shall be filed with the clerk of the court in which the action or special proceeding is pending.
(2) File with the clerk of such court a bond, with at least two sufficient sureties or a bond executed by any fidelity or surety company in a penalty fixed by the court appointing him, conditioned for the faithful discharge of his duties as receiver. The court may at any time direct a receiver to give a new bond with new sureties and with like condition.
1205. DESIGNATION OF DEPOSITORIES BY COURT
All orders appointing a receiver of a corporation shall designate therein one or more places of deposit, wherein all funds of the corporation not needed for immediate distribution shall be deposited and no other deposits and no investment of such funds shall be made, except upon the order of the court.
1206. POWERS OF PERMANENT RECEIVER
(a) A permanent receiver, upon qualifying under section 1204 (Oath and security), shall be vested with title to all the property of the corporation wherever situated or of the property within the territorial jurisdiction of the Nation of a foreign corporation against which an action or special proceeding has been brought under subparagraph (a)(4) of section 1202 (Appointment of receiver of property of a domestic or foreign corporation), for the benefit of the creditors and shareholders of the corporation.
(b) A permanent receiver shall have the power:
(1) To sue his own name or otherwise for the recovery of the property, debts and causes of action of the corporation. No set-off or counterclaim shall be allowed in any such action for any demand unless it was owing by the corporation to the defendant before the commencement of the action or special proceeding in which the receiver was appointed or unless it shall have been incurred by the receiver subsequent to his appointment.
(2) To sell at public or private sale all the property vested in him, in such manner and on such terms and conditions as the court shall direct, and to make necessary transfers and conveyances thereof
(3) To examine on oath, to be administered by him, any person concerning any matter pertaining to or affecting the receivership.
(4) To settle or compound any demands by or against the receivership.
(c) When more than one receiver is appointed, all provisions in this chapter in reference to one receiver shall apply to them.
(d) When more than one receiver is appointed, the debts and property of the corporation may be collected and received by any of them; when more than two receivers are appointed, the powers and rights conferred on them may be exercised by any two.
(e) When more than one receiver is appointed, the survivor or survivors of such receivers shall have all the powers and right of the receivers.
1207. DUTIES OF RECEIVER UPON APPOINTMENT
(a) Upon appointment and qualification, a receiver shall have the following duties:
(1) To give immediate notice of his appointment by publication once a week for two successive weeks in two newspapers of general circulation in Madison County, New York or, in the case of a foreign corporation against which an action has been brought under subparagraph (a)(4) of section 1202 (Appointment of receiver of property of a domestic or foreign corporation), in a newspaper of general circulation as directed by the court, requiring:
A) All persons indebted to the corporation to render an account of all debts owing by them to the corporation and to pay the same to the receiver at a specified place and by a specified day.
B) All persons having in their possession any property of the corporation to deliver the same to the receiver at the specified place and by the specified day.
C) All creditors and claimants, including any with unliquidated or contingent claims and any with whom the corporation has unfulfilled contracts, to present their claims to the receiver in writing and in detail at a specified place and by a specified day, which shall not be less than six months after the first publication of such notice. Whenever a receiver is appointed in dissolution proceedings under chapter 10 (Non-judicial dissolution) or chapter 11 (Judicial dissolution), section 1007 (Notice to creditors; filing or barring claims) shall apply and shall control the giving of notice to creditors and claimants and the filing and barring of claims.
(2) To call a general meeting of the creditors of the corporation within four months from the date of his appointment by a notice to be published as directed in subparagraph (a)(1), setting forth the time and place of such meeting, which time shall be not more than two months, nor less than one month after the first publication of such notice. At such meeting, or at an adjournment thereof, the receiver shall present a statement of all accounts and demands for and against the corporation, its subsisting contracts, and the money and other assets in his hands.
(3) To keep true books of account of all moneys received and expended by him as receiver, which books shall be open for inspection at reasonable times by creditors or other persons interested therein. On or before the first day of February in each year, for the preceding calendar year, and at such other times as the court shall direct, the receiver shall file with the clerk of the court by which he was appointed a verified statement showing the assets received, the disposition thereof, the money on hand, all payments made, specifying the persons to whom paid and the purpose of the payments, the amount necessary to be retained to meet necessary expenses and claims against the receiver, and the distributive share in the remainder of each person interested therein. A copy of such statement shall be served by the receiver upon the Nation Prosecutor within five days after the filing thereof.
1208. PENALTY FOR CONCEALING PROPERTY FROM RECEIVER
Any persons having possession of property belonging to the corporation, who shall wrongfully withhold such property from the receiver after the day specified in the notice given under section 1207 (Duties of receiver upon appointment), shall forfeit to the receiver double the value of such property, and the same may be recovered in an action by the receiver.
1209. RECOVERY OF ASSETS
(a) Whenever a receiver, by verified petition to the Nation court shall show that he has good reason to believe that any person has in his possession or under his control, or has wrongfully concealed, withheld or disposed of, any property of the corporation, or that any person can testify concerning such facts, the court, with or without notice, shall make an order requiring such person to appear before the court or a referee, at a time and place designated, and submit to an examination concerning such facts. In such order, or at any time thereafter, in its discretion, the court may enjoin and restrain such person from disposing of any property of the corporation in his possession or under his control.
(b) In any examination under such order, the court may confer immunity.
(c) A person so ordered to appear shall be subject to the same penalties upon failure to appear and testify in obedience to such order as are provided by law in the case of witnesses who fail to obey a subpoena to appear and testify in an action.
