Arkansas · State law

Arkansas Nonprofit Corporation Act of 1993

If your Arkansas association was incorporated on or after January 1, 1994, this is the statute that supplies its corporate machinery — members, meetings, voting, directors and their duties. In a state with no planned-community act it does a lot of work, and it contains one right worth knowing about: an association cannot expel or suspend a member except by a fair and reasonable procedure. It also, notably, contains no general corporate-records article and no member right to inspect the association’s books or finances — the only inspection right in the chapter is a narrow one over the members’ list for a meeting. The full statutory text, hosted for reference, with a plain-language guide for homeowners.

A.C.A. A.C.A. Tit. 4 · Ch. 33 §§ 4-33-101 – 4-33-1707 187 Sections

What this means for homeowners

The Arkansas Nonprofit Corporation Act of 1993 (A.C.A. § 4-33-101 et seq.) is not a community-association law. It is Arkansas’s general corporate code for nonprofit corporations. But because Arkansas has no planned-community or property owners’ association act, this chapter ends up carrying far more weight for homeowners here than its equivalent does in most states. For an incorporated Arkansas HOA it is the source of the rules on who the members are, how meetings are called and votes are counted, what the board must do, and how the governing documents get amended.

First question: does this act govern your association?

It turns on a single date. Section 4-33-1701 says the chapter applies to all domestic corporations incorporated on or after January 1, 1994. A corporation formed before that date is not automatically covered — it “shall continue to be governed by preexisting law,” meaning the older Nonprofit Corporation Act of 1963.

Older associations can opt in, but only one way and only once. A pre-1994 corporation may elect to be governed by this chapter by amending its articles of incorporation to say so, approved by at least a majority of the members (or a majority of directors if it has no members). The statute is blunt about the consequence: “once made shall be irrevocable” (§ 4-33-1701).
How to check. The incorporation date and any later amendment to the articles are both on file with the Arkansas Secretary of State. Search your association by subdivision or community name.

Your association is almost certainly a “mutual benefit corporation.” The act sorts corporations into public benefit, mutual benefit and religious. For a corporation formed on or after 1 January 1994 the designation is not inferred at all — the articles of incorporation must state which of the three it is (§ 4-33-202(a)(2)), and that statement is on file with the Secretary of State, so check it rather than assume. Section 4-33-1707 is a transition rule that assigns the designation to a pre-1994 corporation electing into this chapter; under it, a body that is not designated by statute, not religious, and not a 501(c)(3) or otherwise organized for a public or charitable purpose falls into the residual category: “Any corporation that does not come within subsection (1), (2), (3), or (4) of this section is a mutual benefit corporation” (§ 4-33-1707(5)). That label matters, because several of the protections below are written to apply to public benefit and mutual benefit corporations specifically.

The strongest thing in this chapter for a homeowner

Section 4-33-621 is the one to know. No member of a mutual benefit corporation may be expelled or suspended, and no membership may be terminated or suspended, except under a procedure that is “fair and reasonable and is carried out in good faith.” In a state that gives homeowners almost no statutory due process, this is a real one.

The statute then supplies a safe harbour. A procedure is fair and reasonable if the articles or bylaws provide:

at least fifteen days’ prior written notice of the expulsion, suspension or termination and the reasons for it; and
an opportunity to be heard, orally or in writing, not less than five days before the effective date, by a person authorized to decide that it not take place (§ 4-33-621(b)(1)).

Failing that safe harbour is not automatically fatal — a procedure can still qualify if it “is fair and reasonable taking into consideration all of the relevant facts and circumstances” (§ 4-33-621(b)(2)). Notice by mail must go first-class or certified to your last address in the corporation’s records (§ 4-33-621(c)). Watch the clock: any challenge, including one based on defective notice, must be commenced within one year of the effective date (§ 4-33-621(d)). And expulsion does not wipe out what you already owe — you may remain liable for dues, assessments or fees on obligations incurred before it (§ 4-33-621(e)).

Dues and assessments: this chapter does not create the obligation

This is a subtle point with real consequences. Section 4-33-613 says a member may become liable to the corporation for dues, assessments or fees — but then adds that “an article or bylaw provision or a resolution adopted by the board authorizing or imposing dues, assessments or fees does not, of itself, create liability.”

In other words, a board cannot manufacture an assessment obligation simply by passing a resolution or writing it into the bylaws. The obligation to pay has to come from somewhere else — in the HOA context, ordinarily the recorded declaration or bill of assurance that binds your lot. (Arkansas’s recording rule for restrictive covenants generally is A.C.A. § 18-12-103, which requires the instrument to be executed by the owners and recorded before it restricts use or development at all — it governs restrictions, not the affirmative duty to pay.) That is another reason the recorded documents matter so much in Arkansas.

Meetings, notice and voting

An annual meeting is required, at a time set by the bylaws, and at it the president and chief financial officer shall report on the activities and financial condition of the corporation (§ 4-33-701(a), (d)). A missed annual or regular meeting does not, by itself, invalidate corporate action taken in the meantime (§ 4-33-701(f)) — the remedy is a court-ordered meeting under § 4-33-703.
Members can force a special meeting with 5%. Holders of at least five percent of the voting power may sign, date and deliver a written demand describing the purpose, and the corporation must hold one (§ 4-33-702(a)(2)). That is a markedly lower threshold than the 25% many states require.
Notice. Notice must be given in a “fair and reasonable manner,” and is deemed fair and reasonable if given no fewer than 10 days (or 30 if mailed by other than first class or registered mail) and no more than 60 days before the meeting (§ 4-33-705(a), (c)(1)).
Quorum defaults to 10% of the votes entitled to be cast, unless this chapter, the articles or the bylaws set it higher or lower (§ 4-33-722(a)). But note the limiter: unless at least one-third of the voting power is present, the only matters that may be voted on at an annual or regular meeting are those described in the meeting notice (§ 4-33-722(d)).
Proxies are allowed unless your documents say otherwise, are revocable, and are valid for eleven months unless the form says otherwise — and never more than three years from execution (§ 4-33-724).

The board

Members may remove a director they elected without cause (§ 4-33-808(a)) — but only at a meeting called for that purpose, with the notice stating that removal is a purpose of the meeting (§ 4-33-808(e)). Removal takes enough votes that they would have been sufficient to elect the director (§ 4-33-808(c)), with a protection where cumulative voting is authorized (§ 4-33-808(d)). An entire board may be removed this way (§ 4-33-808(g)).
Standards of conduct. A director must act in good faith, with the care an ordinarily prudent person in a like position would exercise, and in a manner the director reasonably believes to be in the corporation’s best interests (§ 4-33-830(a)). A director may rely on officers, counsel, accountants and board committees they reasonably believe competent — but not if the director knows something that makes that reliance unwarranted (§ 4-33-830(b), (c)). A director who complies with this section is not liable to the corporation, to any member, or to anyone else for what they did or did not do (§ 4-33-830(d)) — which is a large part of why suing a board over a bad decision is hard.
Conflicts are managed, not banned. A transaction in which a director has a direct or indirect interest is not voidable, and is no basis for liability, if it was fair to the corporation when entered into, or the material facts and the director’s interest were disclosed or known and the transaction was approved by a majority of disinterested directors (never fewer than a majority of the entire board) or by the members (§ 4-33-831).
No distributions. “Except as authorized by § 4-33-1302, a corporation shall not make any distributions” (§ 4-33-1301) — the assessments you pay cannot be paid out to members or directors as profit.

Changing the articles and bylaws

For a mutual benefit corporation with members, an amendment to the articles or the bylaws generally requires approval by the members by two-thirds of the votes cast, or a majority of the voting power, whichever is less (§§ 4-33-1003(a)(2), 4-33-1021(a)(2)) — unless the chapter, the articles or the bylaws set a higher bar. Those defaults are exactly the kind of thing your own documents often override, so read them alongside the statute.

One protection worth flagging: an amendment that would terminate all members or a class of members, or redeem or cancel memberships, carries extra procedure. The board of a mutual benefit corporation must give notice of the general nature of the amendment beforehand, and the notice proposing it must carry one statement of up to 500 words opposing it if five members, or members holding 3% or more of the voting power (whichever is less), submit that statement no later than twenty days after the board voted to submit the amendment — and in a mutual benefit corporation the corporation pays the production and mailing costs. The amendment itself must be approved by two-thirds of the votes cast by each class, not the ordinary default (§ 4-33-1031(b)–(d)).

But read the sting in the tail. Section 4-33-1031(e) provides that § 4-33-621 does not apply to an amendment meeting the requirements of that section. So the fair-and-reasonable procedure — the strongest protection in this chapter — can be bypassed by an amendment that terminates a whole class of memberships, provided the § 4-33-1031 steps are followed. Note too that all of this applies unless the articles or bylaws provide otherwise (§ 4-33-1031(a)).

