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 incorporation
at any time to add or change a provision that is required or permitted
to be in the articles of incorporation or to delete a provision not
required to be in the articles of incorporation. Whether a provision
is required or permitted to be in the articles of incorporation is
determined as of the effective date of the amendment.
(b) A shareholder of the corporation does not have a vested
property right resulting from any provision in the articles of
incorporation, or authorized to be in the bylaws by this article or the
articles of incorporation including provisions relating to
management, control, capital structure, dividend entitlement, or
purpose 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, a
corporation's board of directors may adopt one (1) or more
amendments to the corporation's articles of incorporation without
shareholder action to:
(1) extend the duration of the corporation if it was incorporated
at 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 or
registered office, if a statement of change is on file with the
secretary of state;
(4) change each issued and unissued authorized share of an
outstanding class into a greater number of whole shares or a
lesser number of whole shares and fractional shares if the
corporation has only shares of that class outstanding;
(5) change the corporate name by substituting the word
"corporation", "incorporated", "company", "limited", or the
abbreviation "corp.", "inc.", "co.", or "ltd.", for a similar word
or abbreviation in the name, or by adding, deleting, or changing
a geographical attribution for the name;
(6) reduce the number of authorized shares solely as the result
of a cancellation of treasury shares; or
(7) make any other change expressly permitted by this article to
be 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; procedure
for adoption
Sec. 3. (a) A corporation's board of directors may propose one (1)
or more amendments to the articles of incorporation for submission
to the shareholders.
(b) For the amendment to be adopted:
(1) the board of directors must recommend the amendment to
the shareholders unless the board of directors determines that
because of conflict of interest or other special circumstances it
should make no recommendation and communicates the basis
for its determination to the shareholders with the amendment;
and
(2) the shareholders entitled to vote on the amendment must
approve the amendment as provided in subsection (e).
(c) The board of directors may condition its submission of the
proposed amendment on any basis.
(d) The corporation shall notify each shareholder, whether or not
entitled to vote, of the proposed shareholders' meeting in accordance
with IC 23-1-29-5. The notice of meeting must also state that the
purpose, or one (1) of the purposes, of the meeting is to consider the
proposed amendment and must contain or be accompanied by a copy
or summary of the amendment.
(e) Unless this article, the articles of incorporation, or the board
of directors (acting under subsection (c)) require a greater vote or a
vote by voting groups, the amendment to be adopted must be
approved by:
(1) a majority of the votes entitled to be cast on the amendment
by any voting group with respect to which the amendment
would create dissenters' rights; and
(2) the votes required by IC 23-1-30-6 and IC 23-1-30-7 by
every 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 are
entitled to vote as a separate voting group (if shareholder voting is
otherwise required by this article) on a proposed amendment if the
amendment would:
(1) increase or decrease the aggregate number of authorized
shares of the class;
(2) effect an exchange or reclassification of all or part of the
shares of the class into shares of another class;
(3) effect an exchange or reclassification, or create the right of
exchange, of all or part of the shares of another class into shares
of the class;
(4) change the designation, rights, preferences, or limitations of
all or part of the shares of the class;
(5) change the shares of all or part of the class into a different
number of shares of the same class;
(6) create a new class of shares having rights or preferences
with 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 authorized
shares of any class that, after giving effect to the amendment,
have rights or preferences with respect to distributions or to
dissolution that are prior, superior, or substantially equal to the
shares of the class;
(8) limit or deny an existing preemptive right of all or part of
the shares of the class; or
(9) cancel or otherwise affect rights to distributions or
dividends that have accumulated but not yet been declared on
all or part of the shares of the class.
(b) If a proposed amendment would affect a series of a class of
shares in one (1) or more of the ways described in subsection (a), the
shares of that series are entitled to vote as a separate voting group on
the proposed amendment.
(c) If a proposed amendment that entitles two (2) or more series
of shares to vote as separate voting groups under this section would
affect those two (2) or more series in the same or a substantially
similar way, the shares of all the series so affected must vote together
as a single voting group on the proposed amendment.
(d) A class or series of shares is entitled to the voting rights
granted by this section although the articles of incorporation provide
that 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 by
board of directors
Sec. 5. If a corporation has not yet issued shares, its board of
directors (or if a board of directors has not been selected, then the
incorporators) may adopt one (1) or more amendments to the
corporation'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 incorporation
shall deliver to the secretary of state for filing articles of amendment
setting 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 implementing
the 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 board
of directors without shareholder action, a statement to that
effect 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 to
vote separately on the amendment, and number of votes of
each voting group represented at the meeting;
(B) either the total number of votes cast for and against the
amendment by each voting group entitled to vote separately
on the amendment or the total number of votes cast for the
amendment by each voting group and a statement that the
number cast for the amendment by each voting group was
sufficient for approval by that voting group.
(b) If a corporation amends its articles of incorporation to change
its corporate name, it may, after the amendment has become
effective, file for record with the county recorder of each county in
Indiana in which it has real property at the time the amendment
becomes effective a file-stamped copy of the articles of amendment.
The validity of a change in name is not affected by a corporation's
failure 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 of
directors has not been selected, the incorporators may restate its
articles of incorporation at any time with or without shareholder
action.
(b) The restatement may include one (1) or more amendments to
the articles. If the restatement includes an amendment requiring
shareholder approval, it must be adopted as provided in section 3 of
this chapter.
(c) If the board of directors submits a restatement for shareholder
action, the corporation shall notify each shareholder, whether or not
entitled to vote, of the proposed shareholders' meeting in accordance
with 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 proposed
restatement and must contain or be accompanied by a copy of the
restatement that identifies any amendment or other change it would
make in the articles.
(d) A corporation restating its articles of incorporation shall
deliver to the secretary of state for filing articles of restatement
setting forth the name of the corporation and the text of the restated
articles of incorporation together with a certificate setting forth:
(1) whether the restatement contains an amendment to the
articles requiring shareholder approval and, if it does not, that
the board of directors adopted the restatement; or
(2) if the restatement contains an amendment to the articles
requiring shareholder approval, the information required by
section 6 of this chapter.
(e) Duly adopted restated articles of incorporation supersede the
original articles of incorporation and all amendments to them.
(f) The secretary of state may certify restated articles of
incorporation, 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 be
amended without action by the board of directors or shareholders to
carry out a plan of reorganization ordered or decreed by a court of
competent jurisdiction under federal statute if the articles of
incorporation after amendment contain only provisions required or
permitted by IC 23-1-21-2.
(b) The individual or individuals designated by the court shall
deliver to the secretary of state for filing articles of amendment
setting 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 articles
of amendment;
(4) the title of the reorganization proceeding in which the order
or decree was entered; and
(5) a statement that the court had jurisdiction of the proceeding
under federal statute.
(c) Shareholders of a corporation undergoing reorganization do
not have dissenters' rights except as provided in the reorganization
plan.
(d) This section does not apply after entry of a final decree in the
reorganization proceeding even though the court retains jurisdiction
of the proceeding for limited purposes unrelated to consummation of
the 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 affect
a cause of action existing against or in favor of the corporation, a
proceeding to which the corporation is a party, or the preexisting
rights of persons other than shareholders of the corporation. An
amendment changing a corporation's name does not abate a
proceeding brought by or against the corporation in its former name.
As added by P.L.149-1986, SEC.22.