(d) A person appearing for examination in obedience to such order shall be sworn, and shall be entitled to represented on such examination by counsel, and may be cross-examined, or may make a voluntary statement in his own behalf concerning the subject of his examination.
(e) The testimony taken under such order shall be signed and sworn to by the person examined, and be filed in the office of the clerk of the Nation court. If it shall appear that any person is wrongfully concealing or withholding, or has in his possession or under his control, any property of the corporation, on notice to him, the court may make an order requiring him forthwith to deliver it to the receiver, subject to the further order of the court.
1210. ORDER OF PAYMENT BY RECEIVER
(a) Laborers' wages shall be preferred claims and entitled to payment before any other creditors out of the assets of the corporation in excess of valid prior liens or encumbrances.
(b) The receiver shall, subject to any prior liens or encumbrances, distribute the residue of the moneys in his hands, among the creditors whose claims have been proved and allowed, as follows:
(1) All debts due by such corporation to the Oneida Indian Nation and all debts entitled to a preference under applicable laws.
(2) All debts that may be owing by the corporation as trustee.
(3) Judgments against the corporation, to the extent of the value of the real property on which they are liens.
(4) All other creditors, in proportion to their respective demands, without preferences to specialty debts.
1211. FINAL DISTRIBUTION BY RECEIVER
(a) If there remains property of the corporation after the first distribution, the receiver shall, within one year thereafter, make a final distribution among the creditors entitled thereto.
(b) A creditor or claimant who failed to prove his claim before the first distribution and who proves it before the final one shall receive the sum he would have been entitled to on the first distribution before any further distribution shall be made to other creditors or claimants.
(c) Unless the court shall otherwise direct, no other distribution shall be made thereafter to creditors, except to those having pending actions against the corporation or the receiver.
(d) After the final distribution to creditors, the receiver shall not be answerable to any creditor or claimant, unless his claim shall have been proved before or at the time specified in the notice of the final distribution.
1212. DISPOSITION OF MONEYS RETAINED; SURPLUS; UNCLAIMED DISTRIBUTIONS
(a) When any action pending at the time of the final distribution shall be terminated, the receiver shall apply the moneys retained by him to the payment of the amount recovered, and his necessary charges and expenses incurred therein.
(b) After the final distribution to creditors and after deducting his charges and expenses, the receiver shall distribute any surplus among the shareholders of the corporation, in accordance with their respective rights.
(c) Any portion of the assets distributable to a creditor or shareholder who is unknown or cannot be found, or who is under disability and for whom there is not legal representative, shall be paid by the receiver to the Nation as abandoned property within six months from the date fixed for the payment of the final liquidating distribution, and be subject to the provisions of the abandoned property law.
1213. OMISSION OR DEFAULT OF RECEIVER
Upon notice to the Nation Prosecutor and upon such notice to creditors or others interested as the court shall direct, the court may, in the furtherance of justice, relieve a receiver from any omission or default, on such conditions as may be imposed, and, on compliance therewith, confirm his action.
1214. APPLICATION BY NATION PROSECUTOR FOR REMOVAL OF RECEIVER AND
TO CLOSE RECEIVERSHIP
(a) Whenever he deems it to be to the advantage of the shareholders, creditors or other persons interested in the assets of any corporation for which a receiver has been appointed, the Nation Prosecutor may move:
(1) For an order removing the receiver and appointing another in his stead;
(2) To compel the receiver to account;
(3) For such other and additional orders as may facilitate the closing of the receivership
1215. RESIGNATION BY RECEIVER, FILLING ANY VACANCY
(a) A receiver may petition the court appointing him for an order to show cause why he should not be permitted to resign.
(b) The petition shall be accompanied by a verified account of all the assets of the corporation received by him, of all payments or other disposition thereof made by him, of the remaining assets of the corporation in respect to which he was appointed receiver and the situation of the same, and of all his transactions as receiver. Thereupon, the court shall grant an order directing notice to be given to the sureties on his official bond and to all persons interested in the property of the corporation to show cause, at a time and place specified, why the receiver should not be permitted to resign. If it shall appear that the proceedings of the receiver in the discharge of his trust have been fair and honest and that there is not good cause to the contrary, the court shall make an order permitting such receiver to resign. Thereupon he shall be discharged and his powers as receiver shall cease, but he shall remain subject to any liability incurred prior to the making of such order. The court, in its discretion, may require the expense of such proceeding to be paid by the receiver presenting the petition.
(c) Any vacancy created by resignation, removal, death or otherwise, may be filled by the court, and the property of the receivership shall be delivered to the remaining receivers or, if there are none, to the successor appointed by the court. The court may summarily enforce delivery by order in the action or special proceeding in which the receiver was appointed.
1216. FINAL ACCOUNTING; NOTICE; DUTY OF NATION PROSECUTOR .
(a) Within one year after qualifying, the receiver shall apply to the court for a final settlement of his accounts and for an order for distribution, or, upon notice to the Nation Prosecutor, for an extension of time, setting forth the reasons therefore. If the receiver has not so applied for a settlement of his accounts or for such extension of time, the Nation Prosecutor or any creditor or shareholder may apply for an order that the receiver show cause why an accounting and distribution should not be had, and after the expiration of eighteen months from the time the receiver qualified, it shall be the duty of the Nation Prosecutor to apply for such an order on notice to the receiver.
(b) Before presenting a final account, the receiver shall give notice of his intention to file it by publication, under subparagraph (a)(1) of section 1207 (Duties of receiver upon appointment), setting forth the time and place of filing and presentation to the court. The receiver shall also give not less than eight days' written notice to the sureties on his official bond.