What this chapter does not give you — and it is a big gap

Most states’ nonprofit codes contain a records article: what the corporation must keep, and a member’s right to inspect and copy it. Arkansas’s 1993 Act does not. There is no records-keeping section, no general member inspection right, and no court-ordered inspection remedy anywhere in the chapter.

The one inspection right it does contain is narrow and tied to a meeting. Under § 4-33-720 the corporation must prepare an alphabetical list of members entitled to notice, showing each member’s address and number of votes. That list must be available for inspection by any member — for the purpose of communicating with other members about the meeting — beginning two business days after notice is given and continuing through the meeting, and a member or their agent or attorney may inspect and copy it on written demand, at a reasonable time and at the member’s own expense. It must also be available at the meeting. But without board consent, the list may not be obtained or used for any purpose unrelated to a member’s interest as a member (§ 4-33-720(b)–(d)).

So if you are trying to see your association’s finances, this chapter is not the tool. Where the association is a condominium under the Horizontal Property Act, § 18-13-110 gives co-owners a right to examine the book of receipts and expenditures and its vouchers. Otherwise your access rights come from your own recorded documents.

Also absent from this chapter, because homeowners reasonably ask: no cap on assessment increases, no open-meeting requirement for board meetings, no architectural or fining procedure, and no state agency that supervises associations. There are, however, several court remedies worth knowing about, and the most useful one is not the obvious one. Under § 4-33-703, if the annual meeting was not held within the earlier of six months after the end of the fiscal year or fifteen months after the last annual meeting, or if a regular meeting is more than 40 days late, or if notice of a validly demanded special meeting was not given within thirty days of the demand, any member may apply to the circuit court, which may summarily order the meeting, fix its time, place, record date, notice and quorum — and may order the corporation to pay the member’s costs, including reasonable counsel fees (§ 4-33-703(a)–(c)). That is a far easier showing than § 4-33-160 below, and it is the one to reach for when a board has simply skipped the meeting. Members holding at least ten percent of the voting power of any class may also sue to remove a director for fraudulent or dishonest conduct or gross abuse of authority or discretion, where removal is in the corporation’s best interest, and the court may bar that person from the board for a period (§ 4-33-810). A member may bring a derivative proceeding to enjoin an ultra vires act where no third party has acquired rights (§ 4-33-304(b)). And under § 4-33-160, if it is impractical or impossible to call or conduct a meeting of the members or directors, or otherwise obtain their consent, in the manner the articles, bylaws or this chapter prescribe, then a director, officer, delegate or member may petition the circuit court and the court may order that a meeting be called, or that a written ballot or other means of obtaining a vote be authorized, in whatever manner the court finds fair and equitable. Section 4-33-1430 separately sets out the grounds for judicial dissolution. Beyond those, enforcement is a matter for the courts.

How it fits with Arkansas’s other community laws

Think of this as the corporate layer. The community layer is your recorded declaration or bill of assurance, plus — if you live in a condominium — the Horizontal Property Act. If your association was incorporated before 1994 and never elected in, the Nonprofit Corporation Act of 1963 governs it instead. Housing-discrimination questions run through the Arkansas Civil Rights Act and Fair Housing Act and the federal Fair Housing Act, and Arkansas has its own Fair Debt Collection Practices Act if a third-party collector is chasing your assessments. Return to the Arkansas HOA laws hub for the full set.

Source. Reproduced from the Arkansas Code of 1987 Annotated, unofficially updated by LexisNexis through the legislation of the First Extraordinary Session, 2026, A.C.A. § 4-33-101 et seq. (the “Arkansas Nonprofit Corporation Act of 1993”), as published by LexisNexis for the State of Arkansas. Provided for reference and convenience; it may not reflect the most recent amendments, so always confirm the current text against the official source.

Contents · 187 sections ▾

4-33-101 Short title.
4-33-102 Reservation of power to amend or repeal.
4-33-103 Reserved
4-33-120 Filing requirements.
4-33-121 Forms.
4-33-122 Filing, service, and copying fees.
4-33-123 Effective date of document.
4-33-124 Correcting filed document.
4-33-125 Filing duty of Secretary of State.
4-33-126 Appeal from Secretary of State's refusal to file document.
4-33-127 Evidentiary effect of copy of filed document.
4-33-128 Certificate of existence.
4-33-129 Penalty for signing false document.
4-33-130 Powers.
4-33-131 Annual disclosure of information.
4-33-132 Reserved
4-33-140 Chapter definitions.
4-33-141 Notice.
4-33-142 Reserved
4-33-150 Internal Revenue section 501(c)(3) — Organizations and private foundations.
4-33-151 Reserved
4-33-160 Judicial relief.
4-33-161 Reserved
4-33-170 Reserved
4-33-180 Religious corporations — Constitutional protections.
4-33-201 Incorporators.
4-33-202 Articles of incorporation.
4-33-203 Incorporation.
4-33-204 Liability for preincorporation transactions.
4-33-205 Organization of corporation.
4-33-206 Bylaws.
4-33-207 Emergency bylaws and powers.
4-33-301 Purposes.
4-33-302 General powers.
4-33-303 Emergency powers.
4-33-304 Ultra vires.
4-33-401 Corporate name.
4-33-402 Reserved name.
4-33-403 Registered name.
4-33-501 Repealed
4-33-601 Admission.
4-33-602 Consideration.
4-33-603 No requirement of members.
4-33-604 Reserved
4-33-610 Differences in rights and obligations of members.
4-33-611 Transfers.
4-33-612 Member's liability to third parties.
4-33-613 Member's liability for dues, assessments and fees.
4-33-614 Creditor's action against member.
4-33-615 Reserved
4-33-620 Resignation.
4-33-621 Termination, expulsion and suspension.
4-33-622 Purchase of memberships.
4-33-623 Reserved
4-33-630 Reserved
4-33-640 Delegates.
4-33-701 Annual and regular meetings.
4-33-702 Special meeting.
4-33-703 Court-ordered meeting.
4-33-704 Action by written consent.
4-33-705 Notice of meeting.
4-33-706 Waiver of notice.
4-33-707 Record date — Determining members entitled to notice and vote.
4-33-708 Action by written ballot.
4-33-709 Reserved
4-33-720 Members' list for meeting.
4-33-721 Voting entitlement generally.
4-33-722 Quorum requirements.
4-33-723 Voting requirements.
4-33-724 Proxies.
4-33-725 Cumulative voting for directors.
4-33-726 Other methods of electing directors.
4-33-727 Corporation's acceptance of votes.
4-33-728 Reserved
4-33-730 Voting agreements.
4-33-801 Requirement for and duties of board.
4-33-802 Qualification of directors.
4-33-803 Number of directors.
4-33-804 Election, designation and appointment of directors.
4-33-805 Terms of directors generally.
4-33-806 Staggered terms for directors.
4-33-807 Resignation of directors.
4-33-808 Removal of directors elected by members or directors.
4-33-809 Removal of designated or appointed directors.
4-33-810 Removal of directors by judicial proceeding.
4-33-811 Vacancy on board.
4-33-812 Compensation of directors.
4-33-813 Reserved
4-33-820 Regular and special meetings.
4-33-821 Action without meeting.
4-33-822 Call and notice of meetings.
4-33-823 Waiver of notice.
4-33-824 Quorum and voting.
4-33-825 Committees of the board.
4-33-826 Reserved
4-33-830 General standards for directors.
4-33-831 Director conflict of interest.
4-33-832 Loans to or guaranties for directors and officers.
4-33-833 Liability for unlawful distributions.
4-33-834 Reserved
4-33-840 Required officers.
4-33-841 Reserved
4-33-842 Standards of conduct for officers.
4-33-843 Resignation and removal of officers.
4-33-844 Contract rights of officers.
4-33-845 Officers' authority to execute documents.
4-33-846 Reserved
4-33-850 Part definitions.
4-33-851 Authority to indemnify.
4-33-852 Mandatory indemnification.
4-33-853 Advance for expenses.
4-33-854 Court-ordered indemnification.
4-33-855 Determination and authorization of indemnification.
4-33-856 Indemnification of officers, employees and agents.
4-33-857 Insurance.
4-33-858 Application of part.
4-33-1001 Authority to amend.
4-33-1002 Amendment by directors.
4-33-1003 Amendment by directors and members.
4-33-1004 Class voting by members on amendments.
4-33-1005 Articles of amendment.
4-33-1006 Restated articles of incorporation.
4-33-1007 Amendment pursuant to judicial reorganization.
4-33-1008 Effect of amendment and restatement.
4-33-1009 Reserved
4-33-1020 Amendment by directors.
4-33-1021 Amendment by directors and members.
4-33-1022 Class voting by members on amendments.
4-33-1023 Reserved
4-33-1030 Approval by third persons.
4-33-1031 Amendment terminating members or redeeming or cancelling memberships.
4-33-1101 Approval of plan of merger.
4-33-1102 Limitations on mergers by public benefit or religious corporations.
4-33-1103 Action on plan by board, members and third persons.
4-33-1104 Articles of merger.
4-33-1105 Effect of merger.
4-33-1106 Merger with foreign corporation.
4-33-1107 Bequests, devises and gifts.
4-33-1108 Continuation of prior corporate existence for limited purpose.
4-33-1201 Sale of assets in regular course of activities and mortgage of assets.
4-33-1202 Sale of assets other than in regular course of activities.
4-33-1301 Prohibited distributions.
4-33-1302 Authorized distributions.
4-33-1401 Dissolution by incorporators or directors and third persons.
4-33-1402 Dissolution by directors, members and third persons.
4-33-1403 Reserved
4-33-1404 Articles of dissolution.
4-33-1405 Reserved
4-33-1406 Effect of dissolution.
4-33-1407 Known claims against dissolved corporation.
4-33-1408 Unknown claims against dissolved corporation.
4-33-1409 Reserved
4-33-1420 Grounds for administrative dissolution.
4-33-1421 Procedure for and effect of administrative dissolution.
4-33-1422 Reinstatement following administrative dissolution.
4-33-1423 Appeal from denial of reinstatement.
4-33-1424 Reserved
4-33-1430 Grounds for judicial dissolution.
4-33-1431 Procedure for judicial dissolution.
4-33-1432 Receivership or custodianship.
4-33-1433 Decree of dissolution.
4-33-1434 Reserved
4-33-1440 Deposit with Treasurer of State.
4-33-1501 Authority to transact business required.
4-33-1502 Consequences of transacting business without authority.
4-33-1503 Application for certificate of authority.
4-33-1504 Amended certificate of authority.
4-33-1505 Effect of certificate of authority.
4-33-1506 Corporate name of foreign corporation.
4-33-1507 Registered office and registered agent of foreign corporation.
4-33-1508 Change of registered office or registered agent of foreign corporation.
4-33-1509 Resignation of registered agent of foreign corporation.
4-33-1510 Service on foreign corporation.
4-33-1511 Reserved
4-33-1520 Withdrawal of foreign corporation.
4-33-1521 Reserved
4-33-1530 Grounds for revocation.
4-33-1531 Procedure and effect of revocation.
4-33-1532 Appeal from revocation.
4-33-1601 Conversion to a public water authority.
4-33-1701 Application to existing domestic corporations.
4-33-1702 Application to qualified foreign corporations.
4-33-1703 Saving provisions.
4-33-1704 Severability.
4-33-1705 Repeal.
4-33-1706 Effective date.
4-33-1707 Public benefit, mutual benefit and religious corporations.

