CHAPTER 26. FOREIGN CORPORATIONS
IC 23-17-26
Chapter 26. Foreign Corporations
IC 23-17-26-1
Necessity of certificate of authority; transacting business
Sec. 1. (a) A foreign corporation may not transact business in
Indiana until the corporation obtains a certificate of authority from
the secretary of state.
(b) The following activities do not constitute transacting business
within the meaning of subsection (a):
(1) Maintaining, defending, or settling a proceeding.
(2) Holding meetings of the board of directors or members or
carrying on other activities concerning internal corporate
affairs.
(3) Maintaining bank accounts.
(4) Maintaining offices or agencies for the transfer, exchange,
and registration of memberships or securities or maintaining
trustees or depositaries with respect to the securities.
(5) Selling through independent contractors.
(6) Soliciting or obtaining orders, by mail or through employees
or agents, if the orders require acceptance outside of Indiana
before the orders become contracts.
(7) Making loans or otherwise creating or acquiring
indebtedness, mortgages, and security interests in real or
personal property.
(8) Securing or collecting debts or enforcing mortgages and
security interests in property securing the debts.
(9) Owning real or personal property.
(10) Conducting an isolated transaction that is completed within
thirty (30) days and that is not in the course of repeated
transactions of a similar nature.
(11) Transacting business in interstate commerce.
(12) Soliciting funds if otherwise authorized by Indiana law.
As added by P.L.179-1991, SEC.1.
IC 23-17-26-2
Transacting business without certificate of authority
Sec. 2. (a) Except as provided in subsection (e), a foreign
corporation transacting business in Indiana without a certificate of
authority may not maintain a proceeding in an Indiana court until the
foreign corporation obtains a certificate of authority.
(b) Except as provided in subsection (e), the successor to a foreign
corporation that transacted business in Indiana without a certificate
of authority and the assignee of a cause of action arising out of that
business may not maintain a proceeding based on that cause of action
in an Indiana court until the foreign corporation or the foreign
corporation's successor obtains a certificate of authority.
(c) A court may stay a proceeding commenced by a foreign
corporation, a foreign corporation's successor, or an assignee until
the court determines whether the foreign corporation or the foreign
corporation's successor requires a certificate of authority. If the court
determines, the court may further stay the proceeding until the
foreign corporation or the foreign corporation's successor obtains the
certificate.
(d) A foreign corporation is liable for a civil penalty of not more
than ten thousand dollars ($10,000) if the foreign corporation
transacts business in Indiana without a certificate of authority. The
attorney general may collect penalties due under this subsection.
(e) The failure of a foreign corporation to obtain a certificate of
authority does not do any of the following:
(1) Impair the validity of the foreign corporation's corporate
acts.
(2) Prevent the foreign corporation from defending a proceeding
in Indiana.
As added by P.L.179-1991, SEC.1.
IC 23-17-26-3
Application for certificate of authority; contents; certificate of
existence from foreign state or country
Sec. 3. (a) A foreign corporation may apply for a certificate of
authority to transact business in Indiana by delivering an application
to the secretary of state. The application must set forth the following:
(1) The name of the foreign corporation or, if the foreign
corporation's name is unavailable for use in Indiana, a corporate
name that satisfies the requirements of section 6 of this chapter.
(2) The name of the state or country under whose law the
foreign corporation is incorporated.
(3) The date of incorporation and period of duration.
(4) The street address of the foreign corporation's principal
office.
(5) The address of the foreign corporation's registered office in
Indiana and the name of the foreign corporation's registered
agent at the office.
(6) The names and usual business addresses of the foreign
corporation's current directors and officers.
(7) Whether the foreign corporation has members.
(8) Whether the corporation, if the foreign corporation had been
incorporated in Indiana, would be a public benefit, mutual
benefit, or religious corporation.
(b) The foreign corporation must deliver with the completed
application a certificate of existence or a similar document duly
authenticated by the secretary of state or other official having
custody of corporate records in the state or country under whose law
the foreign corporation is incorporated.
As added by P.L.179-1991, SEC.1.
IC 23-17-26-4
Amended certificate of authority
Sec. 4. (a) A foreign corporation authorized to transact business
in Indiana must obtain an amended certificate of authority from the
secretary of state if the corporation changes any of the following:
(1) The foreign corporation's corporate name.
(2) The period of the foreign corporation's duration.