(c) Upon presentation of such account, the court shall hear the allegations, objections and proofs of all parties interested and allow or disallow such account, in whole or in part, and make a final order. The court may refer the account and the hearing, in whole or in part, to a referee who shall report thereon to the court.
1217. COMMISSIONS
(a) A receiver shall be entitled, in addition to his necessary expenses, to such commissions upon the sums received and disbursed as may be allowed by the court, as follows:
(1) On the first twenty thousand dollars, not exceeding five percent;
(2) On the next eighty thousand dollars, not exceeding two and one-half percent; and
(3) On the remainder, not exceeding one percent.
(b) If the commissions of the receiver so computed do not amount to one hundred dollars, the court in its discretion may allow such sum not exceeding one hundred dollars as shall be reasonable.
(c) When more than one receiver shall be appointed, the compensation herein provided shall be divided between them, as the court directs.
1218. SPECIAL PROVISIONS RELATING TO ACTIONS OR SPECIAL PROCEEDINGS
AGAINST FOREIGN CORPORATIONS
(a) In any action or special proceeding brought against a foreign corporation under this chapter, the following provisions shall apply.
(1) Service of the summons in such action may be made personally within the territorial jurisdiction of the Oneida Indian Nation, by delivery of the same to any officer or director of the corporation, or by publication pursuant to an order obtained as hereinafter provided.
(2) An order directing service by publication of the summons shall be made upon application of a plaintiff in any such action and shall be founded upon a verified complaint, alleging that the defendant is a foreign corporation and has or may have or may be entitled to assets, credits, chose in action or other property, tangible or intangible within the territorial jurisdiction of the Oneida Indian Nation and that such corporation has been dissolved, nationalized or that its authority or existence has been terminated or canceled in the jurisdiction of its incorporation, or that it has ceased to do business, and upon an affidavit reciting that personal service of the summons cannot be effected within the territorial jurisdiction of the Oneida Indian Nation with due diligence and that a temporary receiver of its property within the territorial jurisdiction of the Oneida Indian Nation has been appointed pursuant to this chapter in such action and that a copy of the order appointing the receiver has been served personally by or on behalf of such receiver upon a person, firm or corporation holding property, tangible or intangible, of the said foreign corporation exists and that demand therefore has been made upon such person, firm or corporation by or on behalf of such receiver.
(3) The order directing service of the summons shall require the publication thereof in a newspaper published in the general locality of the Nation in the Oneida or English language at least once a week for four successive weeks, and shall also require the mailing on or before the date of the first publication of a copy of the summons, complaint and order to the corporation at its last known principal or head office in the stated or country of its incorporation.
(4) In any such action, the summons shall be served personally or an order directing service thereof by publication shall be obtained and the first publication thereof made within sixty days after the appointment of the temporary receiver, and if served by publication, the service shall be made complete by the continuance thereof.
(5) If served by publication, service of the summons shall be deemed complete on the date of the last publication. The action shall be deemed commenced upon the issuance of the summons. The order appointing the receiver and the paper upon which the same is granted shall be filed in the office of the clerk of the court where the action is triable within ten days after the order is made.
(6) In the event that the defendant defaults in answering, or if after a trial the court is satisfied that the defendant has ceased to do business by reason of any thing or matter whatsoever, or that it has been dissolved, nationalized, or its authority or existence has been otherwise terminated or canceled, the court shall thereupon direct judgment, appointing a permanent receiver and directing the receiver to liquidate the assets, credits, chose in action and property, tangible and intangible, within the territorial jurisdiction of the Nation of the said defendant, in the manner provided in this chapter.
(7) The time between the cessation of business by the corporation or its dissolution or nationalization or the termination or cancellation of its authority or existence and the appointment of a receiver pursuant to this chapter, whichever time is longer, plus three years after such appointment, shall not be a part of the time limited by domestic or foreign law for the commencement of an action or for the assertion of a claim therein by or no behalf of or against said corporation or by or against said receiver, whether or not said action or claim has heretofore been barred by any statute of limitations of the Nation or any other Indian Nation or country.
(8) The existence of and cause of action of or against such corporation existing at the time of its dissolution, nationalization, or the termination or cancellation of its authority or existence, or arising thereafter, shall not be deemed ended, abated or affected thereby, nor shall actions brought by or against such corporation or a receiver appointed hereunder or any remedy therein be deemed to have ended or abated or to have been affected by reason of such dissolution, nationalization, or termination or cancellation of its authority or existence. This provision shall apply to all property, tangible and intangible, debts, demands, and chooses in action of such corporation within the Nation, and to all litigation heretofore or hereafter brought in the Nation court to which the corporation or the receiver of said corporation appointed pursuant to the provisions of this chapter is a party. Any receiver appointed pursuant to the provisions of the article may be substituted for such corporation in any action or proceeding pending in the Nation court to which such corporation is a party and may intervene in any action or proceeding which relates to or affects any of the assets or claims of the corporation and revive any action which shall have heretofore or which may hereafter have abated, and such dissolution, nationalization, or termination or cancellation of its authority or existence in the jurisdiction of its incorporation, or any confiscatory law or decree thereof, shall not be deemed to have any extra-territorial effect or validity as to the property, tangible or intangible, debts, demands or chooses in action of such corporation within the territorial jurisdiction of the Nation or any debts or obligations owing to such corporation from persons, firms or corporations residing, sojourning or doing business within the territorial jurisdiction of the Nation. Nothing contained in this subdivision shall be deemed to validate claims for or causes of action or actions to recover property located in or moneys payable in the jurisdiction of incorporation which are unenforceable under the laws of such jurisdiction.