§ 4-33-101 Short title.

This chapter shall be known and may be cited as the “Arkansas Nonprofit Corporation Act of 1993”.

§ 4-33-102 Reservation of power to amend or repeal.

The General Assembly has power to amend or repeal all or part of this chapter at any time and all domestic and foreign corporations subject to this chapter are governed by the amendment or repeal.

§ 4-33-103 Reserved

[Reserved] – § 4-33-119

§ 4-33-120 Filing requirements.

(a) A document must satisfy the requirements of this section, and of any other section that adds to or varies these requirements, to be entitled to filing by the Secretary of State.

(b) This chapter must require or permit filing the document in the office of the Secretary of State.

(d) The document must be typewritten or printed.

(e) The document must be in the English language. However, a corporate name need not be in English if written in English letters or Arabic or Roman numerals, and the certificate of existence required of foreign corporations need not be in English if accompanied by a reasonably authenticated English translation.

(f) The document must be executed:

(1) by the presiding officer of its board of directors of a domestic or foreign corporation, its president, or by another of its officers;

(2) if directors have not been selected or the corporation has not been formed, by an incorporator; or

(3) if the corporation is in the hands of a receiver, trustee, or other court-appointed fiduciary, by that fiduciary.

(g) The person executing a document shall sign it and state beneath or opposite the signature his or her name and the capacity in which he or she signs. The document may, but need not, contain:

(1) the corporate seal;

(2) an attestation by the secretary or an assistant secretary; or

(3) an acknowledgment, verification, or proof.

(h) If the Secretary of State has prescribed a mandatory form for a document under § 4-33-121, the document must be in or on the prescribed form.

(i) The document must be delivered to the office of the Secretary of State for filing and must be accompanied by one (1) exact or conformed copy (except as provided in §§ 4-33-503 [repealed] and 4- 33-1509), the correct filing fee, and any franchise tax, license fee, or penalty required by this chapter or other law.

§ 4-33-121 Forms.

The Secretary of State may prescribe and furnish on request, forms for: (1) an application for a certificate of existence; (2) a foreign corporation's application for a certificate of authority to transact business in this state; and (3) a foreign corporation's application for a certificate of withdrawal. If the Secretary of State so requires, use of these forms is mandatory.

§ 4-33-122 Filing, service, and copying fees.

(a) The Secretary of State shall collect the following fees when the documents described in this subsection are delivered for filing:Click here to view table.

(b)(1) The Secretary of State shall collect a fee of twenty-five dollars ($25.00) upon being served with process under this chapter.

(2) The party to a proceeding causing service of process is entitled to recover the fee paid the Secretary of State as costs if the party prevails in the proceeding.

(c) The Secretary of State shall collect the following fees for copying and certifying the copy of any filed document relating to a domestic or foreign corporation:

(1) Fifty cents (50¢) a page for copying; and

(2) Five dollars ($5.00) for the certificate.

(d) The Secretary of State shall collect the following fees when the documents described in this subsection are delivered to him or her by electronic means: Click here to view table.

§ 4-33-123 Effective date of document.

(a) Except as provided in subsection (b) of this section, a document is effective:

(1) at the time of filing on the date it is filed, as evidenced by the Secretary of State's endorsement on the original document; or

(2) at the time specified in the document as its effective time on the date it is filed.

(b) A document may specify a delayed effective time and date, and if it does so the document becomes effective at the time and date specified. If a delayed effective date but no time is specified, the document is effective at the close of business on that date. A delayed effective date for a document may not be later than the ninetieth day after the date filed.

§ 4-33-124 Correcting filed document.

(a) A domestic or foreign corporation may correct a document filed by the Secretary of State if the document contains an incorrect statement, or was defectively executed, attested, sealed, verified, or acknowledged.

(b) A document is corrected:

(1) by preparing articles of correction that (i) describe the document (including its filing date) or attach a copy of it to the articles, (ii) specify the incorrect statement and the reason it is incorrect or the manner in which the execution was defective, and (iii) correct the incorrect statement or defective execution; and

(2) by delivering the articles of correction to the Secretary of State.

(c) Articles of correction are effective on the effective date of the document they correct except as to persons relying on the uncorrected document and adversely affected by the correction. As to those persons, articles of correction are effective when filed.

§ 4-33-125 Filing duty of Secretary of State.

(a) If a document delivered to the office of the Secretary of State for filing satisfies the requirements of § 4-33-120, the Secretary of State shall file it.

(b) The Secretary of State files a document by stamping or otherwise endorsing “Filed,” together with the Secretary of State's name and official title and the date and time of receipt, on both the original and the document copy and on the receipt for the filing fee. After filing a document, except as provided in § 4-33-1510, the Secretary of State shall deliver the document copy, with the filing fee receipt (or acknowledgement of receipt if no fee is required) attached, to the domestic or foreign corporation or its representative.

(c) Upon refusing to file a document, the Secretary of State shall return it to the domestic or foreign corporation or its representative within five (5) days after the document was delivered, together with a brief, written explanation of the reason or reasons for the refusal.

(d) The Secretary of State's duty to file documents under this section is ministerial. Filing or refusal to file a document does not:

(1) affect the validity or invalidity of the document in whole or in part;

(2) relate to the correctness or incorrectness of information contained in the document; or

(3) create a presumption that the document is valid or invalid or that information contained in the document is correct or incorrect.

§ 4-33-126 Appeal from Secretary of State's refusal to file document.

(a) If the Secretary of State refuses to file a document delivered for filing to the Secretary of State's office, the domestic or foreign corporation may appeal the refusal to the circuit court in the county where the corporation's principal office is located or the Pulaski County Circuit Court if the corporation does not have a principal office in this state. The appeal is commenced by petitioning the court to compel filing the document and by attaching to the petition the document and the Secretary of State's explanation of the refusal to file.

(b) The court may summarily order the Secretary of State to file the document or take other action the court considers appropriate.