(3) The state or country of the foreign corporation's
incorporation.
(b) The requirements of section 3 of this chapter for obtaining an
original certificate of authority apply to obtaining an amended
certificate under this section.
As added by P.L.179-1991, SEC.1.
IC 23-17-26-5
Rights and privileges under certificate of authority
Sec. 5. (a) A certificate of authority authorizes the foreign
corporation to which the certificate is issued to transact business in
Indiana subject to the right of the state to revoke the certificate as
provided in this article.
(b) A foreign corporation with a valid certificate of authority has
the same rights and enjoys the same privileges as and, except as
otherwise provided by this article, is subject to the same duties,
restrictions, penalties, and liabilities now or later imposed on a
similar domestic corporation.
(c) This article does not authorize Indiana to regulate the
organization or internal affairs of a foreign corporation authorized to
transact business in Indiana.
As added by P.L.179-1991, SEC.1.
IC 23-17-26-6
Corporate name
Sec. 6. (a) If the corporate name of a foreign corporation does not
satisfy the requirements of IC 23-17-5-1, the foreign corporation
may, to obtain or maintain a certificate of authority to transact
business in Indiana:
(1) add the word "corporation", "incorporated", "company", or
"limited" or the abbreviation "corp.", "inc.", "co.", or "ltd.", to
the foreign corporation's corporate name for use in Indiana; or
(2) use a fictitious name to transact business in Indiana if the
foreign corporation's real name is unavailable and the foreign
corporation delivers to the secretary of state for filing a copy of
the resolution of the foreign corporation's board of directors,
certified by the foreign corporation's secretary, adopting the
fictitious name.
(b) Except as authorized by subsections (c) and (d), the corporate
name, including a fictitious name, of a foreign corporation must be
distinguishable upon the records of the secretary of state from the
following:
(1) The corporate name of a corporation incorporated or
authorized to transact business in Indiana under IC 23-1.
(2) A corporate name reserved or registered under IC 23-17-5-2,
IC 23-17-5-3, IC 23-1-23-2, or IC 23-1-23-3.
(3) The fictitious name of another foreign business or nonprofit
corporation authorized to transact business in Indiana.
(4) The name of a nonprofit entity organized or authorized to
transact business in Indiana.
(c) A foreign corporation may apply to the secretary of state for
authorization to use in Indiana the name of another corporation
incorporated or authorized to transact business in Indiana that is not
distinguishable upon the secretary of state's records from the name
applied for. The secretary of state shall authorize use of the name
applied for if:
(1) the other corporation consents to the use in writing and
submits an undertaking in a form satisfactory to the secretary of
state to change the other corporation's name to a name that is
distinguishable upon the records of the secretary of state from
the name of the applying corporation; or
(2) the applicant delivers to the secretary of state a certified
copy of a final judgment of a court of competent jurisdiction
establishing the applicant's right to use the name applied for in
Indiana.
(d) A foreign corporation may use in Indiana the name, including
the fictitious name, of another domestic or foreign corporation that
is used in Indiana if the other corporation is incorporated or
authorized to transact business in Indiana and the foreign corporation
has:
(1) merged with the other corporation;
(2) been formed by reorganization of the other corporation; or
(3) acquired all or substantially all of the assets, including the
corporate name, of the other corporation.
(e) If a foreign corporation authorized to transact business in
Indiana changes the foreign corporation's corporate name to a name
that does not satisfy the requirements of IC 23-17-5-1, the foreign
corporation may not transact business in Indiana under the changed
name until the foreign corporation adopts a name satisfying the
requirements of IC 23-17-5-1 and obtains an amended certificate of
authority under section 4 of this chapter.
As added by P.L.179-1991, SEC.1.
IC 23-17-26-7
Registered office and registered agent
Sec. 7. A foreign corporation authorized to transact business in
Indiana must continuously maintain in Indiana:
(1) a registered office; and
(2) a registered agent, who may be:
(A) an individual who resides in Indiana and whose business
office is identical with the registered office;
(B) a corporation incorporated or authorized to transact
business under IC 23-1 whose business office is identical
with the registered office;
(C) a foreign business or nonprofit corporation authorized to
transact business in Indiana whose office is identical with
the registered office; or
(D) a nonprofit entity organized or authorized to transact
business in Indiana whose office is identical with the
registered office.
As added by P.L.179-1991, SEC.1.