(9) If any receiver or trustee has heretofore been appointed for such corporation or its property in any action or proceeding, either before or supplementary to judgment, otherwise than in an action brought pursuant to this article, such receiver or trustee may be appointed or continued as the receiver in any action brought pursuant to the provisions of this chapter.
(10) The appointment of a receiver or the pendency of an action for the appointment of such receiver, shall until such receiver shall be discharged or until such action shall have terminated, be a bar to any subsequent application or action for the appointment of a receiver of the assets of the same corporation.
(11) An action shall be commenced within three years from the discovery by the plaintiff or his predecessor in interest, of any asset of said corporation within the territorial jurisdiction of the Nation.
CHAPTER 13 - FOREIGN CORPORATIONS
1301. AUTHORIZATION OF FOREIGN CORPORATIONS
(a) A foreign corporation shall not do business within the territorial jurisdiction of the Nation until is has been authorized to do so as provided in this chapter. A foreign corporation may be authorized to do within the territorial jurisdiction of the Nation any business which may be done lawfully within the territorial jurisdiction of the Nation by a domestic corporation, to the extent that it is authorized to do such business in the jurisdiction of its incorporation, but no other business.
(b) Without excluding other activities which may not constitute doing business within the territorial jurisdiction of the Nation, a foreign corporation shall not be considered to be doing business within the territorial jurisdiction of the Nation, for the purposes of this chapter, by reason of carrying on within the territorial jurisdiction of the Nation any one or more of the following activities:
(1) Maintaining or defending any action or proceeding, whether judicial, administrative, arbitrative or otherwise, or effecting settlement thereof or the settlement of claims or disputes.
(2) Holding meetings of its directors or its shareholders.
(3) Maintaining bank accounts.
(4) Maintaining offices or agencies only for the transfer, exchange and registration of its securities, or appointing and maintaining trustees or depositaries with relation to its securities.
(c) The specification in paragraph (b) does not establish a standard for activities which may subject a foreign corporation to service of process under this chapter or any other statute of the Nation.
(d) A foreign corporation whose corporate name is not acceptable for authorization pursuant to section 301 and 302 of this chapter, may submit in its application for authority pursuant to section 1304 of this chapter, a fictitious name under which it shall do business in the Nation. A fictitious name submitted pursuant to this section shall be subject to the provisions of subparagraphs (2) through (9) of paragraph (a) of section 301 and 302 of this chapter. A foreign corporation authorized to do business within the territorial jurisdiction of the Nation under a fictitious name pursuant to this section, shall use such fictitious name in all of its dealings with the Nation Clerk and in the conduct of its business within the territorial jurisdiction of the Nation.
1302. APPLICATION TO EXISTING AUTHORIZED FOREIGN CORPORATIONS
Every foreign corporation which on the effective date of this chapter is authorized to do business within the territorial jurisdiction of the Nation under a certificate of authority heretofore issued to it by the Nation Clerk shall continue to have such authority. Such foreign corporation, its shareholders, directors and officers shall have the same rights, franchises and privileges and shall be subject to the same limitations, restrictions, liabilities and penalties as a foreign corporation authorized under this chapter, its shareholders, directors and officers respectively. Reference in this chapter to an application for authority shall, unless the context otherwise requires, include the statement and designation and any amendment thereof required to be filed by the Nation Clerk under prior statutes to obtain a certificate of authority.
1303. VIOLATIONS
The Nation Prosecutor may bring an action to restrain a foreign corporation from doing within the territorial jurisdiction of the Nation without authority any business for the doing of which it is required to be authorized within the territorial jurisdiction of the Nation, or from doing within the territorial jurisdiction of the Nation any business not set forth in its application for authority or certificate of amendment filed by the Nation Clerk. The Nation Prosecutor may bring an action or special proceeding to annul the authority of a foreign corporation doing within the territorial jurisdiction of the Nation any business not set forth in its application for authority or certificate of amendment or the authority of which was obtained through fraudulent misrepresentation or concealment of a material fact or to enjoin or annul the authority of any foreign corporation which within the territorial jurisdiction of the Nation contrary to law has done or omitted any act which if done by a domestic corporation would be a cause for its dissolution under section 1101 (Nation Prosecutor action for judicial dissolution) or to annul the authority of a foreign corporation that has been dissolved or had its authority or existence otherwise terminated or canceled in the jurisdiction of its incorporation. The Nation Prosecutor shall deliver a certified copy of the order of annulment to the secretary of state. Upon the filing thereof by the Nation Clerk the authority of the foreign corporation to do business within the territorial jurisdiction of the Nation shall be annulled. The Nation Clerk shall continue as agent of the foreign corporation upon whom process against it may be served in any action or special proceeding based upon any liability or obligation incurred by the foreign corporation within the territorial jurisdiction of the Nation prior to the filing of the certified copy of the order of annulment by the Nation Clerk.
1304. APPLICATION FOR AUTHORITY; CONTENTS
(a) A foreign corporation may apply for authority to do business within the territorial jurisdiction of the Nation. An application, entitled "Application for authority of .......... (name of corporation) under section 1304 of the Business Corporation Code", shall be signed and verified by an officer of or attorney-in-fact for the corporation and delivered to the Nation Clerk. It shall set forth:
(1) The name of the foreign corporation.
(2) The fictitious name the corporation agrees to use within the territorial jurisdiction of the Nation pursuant to section 1301 of this chapter, if applicable.