§ 4-33-127 Evidentiary effect of copy of filed document.

A certificate attached to a copy of a document bearing the Secretary of State's signature (which may be in facsimile) and the seal of this state, is conclusive evidence that the original document is on file with the Secretary of State.

§ 4-33-128 Certificate of existence.

(a) Any person may apply to the Secretary of State to furnish a certificate of existence for a domestic or foreign corporation.

(b) The certificate of existence sets forth:

(1) the domestic corporation's corporate name or the foreign corporation's corporate name used in this state;

(2) that (i) the domestic corporation is duly incorporated under the law of this state, the date of its incorporation, and the period of its duration if less than perpetual; or (ii) that the foreign corporation is authorized to transact business in this state;

(3) that all fees, taxes, and penalties owed to this state have been paid, if (i) payment is reflected in the records of the Secretary of State and (ii) nonpayment affects the good standing of the domestic or foreign corporation;

(4) that articles of dissolution have not been filed; and

(5) other facts of record in the office of the Secretary of State that may be requested by the applicant.

(c) Subject to any qualification stated in the certificate, a certificate of existence issued by the Secretary of State may be relied upon as conclusive evidence that the domestic or foreign corporation is in good standing in this state.

§ 4-33-129 Penalty for signing false document.

(a) A person commits an offense by signing a document such person knows is false in any material respect with intent that the document be delivered to the Secretary of State for filing.

(b) An offense under this section is a Class C misdemeanor.

§ 4-33-130 Powers.

The Secretary of State has the power reasonably necessary to perform the duties required of him or her by this chapter.

§ 4-33-131 Annual disclosure of information.

(a) Each nonprofit domestic corporation, nonprofit foreign corporation, and nonprofit corporation organized under § 4-28-101 et seq. authorized to transact business in this state shall annually file with the Secretary of State by August 1 a statement that sets forth:

(1) The name of the corporation;

(2) The corporation's jurisdiction of incorporation;

(3) The name and address of the corporation's registered agent for service of process;

(4) The address of the corporation's principal office;

(5) The names of the corporation's principal officers; and

(6) The names and addresses of the corporation's directors.

(b) If on or before January 31 of each year, a nonprofit domestic corporation, nonprofit foreign corporation, or nonprofit corporation organized under § 4-28-101 et seq. has not filed an annual disclosure statement, the Secretary of State shall proclaim:

(1) The corporate charter or authority of the nonprofit domestic corporation, nonprofit foreign corporation, or nonprofit corporation organized under § 4-28-101 et seq. as not current; and

(2) That, according to the Secretary of State's records, the nonprofit domestic corporation, nonprofit foreign corporation, or nonprofit corporation organized under § 4-28-101 et seq. is delinquent in the filing of the annual disclosure statement for the prior year.

(c)(1) A nonprofit domestic corporation, nonprofit foreign corporation, or nonprofit corporation organized under § 4-28-101 et seq. whose charter or authority to do business in this state is declared not current under subdivision (b)(1) of this section, shall be reinstated to all rights, powers, and property after the nonprofit domestic corporation, nonprofit foreign corporation, or nonprofit corporation organized under § 4-28-101 et seq. files an annual disclosure statement for the previous four (4) years that were delinquent.

(2) The annual disclosure statement shall be satisfactory to the Secretary of State.

(3) Reinstatement of the nonprofit domestic corporation, nonprofit foreign corporation, or nonprofit corporation organized under § 4-28-101 et seq. under subdivision (c)(1) of this section shall be retroactive to the time that the nonprofit domestic corporation's, nonprofit foreign corporation's, or nonprofit corporation's authority to do business in this state was declared as not current.

(d)(1) Reinstatement under subsection (c) of this section shall not be allowed after five (5) years from the date the charter or authority to do business in this state was declared not current under subdivision (b)

(1) of this section.

(2) After five (5) years, the nonprofit domestic corporation, nonprofit foreign corporation, or nonprofit corporation organized under § 4-28-101 et seq. shall be statutorily dissolved and the nonprofit domestic corporation, nonprofit foreign corporation, or nonprofit corporation organized under § 4-28-101 et seq. name shall become available immediately for use by another entity if deemed available by the Secretary of State.

§ 4-33-132 Reserved

[Reserved] – § 4-33-139

§ 4-33-140 Chapter definitions.

Unless the context otherwise requires in this chapter:

(1) “Approved by (or approval by) the members” means approved or ratified by the affirmative vote of a majority of the votes represented and voting at a duly held meeting at which a quorum is present (which affirmative votes also constitute a majority of the required quorum) or by a written ballot or written consent in conformity with this chapter or by the affirmative vote, written ballot or written consent of such greater proportion, including the votes of all the members of any class, unit or grouping as may be provided in the articles, bylaws or this chapter for any specified member action.

(2) “Articles of incorporation” or “articles” include amended and restated articles of incorporation and articles of merger.

(3) “Board” or “board of directors” means the board of directors except that no person or group of persons are the board of directors because of powers delegated to that person or group pursuant to § 4- 33-801.

(4) “Bylaws” means the code or codes of rules (other than the articles) adopted pursuant to this chapter for the regulation or management of the affairs of the corporation irrespective of the name or names by which such rules are designated.

(5) “Class” refers to a group of memberships which have the same rights with respect to voting, dissolution, redemption and transfer. For the purpose of this section, rights shall be considered the same if they are determined by a formula applied uniformly.

(6) “Corporation” means public benefit, mutual benefit and religious corporation.

(7) “Delegates” means those persons elected or appointed to vote in a representative assembly for the election of a director or directors or on other matters.

(8) “Deliver” includes mail.

(9) “Designated director” means a director who is authorized by the articles or bylaws of a corporation to be appointed by any person, corporation, or entity to a position as one (1) or more of the directors of the corporation.

(10) “Directors” means individuals, designated in the articles or bylaws or elected by the incorporators, and their successors and individuals elected or appointed by any other name or title to act as members of the board.

(11) “Distribution” means the payment of a dividend or any part of the income or profit of a corporation to its members, directors or officers.

(12) “Domestic corporation” means a corporation organized under the laws of this state.

(13) “Effective date of notice” is defined in § 4-33-141.

(14) “Employee” does not include an officer or director who is not otherwise employed by the corporation.

(15) “Entity” includes corporation and foreign corporation; business corporation and foreign business corporation; profit and nonprofit unincorporated association; corporation sole; business trust, estate, partnership, trust, and two (2) or more persons having a joint or common economic interest; and state, United States, and foreign government.

(16) “File,” “filed,” or “filing” means filed in the office of the Secretary of State.

(17) “Foreign corporation” means a corporation organized under a law other than the law of this state which would be a nonprofit corporation if formed under the laws of this state.

(18) “Governmental subdivision” includes authority, county, district, and municipality.

(19) “Includes” denotes a partial definition.

(20) “Individual” includes the estate of an incompetent individual.

(21) “Means” denotes a complete definition.

(22) “Member” means (without regard to what a person is called in the articles or bylaws) any person or persons who on more than one (1) occasion, pursuant to a provision of a corporation's articles or bylaws, have the right to vote for the election of a director or directors. A person is not a member by virtue of any of the following:

(i) any rights such person has as a delegate;

(ii) any rights such person has to designate a director or directors; or

(iii) any rights such person has as a director.

(23) “Membership” refers to the rights and obligations a member or members have pursuant to a corporation's articles, bylaws and this chapter.

(24) “Mutual benefit corporation” means a domestic corporation which is formed as a mutual benefit corporation pursuant to §§ 4-33-201 et seq., or is required to be a mutual benefit corporation pursuant to § 4-33-1707, formed to benefit, represent and serve a group of individuals or entities.

(25) “Notice” is defined in § 4-33-141.

(26) “Person” includes any individual or entity.

(27) “Principal office” means the office (in or out of this state) so designated in the bylaws or, if none, the registered office of a domestic or foreign corporation.

(28) “Proceeding” includes civil suit and criminal, administrative, and investigatory action.

(29) “Public benefit corporation” means a domestic corporation which is formed as a public benefit corporation pursuant to §§ 4-33-201 et seq., or is required to be a public benefit corporation pursuant to § 4-33-1707 to perform good works, to benefit society or improve the human condition.

(30) “Record date” means the date established under §§ 4-33-701 et seq. on which a corporation determines the identity of its members for the purposes of this chapter.

(31) “Religious corporation” means a domestic corporation which is formed as a religious corporation pursuant to §§ 4-33-201 et seq., or is required to be a religious corporation pursuant to § 4-33-1707 for religious purposes.

(32) “Secretary” means the corporate officer to whom the bylaws or the board of directors has delegated responsibility under § 4-33-840(b) for custody of the minutes of the directors' and members' meetings and for authenticating the records of the corporation.

