CHAPTER 38. AMENDMENT OF ARTICLES OF INCORPORATION
IC 23-1-38
Chapter 38. Amendment of Articles of Incorporation
IC 23-1-38-1
Required and permitted changes; vested property rights
Sec. 1. (a) A corporation may amend its articles of incorporationat any time to add or change a provision that is required or permittedto be in the articles of incorporation or to delete a provision notrequired to be in the articles of incorporation. Whether a provisionis required or permitted to be in the articles of incorporation isdetermined as of the effective date of the amendment.
(b) A shareholder of the corporation does not have a vestedproperty right resulting from any provision in the articles ofincorporation, or authorized to be in the bylaws by this article or thearticles of incorporation including provisions relating tomanagement, control, capital structure, dividend entitlement, orpurpose or duration of the corporation.
As added by P.L.149-1986, SEC.22.
IC 23-1-38-2
Amendments by board of directors without shareholder action
Sec. 2. Unless the articles of incorporation provide otherwise, acorporation's board of directors may adopt one (1) or moreamendments to the corporation's articles of incorporation withoutshareholder action to:
(1) extend the duration of the corporation if it was incorporatedat a time when limited duration was required by law;
(2) delete the names and addresses of the initial directors;
(3) delete the name and address of the initial registered agent orregistered office, if a statement of change is on file with thesecretary of state;
(4) change each issued and unissued authorized share of anoutstanding class into a greater number of whole shares or alesser number of whole shares and fractional shares if thecorporation has only shares of that class outstanding;
(5) change the corporate name by substituting the word"corporation", "incorporated", "company", "limited", or theabbreviation "corp.", "inc.", "co.", or "ltd.", for a similar wordor abbreviation in the name, or by adding, deleting, or changinga geographical attribution for the name;
(6) reduce the number of authorized shares solely as the resultof a cancellation of treasury shares; or
(7) make any other change expressly permitted by this article tobe made without shareholder action.
As added by P.L.149-1986, SEC.22. Amended by P.L.107-1987,SEC.15.
IC 23-1-38-3
Proposal of amendment for submission to shareholders; procedurefor adoption Sec. 3. (a) A corporation's board of directors may propose one (1)or more amendments to the articles of incorporation for submissionto the shareholders.
(b) For the amendment to be adopted:
(1) the board of directors must recommend the amendment tothe shareholders unless the board of directors determines thatbecause of conflict of interest or other special circumstances itshould make no recommendation and communicates the basisfor its determination to the shareholders with the amendment;and
(2) the shareholders entitled to vote on the amendment mustapprove the amendment as provided in subsection (e).
(c) The board of directors may condition its submission of theproposed amendment on any basis.
(d) The corporation shall notify each shareholder, whether or notentitled to vote, of the proposed shareholders' meeting in accordancewith IC 23-1-29-5. The notice of meeting must also state that thepurpose, or one (1) of the purposes, of the meeting is to consider theproposed amendment and must contain or be accompanied by a copyor summary of the amendment.
(e) Unless this article, the articles of incorporation, or the boardof directors (acting under subsection (c)) require a greater vote or avote by voting groups, the amendment to be adopted must beapproved by:
(1) a majority of the votes entitled to be cast on the amendmentby any voting group with respect to which the amendmentwould create dissenters' rights; and
(2) the votes required by IC 23-1-30-6 and IC 23-1-30-7 byevery other voting group entitled to vote on the amendment.
As added by P.L.149-1986, SEC.22.
IC 23-1-38-4
Voting by shareholders
Sec. 4. (a) The holders of the outstanding shares of a class areentitled to vote as a separate voting group (if shareholder voting isotherwise required by this article) on a proposed amendment if theamendment would:
(1) increase or decrease the aggregate number of authorizedshares of the class;
(2) effect an exchange or reclassification of all or part of theshares of the class into shares of another class;
(3) effect an exchange or reclassification, or create the right ofexchange, of all or part of the shares of another class into sharesof the class;
(4) change the designation, rights, preferences, or limitations ofall or part of the shares of the class;
(5) change the shares of all or part of the class into a differentnumber of shares of the same class;
(6) create a new class of shares having rights or preferenceswith respect to distributions or to dissolution that are prior,
superior, or substantially equal to the shares of the class;
(7) increase the rights, preferences, or number of authorizedshares of any class that, after giving effect to the amendment,have rights or preferences with respect to distributions or todissolution that are prior, superior, or substantially equal to theshares of the class;
(8) limit or deny an existing preemptive right of all or part ofthe shares of the class; or
(9) cancel or otherwise affect rights to distributions ordividends that have accumulated but not yet been declared onall or part of the shares of the class.
(b) If a proposed amendment would affect a series of a class ofshares in one (1) or more of the ways described in subsection (a), theshares of that series are entitled to vote as a separate voting group onthe proposed amendment.
(c) If a proposed amendment that entitles two (2) or more seriesof shares to vote as separate voting groups under this section wouldaffect those two (2) or more series in the same or a substantiallysimilar way, the shares of all the series so affected must vote togetheras a single voting group on the proposed amendment.