(3) The jurisdiction and date of its incorporation.
(4) 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 chapter, provided that it also state that it is not formed to engage in any act or activity requiring the consent or approval of the Nation, department, board, agency or other body 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 chapter, if any.
(5) The address of its office.
(6) A designation of the Nation Clerk as its agent 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.
(7) If it is to have a registered agent, his name and address within the Nation and a statement that the registered agent is to be its agent upon whom process against it may be served.
(8) A statement that the foreign corporation has not since its incorporation or since the date its authority to do business within the territorial jurisdiction of the Nation was last surrendered, engaged in any activity within the territorial jurisdiction of the Nation, except as set forth in paragraph (b) of section 1301 (Authorization of foreign corporations), or in lieu thereof the consent of the Nation to the filing of the application, which consent shall be attached thereto.
(b) Attached to the application for authority shall be a certificate by an authorized officer of the jurisdiction of its incorporation that the foreign corporation is an existing corporation. If such certificate is in a foreign language, a translation thereof under oath of the translator shall be attached thereto.
1305. APPLICATION FOR AUTHORITY; EFFECT
Upon filing by the Nation Clerk of the application for authority the foreign corporation shall be authorized to do within the territorial jurisdiction of the Nation any business set forth in the application. Such authority shall continue so long as it retains its authority to do such business within the territorial jurisdiction of the Nation has not been surrendered, suspended or annulled in accordance with law.
1306. POWERS OF AUTHORIZED FOREIGN CORPORATIONS
An authorized foreign corporation shall have such powers as are permitted by the laws of the jurisdiction of its incorporation but no greater powers than that of a domestic corporation formed for the business set forth in the application for authority.
1307. TENURE OF REAL PROPERTY
A foreign corporation may acquire and hold real property in the Nation in furtherance of its corporate purposes and may convey the same by deed or otherwise in the same manner as a domestic corporation.
1308. AMENDMENTS OR CHANGES
(a) An authorized foreign corporation may amend or change its application for authority from time to times in any and as many of the following respects as may be desire if the amendments contain only such provisions as might be lawfully contained in an application for authority at the time of making such amendment:
(1) To change its corporate name if such change has been effected under the laws of the jurisdiction of its incorporation.
(2) To change its fictitious name filed pursuant to paragraph (d) of section 1301 of this chapter, to another fictitious name, if its true corporate name is not available for use within the territorial jurisdiction of the Nation.
(3) To delete its fictitious name filed pursuant to paragraph (d) of section 1301 of this chapter, if its true corporate name is now available for use in the Nation.
(4) To adopt a fictitious name when the corporate name is changed and is not available in the Nation.
(5) To enlarge, limit or otherwise change the business which it proposes to do in the Nation.
(6) To change the location of its office in the Nation.
(7) To specify or change the post office address to which the Nation Clerk shall mail a copy of any process against it served upon him.
(8) To make, revoke or change the designation of a registered agent or to specify or change his address.
(9) To change the jurisdiction of its incorporation if such change has been effected under laws permitting such a change to occur.
1309. CERTIFICATE OF AMENDMENT; CONTENTS, EFFECT
(a) to accomplish such amendment a certificate, entitled "Certificate of amendment of application for authority of .......... (name of corporation) under section 1309 of the Business Corporation Code", shall be signed and verified by an officer of or attorney-in-fact for the foreign corporation and delivered to the Nation Clerk. It shall set forth:
(1) The name of the foreign corporation as it appears on the index of names of existing domestic and authorized foreign corporations of any type or kind in the Nation Clerk, division of corporations and the fictitious name the corporation has agreed to use in the Nation pursuant to paragraph (d) of section 1301 of this chapter.
(2) The jurisdiction of its incorporation. If the jurisdiction of its incorporation has been changed, a statement that the change of jurisdiction has been effected under laws permitting such a change to occur, citing such laws, and including the date the change in jurisdiction was so effected; and a statement that annexed to this certificate of amendment of application for authority is the certificate required by paragraph (b) of this section.
(3) The date it was authorized to do business in the Nation.
(4) Each amendment effected thereby.
(5) If the true corporate name of the foreign corporation is to be changed, a statement that the change of name has been effected under the laws of the jurisdiction of its incorporation and the date the change was so effected.
(6) If the business it proposes to do in the Nation is to be enlarged, limited or otherwise changed, a statement that it is authorized to do in the jurisdiction of its incorporation the business which it proposes to do in the Nation.
(b) If the jurisdiction of its incorporation has been changed, annexed to the certificate of amendment of application for authority shall be a certificate by an authorized officer of the new jurisdiction of its incorporation that such foreign corporation is an existing corporation domiciled in that jurisdiction. If the annexed certificate by an authorized officer is not in the Oneida or English language, there shall be attached thereto a translation thereof in the Oneida or English language under oath of the translator.
(c) If an authorized foreign corporation has changed its name in the jurisdiction of its incorporation, or has changed its jurisdiction of incorporation, it shall deliver to the secretary of state within twenty days after the change became effective in that jurisdiction a certificate of amendment under paragraph (a) of this section. Upon its failure to deliver such certificate, its authority to do business within the territorial jurisdiction of the Nation shall upon the expiration of said twenty days be suspended. The filing by the Nation Clerk of a certificate of amendment changing the corporate name or jurisdiction of incorporation within one hundred twenty days after the effective date of the change of name in the jurisdiction of its incorporation or of the change of jurisdiction of its incorporation effected under laws permitting such a change to occur shall annul the suspension and its authority to do business within the territorial jurisdiction of the Nation shall be restored and continue as if no suspension had occurred. The Nation Clerk shall continue as agent of the foreign corporation upon whom process against the foreign corporation may be served in the manner set forth in paragraph (b) of section 306 (Service of process), in any action or special proceeding based upon any liability or obligation incurred by it within the territorial jurisdiction of the Nation before the filing of the certificate of amendment changing the corporate name or changing the jurisdiction of incorporation.