(33) “State,” when referring to a part of the United States, includes a state and commonwealth (and their agencies and governmental subdivisions) and a territory, and insular possession (and their agencies and governmental subdivisions) of the United States.

(34) “United States” includes any district, authority, bureau, commission, department, and any other agency of the United States.

(35) “Vote” includes authorization by written ballot and written consent.

(36) “Voting power” means the total number of votes entitled to be cast for the election of directors at the time the determination of voting power is made, excluding a vote which is contingent upon the happening of a condition or event that has not occurred at the time. Where a class is entitled to vote as a class for directors, the determination of voting power of the class shall be based on the percentage of the number of directors the class is entitled to elect out of the total number of authorized directors.

§ 4-33-141 Notice.

(a) Notice may be oral or written.

(b) Notice may be communicated in person; by telephone, telegraph, teletype, telecopier, facsimile, or other form of wire or wireless communication; or by mail or private carrier; if these forms of personal notice are impracticable, notice may be communicated by a newspaper of general circulation in the area where published; or by radio, television, or other form of public broadcast communication.

(d) Written notice, if in a comprehensible form, is effective at the earliest of the following:

(1) when received;

(2) five (5) days after its deposit in the United States mail, as evidenced by the postmark, if mailed correctly addressed and with first class postage affixed;

(3) on the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee;

(4) thirty (30) days after its deposit in the United States mail, as evidenced by the postmark, if mailed correctly addressed and with other than first class, registered or certified postage affixed.

(e) Written notice is correctly addressed to a member of a domestic or foreign corporation if addressed to the member's address shown in the corporation's current list of members.

(f) A written notice or report delivered as part of a newsletter, magazine or other publication regularly sent to members shall constitute a written notice or report if addressed or delivered to the member's address shown in the corporation's current list of members, or in the case of members who are residents of the same household and who have the same address in the corporation's current list of members, if addressed or delivered to one (1) of such members, at the address appearing on the current list of members.

(g) Written notice is correctly addressed to a domestic or foreign corporation (authorized to transact business in this state), other than in its capacity as a member, if addressed to its registered agent or to its secretary at its principal office.

(h) If § 4-33-705(b) or any other provision of this chapter prescribes notice requirements for particular circumstances, those requirements govern. If articles or bylaws prescribe notice requirements, not inconsistent with this section or other provisions of this chapter, those requirements govern.

§ 4-33-142 Reserved

[Reserved] – § 4-33-149

§ 4-33-150 Internal Revenue section 501(c)(3) — Organizations and private foundations.

(a) Notwithstanding any provision of Arkansas law or in the articles of incorporation to the contrary, the articles of incorporation of each corporation organized under this chapter which is an exempt charitable, religious, literary, educational, or scientific organization as described in section 501(c)(3) of the Internal Revenue Code of 1986 shall be deemed to contain the following provisions: “Upon the dissolution of the corporation, the board of directors shall, after paying or making provision for the payment of all of the liabilities of the corporation, dispose of all of the assets of the corporation exclusively for the purposes of the corporation in such manner, or to such charitable, educational, religious, literary, or scientific purposes as shall at the time qualify as an exempt organization or organizations under section 501(c)(3) of the Internal Revenue Code of 1986, or the corresponding provision of any future United States Internal Revenue Law, as the board of trustees shall determine. Any such assets not so disposed of shall be disposed of by the circuit court of the county in which the principal office of the corporation is then located, exclusively for such purposes or to such organization or organizations, as said court shall determine, which are organized and operated exclusively for such purposes.”

(b) Notwithstanding any provision of Arkansas law or in the articles of incorporation to the contrary, the articles of incorporation of each corporation which is subject to this chapter and which is a private foundation as defined in section 509(a) of the Internal Revenue Code of 1986 shall be deemed to contain the following provisions:

(1) shall distribute such amounts for each taxable year at such time and in such manner as not to subject the corporation to tax under section 4942 of the Code.

(2) shall not engage in any act of self-dealing as defined in section 4941(d) of the Code.

(3) shall not retain any excess business holdings as defined in section 4943(c) of the Code.

(4) shall not make any taxable expenditures as defined in section 4944 of the Code.

(5) shall not make any taxable expenditures as defined in section 4945(d) of the Code.

(c) The articles of incorporation of any corporation described in subsection (b) of this section may be amended to expressly exclude the application of subsection (b) and in the event of such amendment, subsection (b) shall not apply to that corporation. All references in this section to sections of the Code shall be to such sections of the Internal Revenue Code of 1986 as amended from time to time, or to corresponding provisions of subsequent internal revenue laws of the United States.

§ 4-33-151 Reserved

[Reserved] – § 4-33-159

§ 4-33-160 Judicial relief.

(a) If for any reason it is impractical or impossible for any corporation to call or conduct a meeting of its members, delegates, or directors, or otherwise obtain their consent, in the manner prescribed by its articles, bylaws, or this chapter, then upon petition of a director, officer, delegate, or member, a circuit court sitting in the county of the principal office of the corporation may order that such a meeting be called or that a written ballot or other form of obtaining the vote of members, delegates, or directors be authorized, in such a manner as the court finds fair and equitable under the circumstances.

(b) The court shall, in an order issued pursuant to this section, provide for a method of notice reasonably designed to give actual notice to all persons who would be entitled to notice of a meeting held pursuant to the articles, bylaws and this chapter, whether or not the method results in actual notice to all such persons or conforms to the notice requirements that would otherwise apply. In a proceeding under this section the court may determine who the members or directors are.

(c) The order issued pursuant to this section may dispense with any requirement relating to the holding of or voting at meetings or obtaining votes, including any requirement as to quorums or as to the number or percentage of votes needed for approval, that would otherwise be imposed by the articles, bylaws, or this chapter.

(d) Whenever practical any order issued pursuant to this section shall limit the subject matter of meetings or other forms of consent authorized to items, including amendments to the articles or bylaws, the resolution of which will or may enable the corporation to continue managing its affairs without further resort to this section; provided, however, that an order under this section may also authorize the obtaining of whatever votes and approvals are necessary for the dissolution, merger or sale of assets.

(e) Any meeting or other method of obtaining the vote of members, delegates, or directors conducted pursuant to an order issued under this section, and that complies with all the provisions of such order, is for all purposes a valid meeting or vote, as the case may be, and shall have the same force and effect as if it complied with every requirement imposed by the articles, bylaws and this chapter.

§ 4-33-161 Reserved

[Reserved] – § 4-33-169

§ 4-33-170 Reserved

[Reserved] – § 4-33-179

§ 4-33-180 Religious corporations — Constitutional protections.

If religious doctrine governing the affairs of a religious corporation is inconsistent with the provisions of this chapter on the same subject, the religious doctrine shall control to the extent required by the Constitution of the United States or the constitution of this state or both.

§ 4-33-201 Incorporators.

One (1) or more persons may act as the incorporator or incorporators of a corporation by delivering articles of incorporation to the Secretary of State for filing.

§ 4-33-202 Articles of incorporation.

(a) The articles of incorporation must set forth:

(1) a corporate name for the corporation that satisfies the requirements of § 4-33-401;

(2) one (1) of the following statements:

(i) this corporation is a public benefit corporation;

(ii) this corporation is a mutual benefit corporation; or

(iii) this corporation is a religious corporation;

(3) the information required by § 4-20-105(a);

(4) the name and address of each incorporator;

(5) whether or not the corporation will have members;

(6) provisions not inconsistent with law regarding the distribution of assets on dissolution; and

(7) if converting to a nonprofit corporation from another form of entity, then the articles of incorporation shall include:

(A) a statement that the corporation:

(i) is a nonprofit corporation; and

(ii) has converted under the Arkansas Nonprofit Corporation Act of 1993, § 4-33-101 et seq.;

(B)(i) a description of the treatment of shares of stock.

(ii) the description of the treatment of shares of stock:

(a) may provide for the repurchase or exchange of shares of stock for certificates of membership if the corporation has members, and if the shares are repurchased, then the nonprofit corporation shall cancel the shares; or

(b) shall provide that the shares of stock be canceled by the board of directors if the corporation does not have members; and

(C) a statement that the Internal Revenue Service has been notified or will be notified within a reasonable time of the conversion and federal regulations were followed regarding the conversion.

(b) The articles of incorporation may set forth:

(1) the purpose or purposes for which the corporation is organized, which may be, either alone or in combination with other purposes, the transaction of any lawful activity;

(2) the names and addresses of the individuals who are to serve as the initial directors;

(3) provisions not inconsistent with law regarding:

(i) managing and regulating the affairs of the corporation;

(ii) defining, limiting, and regulating the powers of the corporation, its board of directors and members (or any class of members); and

(iii) the characteristics, qualifications, rights, limitations and obligations attaching to each or any class of members; and

(4) any provision that under this chapter is required or permitted to be set forth in the bylaws.