IC 23-17-26-8
Change in registered office or registered agent
Sec. 8. (a) A foreign corporation authorized to transact business
in Indiana may change the foreign corporation's registered office or
registered agent by delivering to the secretary of state for filing a
statement of change that sets forth the following:
(1) The foreign corporation's name.
(2) The street address of the foreign corporation's current
registered office.
(3) If the current registered office is to be changed, the street
address of the foreign corporation's new registered office.
(4) The name of the foreign corporation's current registered
agent.
(5) If the current registered agent is to be changed, the name of
the foreign corporation's new registered agent and the new
agent's written consent or a representation that the new
registered agent has consented, either on the statement or
attached to the statement, to the appointment.
(6) That after the change is made, the street addresses of the
foreign corporation's registered office and the business office of
the foreign corporation's registered agent will be identical.
(b) If a registered agent changes the street address of the agent's
business office, the agent may change the street address of the
registered office of any foreign corporation that the registered agent
serves by notifying the corporation in writing of the change and
signing, either manually or in facsimile, and delivering to the
secretary of state for filing a statement of change that complies with
the requirements of subsection (a) and recites that the corporation
has been notified of the change.
As added by P.L.179-1991, SEC.1.
IC 23-17-26-9
Resignation of registered agent
Sec. 9. (a) The registered agent of a foreign corporation may
resign the agency appointment by signing and delivering to the
secretary of state for filing as described in IC 23-17-29 a statement
of resignation. The statement of resignation may include a statement
that the registered office is also discontinued.
(b) After filing the statement, the secretary of state shall attach the
filing receipt to one (1) copy and mail the copy and receipt to the
registered office if not discontinued. The secretary of state shall mail
one (1) copy to the foreign corporation at the foreign corporation's
principal office address shown in the foreign corporation's most
recent annual report.
(c) The agency appointment is terminated, and the registered
office discontinued if so provided, thirty-one (31) days after the date
on which the statement was filed.
As added by P.L.179-1991, SEC.1. Amended by P.L.228-1995,
SEC.21.
IC 23-17-26-10
Service of process or notice on foreign corporation
Sec. 10. (a) The registered agent of a foreign corporation
authorized to transact business in Indiana is the foreign corporation's
agent for service of process, notice, or demand required or permitted
by law to be served on the foreign corporation.
(b) A foreign corporation may be served by registered or certified
mail, return receipt requested, addressed to the secretary of the
foreign corporation or other executive officer under Trial Rule
4.6(A)(1) at the foreign corporation's principal office shown in the
foreign corporation's application for a certificate of authority or in
the foreign corporation's most recent annual report filed if the foreign
corporation:
(1) does not have a registered agent or the foreign corporation's
registered agent cannot with reasonable diligence be served;
(2) has withdrawn from transacting business in Indiana under
section 11 of this chapter; or
(3) has had the foreign corporation's certificate of authority
revoked under section 13 of this chapter.
(c) Service is perfected under subsection (b) the earliest of the
following:
(1) The date the foreign corporation receives the mail.
(2) The date shown on the return receipt, if signed on behalf of
the foreign corporation.
(3) Five (5) days after the service is deposited with the United
States Postal Service, if mailed postpaid and correctly
addressed.
(d) This section does not prescribe the only means of serving a
foreign corporation.
As added by P.L.179-1991, SEC.1.
IC 23-17-26-11
Withdrawal of foreign corporation; necessity of certificate of
withdrawal; application for certificate; service of process after
withdrawal
Sec. 11. (a) A foreign corporation authorized to transact business
in Indiana may not withdraw from Indiana until the foreign
corporation obtains a certificate of withdrawal from the secretary of
state.
(b) A foreign corporation authorized to transact business in
Indiana may apply for a certificate of withdrawal by delivering an
application to the secretary of state for filing. The application must
set forth the following:
(1) The name of the foreign corporation and the name of the
state or country under whose law the foreign corporation is
incorporated.
(2) That the foreign corporation is not transacting business in
Indiana and that the foreign corporation surrenders the foreign
corporation's authority to transact business in Indiana.
(3) That the foreign corporation revokes the authority of the
foreign corporation's registered agent to accept service on the
foreign corporation's behalf and appoints the secretary of state
as the foreign corporation's agent for service of process in any
proceeding based on a cause of action arising during the time
the foreign corporation was authorized to transact business in
Indiana.