1309-A. CERTIFICATE OF CHANGE; CONTENTS
(a) In lieu of a certificate of amendment, an authorized foreign corporation, upon compliance with this section, may make any or all of the following changes in its application for authority:
(1) To change the location of its office in the Nation.
(2) To specify or change the post office address to which the Nation Clerk shall mail a copy of any process against it served upon him.
(3) To make, revoke or change the designation of a registered agent or specify or change his address.
(b) To accomplish such change, a certificate entitled "Certificate of change of application for authority of ...... (name of corporation) under section 1309-A of the Business Corporation Code" shall be signed and verified by an officer or attorney-in-fact for the foreign corporation and delivered to the Nation Clerk.
It shall set forth:
(1) The name of the foreign corporation as it appears on the index of names of existing domestic and authorized foreign corporations of any type or kind in the Nation Clerk, division of corporations and the fictitious name the corporation has agreed to use within the territorial jurisdiction of the Nation pursuant to paragraph (d) of section 1301 of this chapter.
(2) The jurisdiction of its incorporation.
(3) The date it was authorized to do business in the Nation.
(4) Each change effected thereby.
(c) A certificate of change of application for authority which changes only the post address to which the Nation Clerk shall mail a copy of any process against an authorized foreign corporation served upon him or which changes the address of its registered agent, provided such address is the address of a person, partnership or other corporation whose address, as agent, is the address to be changed or who has been designated as registered agent for such authorized foreign corporation, may be signed, verified and delivered to the Nation Clerk by such agent. The certificate of change of application for authority shall set forth the statements required under subparagraphs (a)(1), (2), (3) and (4) of this section; that a notice of the proposed change was mailed by the party signing the certificate to the authorized foreign corporation not less than thirty days prior to the date of delivery to the secretary and that such corporation has not objected thereto; and that the party signing the certificate is the agent of such foreign corporation to whose address the Nation Clerk is required to mail copies of process or the registered agent, if such be the case. A certificate signed, verified and delivered under this paragraph shall not be deemed to effect a changed of location of the office of the corporation in whose behalf such certificate is filed.
1310. SURRENDER OF AUTHORITY
(a) An authorized foreign corporation may surrender its authority. A certificate, entitled "Certificate of surrender of authority of .......... (name of corporation) under section 1310 of the Business Corporation Code'', shall be signed, verified by an officer of or attorney-in-fact for the foreign corporation or by a trustee, receiver or other liquidator of such corporation, and delivered to the Nation Clerk. It shall set forth:
(1) The name of the foreign corporation as it appears on the index of names of existing domestic and authorized foreign corporations of any type or kind in the Nation Clerk, division of corporations or, the fictitious name the corporation has agreed to use in the Nation pursuant to paragraph (d) of section 1301 of this chapter.
(2) The jurisdiction of its incorporation.
(3) The date it was authorized to do business in the Nation.
(4) That it surrenders its authority to do business within the territorial jurisdiction of the Nation.
(5) That it revokes the authority of its registered agent, if any, previously designated and consents that process against it in any action or special proceeding based upon any liability or obligation incurred by it within the Nation before the filing of the certificate of surrender may be served on the Nation Clerk after the filing thereof in the manner set forth in paragraph (b) of section 306 (Service of process).
(6) A post office address within or without the Nation to which the Nation Clerk shall mail a copy of any process against it served upon him.
(b) The Nation Clerk shall not file such certificate unless the consent of the Oneida Indian Nation to the surrender of authority is attached thereto.
(c) The authority of the foreign corporation to do business in the Nation shall terminate on the filing by the Nation Clerk of the certificate of surrender of authority.
(d) The post office specified under subparagraph (a)(6) may be changed. A certificate, entitled "Certificate of amendment of certificate of surrender of authority of .......(name of corporation) under section 1310 of the Business Corporation Code", shall be signed, verified as provided in paragraph (a) and delivered to the Nation Clerk. It shall set forth:
(1) The name of the foreign corporation.
(2) The jurisdiction of its incorporation.
(3) The date its certificate of surrender of authority was filed by the Nation Clerk.
(4) The changed post offices address to which the Nation Clerk shall mail a copy of any process against it served upon him.
1311. TERMINATION OF EXISTENCE
When an authorized foreign corporation is dissolved, or its authority or existence is otherwise terminated or canceled in the jurisdiction of its incorporation or when such foreign corporations is merged into or consolidated with another foreign corporation, a certificate of the Nation Clerk, or official performing the equivalent function as to corporate records, of the jurisdiction of incorporation if such foreign corporation attesting to the occurrence of any such event or a certified copy of an order or decree of a court of such jurisdiction directing the dissolution of such foreign corporation, the termination of its existence or the cancellation of its authority shall be delivered to the Nation Clerk. The filing of the certificate, order or decree shall have the same effect as the filing of a certificate of surrender of authority under section 1310 (Surrender of authority). The Nation Clerk shall continue as agent of the foreign corporation upon whom process against it may be served in the manner set forth in paragraph (b) of section 306 (Service of process), in any action or special proceeding based upon any liability or obligation incurred by the foreign corporation within the territorial jurisdiction of the Nation prior to the filing of such certificate, order of decree and he shall promptly cause a copy of any such process to be mailed by registered mail, return receipt requested, to such foreign corporation at the post office address on file in his office specified for such purpose. The post office address may be changed by signing, verifying and delivering to the Nation Clerk a certificate of change setting forth the statements required under section 1309-A (Certificate of change; contents) to effect a change in the post office address under subparagraph (a)(4) of section 1308 (Amendments or changes).