(c)(1) Each incorporator named in the articles must sign the articles.

(2) If an entity is a for-profit corporation that is converting to a nonprofit corporation, the conversion shall be approved by a three-fourths (¾) vote of the shareholders of the business corporation.

(d) The articles of incorporation need not set forth any of the corporate powers enumerated in this chapter.

(e) A for-profit corporation may convert to a nonprofit corporation under the Arkansas Nonprofit Corporation Act, §§ 4-28-201 — 4-28-206 and 4-28-209 — 4-28-224, or the Arkansas Nonprofit Corporation Act of 1993, § 4-33-101 et seq., upon the filing of an amendment to the corporation's articles of incorporation with the information required under this section.

(f) A conversion to a nonprofit corporation under this chapter is effective when an amendment to the articles of incorporation is filed with the Secretary of State and the Secretary of State has collected the filing fees, service fees, and copying fees required under § 4-33-122.

§ 4-33-203 Incorporation.

(a) Unless a delayed effective date is specified, the corporate existence begins when the articles of incorporation are filed.

(b) The Secretary of State's filing of the articles of incorporation is conclusive proof that the incorporation satisfied all conditions precedent to incorporation except in a proceeding by the state to cancel or revoke the incorporation or involuntarily dissolve the corporation.

§ 4-33-204 Liability for preincorporation transactions.

All persons purporting to act as or on behalf of a corporation, knowing there was no incorporation under this chapter, are jointly and severally liable for all liabilities created while so acting.

§ 4-33-205 Organization of corporation.

(a) After incorporation:

(1) if initial directors are named in the articles of incorporation, the initial directors shall hold an organizational meeting, at the call of a majority of the directors, to complete the organization of the corporation by appointing officers, adopting bylaws, and carrying on any other business brought before the meeting;

(2) if initial directors are not named in the articles, the incorporator or incorporators shall hold an organizational meeting at the call of a majority of the incorporators:

(i) to elect directors and complete the organization of the corporation; or

(ii) to elect a board of directors who shall complete the organization of the corporation.

(b) Action required or permitted by this chapter to be taken by incorporators at an organizational meeting may be taken without a meeting if the action taken is evidenced by one (1) or more written consents describing the action taken and signed by each incorporator.

§ 4-33-206 Bylaws.

(a) The incorporators or board of directors of a corporation shall adopt bylaws for the corporation.

(b) The bylaws may contain any provision for regulating and managing the affairs of the corporation that is not inconsistent with law or the articles of incorporation.

§ 4-33-207 Emergency bylaws and powers.

(a) Unless the articles provide otherwise the directors of a corporation may adopt, amend or repeal bylaws to be effective only in an emergency defined in subsection (d) of this section. The emergency bylaws, which are subject to amendment or repeal by the members, may provide special procedures necessary for managing the corporation during the emergency, including:

(1) how to call a meeting of the board;

(2) quorum requirements for the meeting; and

(3) designation of additional or substitute directors.

(b) All provisions of the regular bylaws consistent with the emergency bylaws remain effective during the emergency. The emergency bylaws are not effective after the emergency ends.

(1) binds the corporation; and

(2) may not be used to impose liability on a corporate director, officer, employee, or agent.

(d) An emergency exists for purposes of this section if a quorum of the corporation's directors cannot readily be assembled because of some catastrophic event.

§ 4-33-301 Purposes.

(a) Every corporation incorporated under this chapter has the purpose of engaging in any lawful activity unless a more limited purpose is set forth in the articles of incorporation.

(b) A corporation engaging in an activity that is subject to regulation under another statute of this state may incorporate under this chapter only if incorporation under this chapter is not prohibited by the other statute. The corporation shall be subject to all limitations of the other statute.

§ 4-33-302 General powers.

Unless its articles of incorporation provide otherwise, every corporation has perpetual duration and succession in its corporate name and has the same powers as an individual to do all things necessary or convenient to carry out its affairs including, without limitation, power:

(1) to sue and be sued, complain and defend in its corporate names;

(2) to have a corporate seal, which may be altered at will, and to use it, or a facsimile of it, by impressing or affixing or in any other manner reproducing it;

(3) to make and amend bylaws not inconsistent with its articles of incorporation or with the laws of this state, for regulating and managing the affairs of the corporation;

(4) to purchase, receive, lease, or otherwise acquire, and own, hold, improve, use, and otherwise deal with, real or personal property, or any legal or equitable interest in property, wherever located;

(5) to sell, convey, mortgage, pledge, lease, exchange, and otherwise dispose of all or any part of its property;

(6) to purchase, receive, subscribe for, or otherwise acquire, own, hold, vote, use, sell, mortgage, lend, pledge, or otherwise dispose of, and deal in and with, shares or other interests in, or obligations of any entity;

(7) to make contracts and guaranties, incur liabilities, borrow money, issue notes, bonds, and other obligations, and secure any of its obligations by mortgage or pledge of any of its property, franchises, or income;

(8) to lend money, invest and revest its funds, and receive and hold real and personal property as security for repayment, except as limited by § 4-33-832;

(9) to be a promoter, partner, member, associate or manager of any partnership, joint venture, trust or other entity;

(10) to conduct its activities, locate offices, and exercise the powers granted by this chapter within or without this state;

(11) to elect or appoint directors, officers, employees, and agents of the corporation, define their duties, and fix their compensation;

(12) to pay pensions and establish pension plans, pension trusts, and other benefit and incentive plans for any or all of its current or former directors, officers, employees, and agents;

(13) to make donations not inconsistent with law for the public welfare or for charitable, religious, scientific, or educational purposes and for other purposes that further the corporate interest;

(14) to impose dues, assessments, admission and transfer fees upon its members;

(15) to establish conditions for admission of members, admit members and issue memberships;

(16) to carry on a business;

(17) to serve as a trustee of a trust in which it or an entity affiliated by common program or purpose has a beneficial interest; and

(18) to do all things necessary or convenient, not inconsistent with law, to further the activities and affairs of the corporation.

§ 4-33-303 Emergency powers.

(a) In anticipation of or during an emergency defined in subsection (d) of this section, the board of directors of a corporation may:

(1) modify lines of succession to accommodate the incapacity of any director, officer, employee, or agent; and

(2) relocate the principal office, designate alternative principal offices or regional offices, or authorize the officer to do so.

(b) During an emergency defined in subsection (d) of this section, unless emergency bylaws provide otherwise:

(1) notice of a meeting of the board of directors need be given only to those directors it is practicable to reach and may be given in any practicable manner, including by publication and radio; and

(2) one (1) or more officers of the corporation present at a meeting of the board of directors may be deemed to be directors for the meeting, in order of rank and within the same rank in order of seniority, as necessary to achieve a quorum.

(c) Corporate action taken in good faith during an emergency under this section to further the ordinary affairs of the corporation:

(1) binds the corporation; and

(2) may not be used to impose liability on a corporate director, officer, employee, or agent.

(d) An emergency exists for purposes of this section if a quorum of the corporation's directors cannot readily be assembled because of some catastrophic event.

§ 4-33-304 Ultra vires.

(a) Except as provided in subsection (b) of this section, the validity of corporate action may not be challenged on the ground that the corporation lacks or lacked power to act.

(b) A corporation's power to act may be challenged in a proceeding against the corporation to enjoin an act where a third party has not acquired rights. The proceeding may be brought by the Attorney General, a director, or by a member or members in a derivative proceeding.

(c) A corporation's power to act may be challenged in a proceeding against an incumbent or former director, officer, employee or agent of the corporation. The proceeding may be brought by a director, the corporation, directly, derivatively, or through a receiver, a trustee or other legal representative, or in the case of a public benefit corporation, by the Attorney General.

§ 4-33-401 Corporate name.

(a) A corporate name may not contain language stating or implying that the corporation is organized for a purpose other than that permitted by § 4-33-301 and its articles of incorporation.

(b) Except as authorized by subsections (c), (d), and (e) of this section, a corporate name must be distinguishable upon the records of the Secretary of State from:

(1) the corporate name of a nonprofit or business corporation incorporated or authorized to do business in this state;

(2) a corporate name reserved or registered under § 4-33-402 or § 4-33-403 of this chapter or § 4-26- 402 or § 4-27-402; or

(3) the fictitious name of a foreign business or nonprofit corporation authorized to transact business in this state because its real name is unavailable.

(c) In determining whether or not a corporate name is distinguishable under subsection (b) of this section, a corporate name that is different from the name of another entity or filing is distinguishable unless the only difference is one (1) or more of the following:

(1) a suffix;

(2) a definite or indefinite article;

(3) the word “and” and the symbol “&”;

(4) the singular, plural, or possessive form of a word; or

(5) a punctuation mark or a symbol.