(d) A class or series of shares is entitled to the voting rightsgranted by this section although the articles of incorporation providethat the shares are nonvoting shares.
As added by P.L.149-1986, SEC.22.
IC 23-1-38-5
Corporation not yet issuing shares; adoption of amendments byboard of directors
Sec. 5. If a corporation has not yet issued shares, its board ofdirectors (or if a board of directors has not been selected, then theincorporators) may adopt one (1) or more amendments to thecorporation's articles of incorporation.
As added by P.L.149-1986, SEC.22.
IC 23-1-38-6
Filing articles of amendment
Sec. 6. (a) A corporation amending its articles of incorporationshall deliver to the secretary of state for filing articles of amendmentsetting forth:
(1) the name of the corporation;
(2) the text of each amendment adopted;
(3) if an amendment provides for an exchange, reclassification,or cancellation of issued shares, provisions for implementingthe amendment if not contained in the amendment itself;
(4) the date of each amendment's adoption;
(5) if an amendment was adopted by the incorporators or boardof directors without shareholder action, a statement to thateffect and that shareholder action was not required;
(6) if an amendment was approved by the shareholders:
(A) the designation, number of outstanding shares, number
of votes entitled to be cast by each voting group entitled tovote separately on the amendment, and number of votes ofeach voting group represented at the meeting;
(B) either the total number of votes cast for and against theamendment by each voting group entitled to vote separatelyon the amendment or the total number of votes cast for theamendment by each voting group and a statement that thenumber cast for the amendment by each voting group wassufficient for approval by that voting group.
(b) If a corporation amends its articles of incorporation to changeits corporate name, it may, after the amendment has becomeeffective, file for record with the county recorder of each county inIndiana in which it has real property at the time the amendmentbecomes effective a file-stamped copy of the articles of amendment.The validity of a change in name is not affected by a corporation'sfailure to record the articles of amendment.
As added by P.L.149-1986, SEC.22.
IC 23-1-38-7
Restated articles of incorporation
Sec. 7. (a) A corporation's board of directors or, if the board ofdirectors has not been selected, the incorporators may restate itsarticles of incorporation at any time with or without shareholderaction.
(b) The restatement may include one (1) or more amendments tothe articles. If the restatement includes an amendment requiringshareholder approval, it must be adopted as provided in section 3 ofthis chapter.
(c) If the board of directors submits a restatement for shareholderaction, the corporation shall notify each shareholder, whether or notentitled to vote, of the proposed shareholders' meeting in accordancewith IC 23-1-29-5. The notice must also state that the purpose, or one(1) of the purposes, of the meeting is to consider the proposedrestatement and must contain or be accompanied by a copy of therestatement that identifies any amendment or other change it wouldmake in the articles.
(d) A corporation restating its articles of incorporation shalldeliver to the secretary of state for filing articles of restatementsetting forth the name of the corporation and the text of the restatedarticles of incorporation together with a certificate setting forth:
(1) whether the restatement contains an amendment to thearticles requiring shareholder approval and, if it does not, thatthe board of directors adopted the restatement; or
(2) if the restatement contains an amendment to the articlesrequiring shareholder approval, the information required bysection 6 of this chapter.
(e) Duly adopted restated articles of incorporation supersede theoriginal articles of incorporation and all amendments to them.
(f) The secretary of state may certify restated articles ofincorporation, as the articles of incorporation currently in effect,
without including the certificate information required by subsection(d).
As added by P.L.149-1986, SEC.22.
IC 23-1-38-8
Court-ordered reorganization; articles of amendment; dissenters'rights; application of section
Sec. 8. (a) A corporation's articles of incorporation may beamended without action by the board of directors or shareholders tocarry out a plan of reorganization ordered or decreed by a court ofcompetent jurisdiction under federal statute if the articles ofincorporation after amendment contain only provisions required orpermitted by IC 23-1-21-2.
(b) The individual or individuals designated by the court shalldeliver to the secretary of state for filing articles of amendmentsetting forth:
(1) the name of the corporation;
(2) the text of each amendment approved by the court;
(3) the date of the court's order or decree approving the articlesof amendment;
(4) the title of the reorganization proceeding in which the orderor decree was entered; and
(5) a statement that the court had jurisdiction of the proceedingunder federal statute.
(c) Shareholders of a corporation undergoing reorganization donot have dissenters' rights except as provided in the reorganizationplan.
(d) This section does not apply after entry of a final decree in thereorganization proceeding even though the court retains jurisdictionof the proceeding for limited purposes unrelated to consummation ofthe reorganization plan.
As added by P.L.149-1986, SEC.22.
IC 23-1-38-9
Effect of amendment
Sec. 9. An amendment to articles of incorporation does not affecta cause of action existing against or in favor of the corporation, aproceeding to which the corporation is a party, or the preexistingrights of persons other than shareholders of the corporation. Anamendment changing a corporation's name does not abate aproceeding brought by or against the corporation in its former name.
As added by P.L.149-1986, SEC.22.