1312. ACTIONS OR SPECIAL PROCEEDINGS BY UNAUTHORIZED -FOREIGN CORPORATIONS
(a) A foreign corporation doing business within the territorial jurisdiction of the Nation without authority shall not maintain any action or special proceeding in the Nation unless and until such corporation has been authorized to do business in the Nation and it has paid to the Nation all fees and taxes imposed under the law, as well as penalties and interest charges related thereto, accrued against the corporation. This prohibition shall apply to any successor in interest of such foreign corporation.
(b) The failure of a foreign corporation to obtain authority to do business in the Nation shall not impair the validity of any contract or act of the foreign corporation or the right of any other party to the contract to maintain any action or special proceeding thereon, and shall not prevent the foreign corporation from defending any action or special proceeding in the Nation.
1313. ACTIONS OR SPECIAL PROCEEDING BY FOREIGN CORPORATIONS
An action or special proceeding may be maintained by a foreign corporation, in like manner and subject to the same limitations, as an action or special proceeding brought by a domestic corporation, except as otherwise prescribed by statute.
1314. ACTIONS OR SPECIAL PROCEEDINGS AGAINST FOREIGN CORPORATIONS
(a) An action or special proceeding against a foreign corporation may be maintained by a resident of the Nation or by a domestic corporation of any type or kind for any cause of action.
(b) Except as otherwise provided in this article, an action or special proceeding against a foreign corporation may be maintained by another foreign corporation of any type or kind or by a non-resident in the following cases only:
(1) Where it is brought to recover damages for the breach of a contract made or to be performed within the territorial jurisdiction of the Nation, or relating to property situated within territorial jurisdiction of the Nation at the time of the making of the contract.
(2) Where the subject matter of the litigation is situated within the territorial jurisdiction of the Nation.
(3) Where the cause of action arose within the Nation, except where the object of the action or special proceeding is to affect the title of real property situated outside the territorial jurisdiction of the Nation.
(4) Where, in any case not included in the preceding subparagraphs, a non-domiciliary would be subject to the personal jurisdiction of the Nation court under section 302 of the civil practice law and rules.
(5) Where the defendant is a foreign corporation doing business or authorized to do business in the Nation.
1315. RECORD OF SHAREHOLDERS
(a) Any resident of the Nation who shall have been a shareholder of record, for at least six months immediately preceding his demand, of a foreign corporation doing business within the territorial jurisdiction of the Nation, or any resident of the Nation holding, or thereunto authorized in writing by the holders of, at least five percent of any class of the outstanding shares, upon at least five days' written demand may require such foreign corporation to produce a record of its shareholders setting forth the names and addresses of all shareholders, the number and class of shares held by each and the dates when they respectively became the owners of record thereof and shall have the right to examine in person or by agent or attorney at the office of the foreign corporation in the Nation or at the office of its transfer agent or registrar in the Nation in which the foreign corporation is doing business as may be designated by the foreign corporation, during the usual business hours, the record of shareholders or an exact copy thereof certified as correct by the corporate officer or agent responsible for keeping or producing such record and to make extracts therefrom. Resident holders of voting trust certificates representing shares of the foreign corporation shall for the purpose of this section be regarded as shareholders.
(b) An examination authorized by paragraph (a) may be denied to such shareholder or other person upon his refusal to furnish to the foreign corporation or its transfer agent or registrar an affidavit that such inspection is not desired for a purpose which is in the interest of a business or object other than the business of the foreign corporation and that such shareholder or other person has not within five years sold or offered for sale any list of shareholders of any corporation of any type or kind, whether or not formed under the laws of the Nation, or aided or abetted any person in procuring any such record of shareholders for any such purpose.
(c) Upon refusal by the foreign corporation or by an officer or agent of the foreign corporation to produce for examination or to permit an examination of the record of shareholders as herein provided, the person making the demand for production and examination may apply to the Oneida Indian Nation upon such notice as the court may direct, for an order directing the foreign corporation, its officer or agent, to show cause why an order should not be granted directing such production and permitting such examination by the applicant. Upon the return day of the order to show cause, the court shall hear the parties summarily, by affidavit or otherwise, and if it appears that the applicant is qualified and entitled to such examination, the court shall grant an order compelling such production for examination and awarding such further relief as to the court may seem just and proper.
(d) Nothing herein contained shall impair the court to compel the production for examination of the books of a foreign corporation. The record of shareholders specified in paragraph (a) shall be prima facie evidence of the facts therein stated in favor of the plaintiff in any action or special proceeding against such foreign corporation or any of its officer, directors or shareholders.