(d) A corporation may apply to the Secretary of State for authorization to use a name that is not distinguishable upon the Secretary of State's records from one (1) or more of the names described in subsection (b) of this section. 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 form satisfactory to the Secretary of State to change its 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 this state.

(e) A corporation may use the name (including the fictitious name) of another domestic or foreign business or nonprofit corporation that is used in this state if the other corporation is incorporated or authorized to do business in this state and the proposed user corporation:

(1) has merged with the other corporation;

(2) has been formed by reorganization of the other corporation; or

(3) has acquired all or substantially all of the assets, including the corporate name, of the other corporation.

(f) This chapter does not control the use of fictitious names.

§ 4-33-402 Reserved name.

(a) A person may reserve the exclusive use of a corporate name, including a fictitious name for a foreign corporation whose corporate name is not available by delivering an application to the Secretary of State for filing. Upon finding that the corporate name applied for is available, the Secretary of State shall reserve the name for the applicant's exclusive use for a nonrenewable one hundred twenty-day period.

(b) The owner of a reserved corporate name may transfer the reservation to another person by delivering to the Secretary of State a signed notice of the transfer that states the name and address of the transferee.

§ 4-33-403 Registered name.

(a) A foreign corporation may register its corporate name, or its corporate name with any change required by § 4-33-1506, if the name is distinguishable upon the records of the Secretary of State from:

(1) the corporate name of a nonprofit or business corporation incorporated or authorized to do business in this state; and

(2) a corporate name reserved under § 4-33-402 or § 4-26-402 or § 4-27-402 or registered under this section.

(b) A foreign corporation registers its corporate name, or its corporate name with any change required by § 4-33-1506 by delivering to the Secretary of State an application:

(1) setting forth its corporate name, or its corporate name with any change required by § 4-33-1506, the state or country and date of its incorporation, and a brief description of the nature of the activities in which it is engaged; and

(2) accompanied by a certificate of existence (or a document of similar import) from the state or country of incorporation.

(d) A foreign corporation whose registration is effective may renew it for successive years by delivering to the Secretary of State for filing a renewal application, which complies with the requirements of subsection (b) of this section, between October 1 and December 31 of the preceding year. The renewal application renews the registration for the following calendar year.

(e) A foreign corporation whose registration is effective may thereafter qualify as a foreign corporation under that name or consent in writing to the use of that name by a corporation thereafter incorporated under this chapter or by another foreign corporation thereafter authorized to transact business in this state. The registration terminates when the domestic corporation is incorporated or the foreign corporation qualifies or consents to the qualification of another foreign corporation under the registered name.

§ 4-33-501 Repealed

[Repealed] – § 4-33-504

§ 4-33-601 Admission.

(a) The articles or bylaws may establish criteria or procedures for admission of members.

(b) No person shall be admitted as a member without his or her consent.

§ 4-33-602 Consideration.

Except as provided in its articles or bylaws, a corporation may admit members for no consideration or for such consideration as is determined by the board.

§ 4-33-603 No requirement of members.

A corporation is not required to have members.

§ 4-33-604 Reserved

[Reserved] – § 4-33-609

§ 4-33-610 Differences in rights and obligations of members.

All members shall have the same rights and obligations with respect to voting, dissolution, redemption and transfer, unless the articles or bylaws establish classes of membership with different rights or obligations. All members shall have the same rights and obligations with respect to any other matters, except as set forth in or authorized by the articles or bylaws.

§ 4-33-611 Transfers.

(a) Except as set forth in or authorized by the articles or bylaws, no member of a mutual benefit corporation may transfer a membership or any right arising therefrom.

(b) No member of a public benefit or religious corporation may transfer a membership or any right arising therefrom.

(c) Where transfer rights have been provided, no restriction on them shall be binding with respect to a member holding a membership issued prior to the adoption of the restriction unless the restriction is approved by the members and the affected member.

§ 4-33-612 Member's liability to third parties.

A member of a corporation is not, as such, personally liable for the acts, debts, liabilities, or obligations of the corporation.

§ 4-33-613 Member's liability for dues, assessments and fees.

A member may become liable to the corporation for dues, assessments or fees; provided, however, that an article or bylaw provision or a resolution adopted by the board authorizing or imposing dues, assessments or fees does not, of itself, create liability.

§ 4-33-614 Creditor's action against member.

(a) No proceeding may be brought by a creditor to reach the liability, if any, of a member to the corporation unless final judgment has been rendered in favor of the creditor against the corporation and execution has been returned unsatisfied in whole or in part or unless such proceeding would be useless.

(b) All creditors of the corporation, with or without reducing their claims to judgment, may intervene in any creditor's proceeding brought under subdivision (a) of this section to reach and apply unpaid amounts due the corporation. Any or all members who owe amounts to the corporation may be joined in such proceeding.

§ 4-33-615 Reserved

[Reserved] – § 4-33-619

§ 4-33-620 Resignation.

(a) A member may resign at any time.

(b) The resignation of a member does not relieve the member from any obligations the member may have to the corporation as a result of obligations incurred or commitments made prior to resignation.

§ 4-33-621 Termination, expulsion and suspension.

(a) No member of a public benefit or mutual benefit corporation may be expelled or suspended, and no membership or memberships in such corporations may be terminated or suspended except pursuant to a procedure that is fair and reasonable and is carried out in good faith.

(b) A procedure is fair and reasonable when either:

(1) the articles or bylaws set forth a procedure that provides:

(i) not less than fifteen (15) days prior written notice of the expulsion, suspension or termination and the reasons therefor; and

(ii) an opportunity for the member to be heard, orally or in writing, not less than five (5) days before the effective date of the expulsion, suspension or termination by a person or persons authorized to decide that the proposed expulsion, termination or suspension not take place; or

(2) it is fair and reasonable taking into consideration all of the relevant facts and circumstances.

(c) Any written notice given by mail must be given by first-class or certified mail sent to the last address of the member shown on the corporation's records.

(d) Any proceeding challenging an expulsion, suspension or termination, including a proceeding in which defective notice is alleged, must be commenced within one (1) year after the effective date of the expulsion, suspension or termination.

(e) A member who has been expelled or suspended may be liable to the corporation for dues, assessments or fees as a result of obligations incurred or commitments made prior to expulsion or suspension.

§ 4-33-622 Purchase of memberships.

(a) A public benefit or religious corporation may not purchase any of its memberships or any right arising therefrom.

(b) A mutual benefit corporation may purchase the membership of a member who resigns or whose membership is terminated for the amount and pursuant to the conditions set forth in or authorized by its articles or bylaws. No payment shall be made in violation of §§ 4-33-1301 et seq.

§ 4-33-623 Reserved

[Reserved] – § 4-33-629

§ 4-33-630 Reserved

[Reserved] – § 4-33-639

§ 4-33-640 Delegates.

(a) A corporation may provide in its articles or bylaws for delegates having some or all of the authority of members.

(b) The articles or bylaws may set forth provisions relating to:

(1) the characteristics, qualifications, rights, limitation and obligations of delegates including their selection and removal;

(2) calling, noticing, holding and conducting meetings of delegates; and

(3) carrying on corporate activities during and between meetings of delegates.

§ 4-33-701 Annual and regular meetings.

(a) A corporation with members shall hold a membership meeting annually at a time stated in or fixed in accordance with the bylaws.

(b) A corporation with members may hold regular membership meetings at times stated in or fixed in accordance with the bylaws.

(c) Annual and regular membership meetings may be held in or out of this state at the place stated in or fixed in accordance with the bylaws. If no place is stated in or fixed in accordance with the bylaws, annual and regular meetings shall be held at the corporation's principal office.

(d) At the annual meeting:

(1) The president and chief financial officer shall report on the activities and financial condition of the corporation; and

(2) The members shall consider and act upon such other matters as may be raised consistent with the notice requirements of § 4-33-705.

(e) At regular meetings the members shall consider and act upon such matters as may be raised consistent with the notice requirements of § 4-33-705.

(f) The failure to hold an annual or regular meeting at a time stated in or fixed in accordance with a corporation's bylaws does not affect the validity of any corporate action.

§ 4-33-702 Special meeting.

(a) A corporation with members shall hold a special meeting of members:

(1) on call of its board or the person or persons authorized to do so by the articles or bylaws; or

(2) except as provided in the articles or bylaws of a religious corporation if the holders of at least five percent (5%) of the voting power of any corporation sign, date, and deliver to any corporate officer one

(1) or more written demands for the meeting describing the purpose or purposes for which it is to be held.

(b) The close of business on the thirtieth day before delivery of the demand or demands for a special meeting to any corporate officer is the record date for the purpose of determining whether the five percent (5%) requirement of subsection (a) has been met.