(4) A mailing address to which the secretary of state may mail
a copy of any process served on the secretary of state under
subdivision (3).
(5) A commitment to notify the secretary of state in the future
of any change in the mailing address.
(c) After the withdrawal of the foreign corporation is effective,
service of process on the secretary of state under this section is
service on the foreign corporation. Upon receipt of process, the
secretary of state shall mail a copy of the process to the foreign
corporation at the mailing address set forth in the foreign
corporation's application for withdrawal.
As added by P.L.179-1991, SEC.1.
IC 23-17-26-12
Revocation of certificate of authority of a foreign corporation;
grounds
Sec. 12. The secretary of state may commence a proceeding under
IC 23-17-23-2 to revoke the certificate of authority of a foreign
corporation authorized to transact business in Indiana if any of the
following conditions exists:
(1) The foreign corporation does not deliver the annual report
to the secretary of state within sixty (60) days after the report is
due.
(2) The foreign corporation is without a registered agent or
registered office in Indiana for at least sixty (60) days.
(3) The foreign corporation does not inform the secretary of
state under section 8 or 9 of this chapter that the foreign
corporation's:
(A) registered agent or registered office has changed;
(B) registered agent has resigned; or
(C) registered office has been discontinued within sixty (60)
days of the change, resignation, or discontinuance.
(4) An incorporator, a director, an officer, or an agent of the
foreign corporation signed a document the incorporator,
director, officer, or agent knew was false in any material respect
with the intent that the document be delivered to the secretary
of state for filing.
(5) The secretary of state receives a duly authenticated
certificate from the secretary of state or other official having
custody of corporate records in the state or country under whose
law the foreign corporation is incorporated stating that the
foreign corporation has been dissolved or disappeared as the
result of a merger.
As added by P.L.179-1991, SEC.1.
IC 23-17-26-13
Procedure for revocation; service of process after revocation;
authority of registered agent
Sec. 13. (a) If the secretary of state determines that a ground
exists under section 12 of this chapter for revocation of a certificate
of authority, the secretary of state shall, under section 10 of this
chapter, serve the foreign corporation with written notice of the
determination.
(b) If the foreign corporation does not correct each ground for
revocation or demonstrate to the reasonable satisfaction of the
secretary of state that each ground determined by the secretary of
state does not exist within sixty (60) days after service of the notice
is perfected under section 10 of this chapter, the secretary of state
may revoke the foreign corporation's certificate of authority by
signing a certificate of revocation that recites the ground for
revocation and the revocation's effective date. The secretary of state
shall file the original of the certificate and serve a copy on the
foreign corporation under section 10 of this chapter.
(c) The authority of a foreign corporation to transact business in
Indiana ceases on the date shown on the certificate revoking the
foreign corporation's certificate of authority.
(d) The secretary of state's revocation of a foreign corporation's
certificate of authority appoints the secretary of state the foreign
corporation's agent for service of process in any proceeding based on
a cause of action that arose during the time the foreign corporation
was authorized to transact business in Indiana. Service of process on
the secretary of state under this subsection is service on the foreign
corporation. Upon receipt of process, the secretary of state shall mail
a copy of the process to the secretary of the foreign corporation at the
foreign corporation's principal office shown in the foreign
corporation's most recent annual report or in any subsequent
communication received from the corporation stating the current
mailing address of the foreign corporation's principal office, or, if a
report or communication is not on file, in the foreign corporation's
application for a certificate of authority.
(e) Revocation of a foreign corporation's certificate of authority
does not terminate the authority of the registered agent of the foreign
corporation.
As added by P.L.179-1991, SEC.1.
IC 23-17-26-14
Appeal of revocation
Sec. 14. (a) A foreign corporation may appeal the secretary of
state's revocation of the foreign corporation's certificate of authority
to the circuit or superior court of the county in which the foreign
corporation's registered office is located within thirty (30) days after
service of the certificate of revocation is perfected under section 10
of this chapter. The foreign corporation appeals by petitioning the
court to set aside the revocation and attaching to the petition copies
of the foreign corporation's certificate of authority and the secretary
of state's certificate of revocation.
(b) The court may do the following:
(1) Order the secretary of state to reinstate the certificate of
authority.
(2) Take any other action the court considers appropriate.
(c) The court's final decision may be appealed as in other civil
proceedings.
As added by P.L.179-1991, SEC.1.