1316. VOTING TRUST RECORDS
(a) A voting trustee, appointed under a voting trust agreement to vote the shares of a foreign corporation doing business in the Nation, who either has an office in the Nation or has designated a transfer agent within the Nation, shall produce for examination and permit to be examined in the Nation, at the office of the foreign corporation or at his office or at the office of such transfer agent, a record of voting trust certificate holders setting forth their names, alphabetically arranged, and addresses, the number and class of shares represented by the certificates held by them respectively and the dates when they respectively became the owners thereof, upon the written demand of any resident of the Nation who shall have been a voting trust certificate holder or a shareholder of the foreign corporation for at least six months immediately preceding his demand, or of any resident of this state holding, or thereunto authorized in Writing by the holders of, at least five percent of any class of the outstanding shares of such foreign corporation, either directly or as holders of voting trust certificates for such shares, subject to the same terms and conditions set forth with respect to the right of examination of the record of shareholders of the foreign corporation in section 1315 (Record of shareholders).
(b) The voting trustee shall deposit an exact copy of the voting trust agreement with the foreign corporation at its office in the Nation or at the office of the transfer agent in the Nation.
(c) The copy of the voting trust agreement shall be subject to the same right of examination by voting trust certificate holders and by shareholders of the foreign corporation as is the record of shareholders of a corporation under section 624 (Books and records; right of inspection, prima facie evidence).
(d) Upon refusal by a voting trustee or his transfer agent to produce for examination or to permit an examination of the record of voting trust certificate holders or of such copy of the voting trust agreement as herein provided, the person making the demand may apply to the Nation court, upon such notice as the court may direct, for an order directing the voting trustee or his transfer agent to show cause why an order should not be granted directing such production and permitting such examination. Upon the return day of the order to show cause, the court shall hear the parties summarily, by affidavit or otherwise, and if it appears that the applicant is entitled to such examination, the court shall grant an order compelling such production for examination and awarding such further relief as to the court may seem just and proper.
(e) Where the voting trust agreement shall vest in the voting trustee the right to vote the shares of a foreign corporation which has an office in the Nation for the doing of business where the principal business operation of which is conducted within the Nation or the greater part of its property is located within the Nation, and the voting trust agreement is an express trust created under the laws of the Nation, Oneida Nation Court upon the petition of a voting trust certificate holder, may exercise such power over the trustee named therein.
1317. LIABILITIES OF DIRECTORS AND OFFICERS OF FOREIGN CORPORATIONS
(a) Except as otherwise provided in this chapter, the directors and officers of a foreign corporation doing business within the territorial jurisdiction of the Nation are subject, to the same extent as directors and officers of a domestic corporation, to the provisions of:
(1) Section 719 (Liability of directors in certain cases) except subparagraph (a)(3) thereof, and
(2) Section 720 (Action against directors and officers for misconduct.)
(b) Any liability imposed by paragraph (a) may be enforced in, and such relief granted by, the Nation court, in the same manner as in the case of a domestic corporation.
1318. LIABILITY OF FOREIGN CORPORATIONS FOR FAILURE TO DISCLOSE REQUIRED
INFORMATION
(a) A foreign corporation doing business in the Nation shall, in the same manner as a domestic corporation, disclose to its shareholders of record who are residents of the Nation the information required under paragraph (c) of section 510 (Dividends or other distributions in cash or property), paragraphs (f) and (g) of section 511 (Share distributions and changes), paragraph (d) of section 515 (Reacquired shares), paragraph (c) of section 516 (Reduction of stated capital in certain cases), subparagraph (a)(4) of section 517 (Special provisions relative to surplus and reserves) or paragraph (f) of section 519 (Convertible shares and bonds), and shall be liable as provided in section 520 (Liability for failure to disclose required information) for failure to comply in good faith with these requirements.
(b) For the purposes of this section, an authorized foreign corporation may by board action determine the amount of its earned surplus before the declaration of its first dividend after either (1) the effective date of this chapter or (2) the date of filing of its application for authority under this chapter, whichever is later; and such determination if made in good faith shall be conclusive. Thereafter such foreign corporation may determine the amount or availability of its earned surplus in the same manner as a domestic corporation.
1319. APPLICABILITY OF OTHER PROVISIONS
(a) In application to 1 (Short title; definitions; application; certificates; miscellaneous) and 3 (Corporate name and service of process) and the other sections of Chapter 13, the following provisions, to the extent provided therein, shall apply to a foreign corporation doing business within the territorial jurisdiction of the Nation, its directors, officers and shareholders:
(1) Section 623 (Procedure to enforce shareholder's right to receive payment for shares).
(2) Section 626 (Shareholders' derivative action brought in the right of the corporation to procure a judgment in its favor).
(3) Section 627 (Security for expenses in shareholders’ derivative action brought in the right of the corporation to procure a judgment in its favor).
(4) Section 721 (Exclusivity of statutory provisions for indemnification of directors and officers) through 727 (Insurance for indemnification of directors and officers), inclusive.
(5) Section 808 (Reorganization under act of congress).
(6) Section 907 (Merger or consolidation of domestic and foreign corporations).
1320. EXEMPTION FROM CERTAIN PROVISIONS
(a) Notwithstanding any other provision of this chapter, a foreign corporation doing business within the territorial jurisdiction of the Nation which is authorized under this chapter, its directors, officers and shareholders, shall be exempt from the provisions of paragraph (e) of section 1316 (Voting trust records), subparagraph (a)(1) of section 1317 (Liabilities of directors and officers of foreign corporations), section 1318 (Liability of foreign corporations for failure to disclose required information) and subparagraph (a)(4) of section 1319 (Applicability of other provisions) if when such provision would otherwise apply:
(1) Shares of such corporation were listed on a national securities exchange, or
(2) Less than one-half of the total of its business income for the preceding three fiscal years, or such portion thereof as the foreign corporation was in existence, was allocable to the Nation for franchise tax purposes under any tax law.
1/2004
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