(c) If a notice for a special meeting demanded under subsection (a)(2) of this section is not given pursuant to § 4-33-705 within thirty days after the date the written demand or demands are delivered to a corporate officer, regardless of the requirements of subsection (d) of this section, a person signing the demand or demands may set the time and place of the meeting and give notice pursuant to § 4-33-705.

(d) Special meetings of members may be held in or out of this state at the place stated in or fixed in accordance with the bylaws. If no place is stated or fixed in accordance with the bylaws, special meetings shall be held at the corporation's principal office.

(e) Only those matters that are within the purpose or purposes described in the meeting notice required by § 4-33-705 may be conducted at a special meeting of members.

§ 4-33-703 Court-ordered meeting.

(a) The circuit court of the county where a corporation's principal office is located or the Pulaski County Circuit Court, if the corporation does not have a principal office in this state, may summarily order a meeting to be held:

(1) on application of any member or other person entitled to participate in an annual or regular meeting, if an annual meeting was not held within the earlier of six (6) months after the end of the corporation's fiscal year or fifteen (15) months after its last annual meeting; or

(2) on application of any member or other person entitled to participate in a regular meeting, if a regular meeting is not held within forty (40) days after the date it was required to be held; or

(3) on application of a member who signed a demand for a special meeting valid under § 4-33-702 or a person or persons entitled to call a special meeting, if:

(i) notice of the special meeting was not given within thirty (30) days after the date the demand was delivered to a corporate officer; or

(ii) the special meeting was not held in accordance with the notice.

(b) The court may fix the time and place of the meeting, specify a record date for determining members entitled to notice of and to vote at the meeting, prescribe the form and content of the meeting notice, fix the quorum required for specific matters to be considered at the meeting (or direct that the votes represented at the meeting constitute a quorum for action on those matters), and enter other orders necessary to accomplish the purpose or purposes of the meeting.

(c) If the court orders a meeting, it may also order the corporation to pay the member's costs (including reasonable counsel fees) incurred to obtain the order.

§ 4-33-704 Action by written consent.

(a)(1) Unless limited or prohibited by the articles or bylaws, action required or permitted by this chapter to be approved by the members may be approved without a meeting of members if the action is approved by members holding at least eighty percent (80%) of the voting power.

(2) The action must be evidenced by one (1) or more written consents describing the action taken, signed by those members representing at least eighty percent (80%) of the voting power, and delivered to the corporation for inclusion in the minutes or filing with the corporate records.

(b) If not otherwise determined under § 4-33-703 or § 4-33-707, the record date for determining members entitled to take action without a meeting is the date the first member signs the consent under subsection (a) of this section.

(c) A consent signed under this section has the effect of a meeting vote and may be described as such in any document filed with the Secretary of State.

(d)(1) Written notice of member approval pursuant to this section shall be given to all members who have not signed the written consent.

(2) If written notice is required, member approval pursuant to this section shall be effective ten (10) days after such written notice is given.

(e)(1) The signature of a member may be affixed to a written consent by any reasonable means, including without limitation facsimile signature or electronic image.

(2) The written consent may be delivered to the corporation by electronic communication, including without limitation facsimile transmission or electronic mail.

§ 4-33-705 Notice of meeting.

(a) A corporation shall give notice consistent with its bylaws of meetings of members in a fair and reasonable manner.

(b) Any notice that conforms to the requirements of subsection (c) of this section is fair and reasonable, but other means of giving notice may also be fair and reasonable when all the circumstances are considered; provided, however, that notice of matters referred to in subsection (c)(2) of this section must be given as provided in subsection (c) of this section.

(1) the corporation notifies its members of the place, date, and time of each annual, regular and special meeting of members no fewer than ten (10) (or if notice is mailed by other than first class or registered mail, thirty (30)) nor more than sixty (60) days before the meeting date;

(2) notice of an annual or regular meeting includes a description of any matter or matters that must be approved by the members under §§ 4-33-831, 4-33-856, 4-33-1003, 4-33-1021, 4-33-1104, 4-33-1202, 4-33-1401, or 4-33-1402; and

(3) notice of a special meeting includes a description of the matter or matters for which the meeting is called.

(d) Unless the bylaws require otherwise, if an annual, regular or special meeting of members is adjourned to a different date, time or place, notice need not be given of the new date, time or place, if the new date, time or place is announced at the meeting before adjournment. If a new record date for the adjourned meeting is or must be fixed under § 4-33-707, however, notice of the adjourned meeting must be given under this section to the members of record as of the new record date.

(e) When giving notice of an annual, regular or special meeting of members, a corporation shall give notice of a matter a member intends to raise at the meeting if: (1) requested in writing to do so by a person entitled to call a special meeting; and (2) the request is received by the secretary or president of the corporation at least ten (10) days before the corporation gives notice of the meeting.

§ 4-33-706 Waiver of notice.

(a)(1) A member may waive any notice required by this chapter, the articles, or bylaws before or after the date and time stated in the notice.

(2) The waiver must be in writing, be signed by the member entitled to the notice, and be delivered to the corporation for inclusion in the minutes or filing with the corporate records.

(b) A member's attendance at a meeting:

(1) Waives objection to lack of notice or defective notice of the meeting, unless the member at the beginning of the meeting objects to holding the meeting or transacting business at the meeting; and

(2) Waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the member objects to considering the matter when it is presented.

(c)(1) The signature of a member may be affixed to a waiver of notice by any reasonable means, including without limitation facsimile signature or electronic image.

(2) The waiver of notice may be delivered to the corporation by electronic communication, including without limitation facsimile transmission or electronic mail.

§ 4-33-707 Record date — Determining members entitled to notice and vote.

(a) The bylaws of a corporation may fix or provide the manner of fixing a date as the record date for determining the members entitled to notice of a members' meeting. If the bylaws do not fix or provide for fixing such a record date, the board may fix a future date as such a record date. If no such record date is fixed, members at the close of business on the business day preceding the day on which notice is given, or if notice is waived, at the close of business on the business day preceding the day on which the meeting is held, are entitled to notice of the meeting.

(b) The bylaws of a corporation may fix or provide the manner of fixing a date as the record date for determining the members entitled to vote at a members' meeting. If the bylaws do not fix or provide for fixing such a record date, the board may fix a future date as such a record date. If no such record date is fixed, members on the date of the meeting who are otherwise eligible to vote are entitled to vote at the meeting.

(c) The bylaws may fix or provide the manner for determining a date as the record date for the purpose of determining the members entitled to exercise any rights in respect of any other lawful action. If the bylaws do not fix or provide for fixing such a record date, the board may fix in advance such a record date. If no such record date is fixed, members at the close of business on the day on which the board adopts the resolution relating thereto, or the sixtieth day prior to the date of such other action, whichever is later, are entitled to exercise such rights.

(d) A record date fixed under this section may not be more than seventy (70) days before the meeting or action requiring a determination of members occurs.

(e) A determination of members entitled to notice of or to vote at a membership meeting is effective for any adjournment of the meeting unless the board fixes a new date for determining the right to notice or the right to vote, which it must do if the meeting is adjourned to a date more than seventy (70) days after the record date for determining members entitled to notice of the original meeting.

(f) If a court orders a meeting adjourned to a date more than one hundred twenty (120) days after the date fixed for the original meeting, it may provide that the original record date for notice or voting continues in effect or it may fix a new record date for notice or voting.

§ 4-33-708 Action by written ballot.

(a) Unless prohibited or limited by the articles or bylaws, any action that may be taken at any annual, regular, or special meeting of members may be taken without a meeting if the corporation delivers a written ballot to every member entitled to vote on the matter.

(b) A written ballot shall:

(1) set forth each proposed action; and

(2) provide an opportunity to vote for or against each proposed action.

(c) Approval by written ballot pursuant to this section shall be valid only when the number of votes cast by ballot equals or exceeds the quorum required to be present at a meeting authorizing the action and the number of approvals equals or exceeds the number of votes that would be required to approve the matter at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot.

(d) All solicitations for votes by written ballot shall:

(1) indicate the number of responses needed to meet the quorum requirements;

(2) state the percentage of approvals necessary to approve each matter other than election of directors; and

(3) specify the time by which a ballot must be received by the corporation in order to be counted.

(e) Except as otherwise provided in the articles or bylaws, a written ballot may not be revoked.

(f)(1) The signature of a member may be affixed to a written ballot by any reasonable means, including without limitation facsimile signature or electronic image.

(2) The written ballot may be delivered to the corporation by electronic communication, including without limitation facsimile transmission or electronic mail.

§ 4-33-709 Reserved

[Reserved] – § 4-33-719

§ 4-33-720 Members' list for meeting.

(a) After fixing a record date for a notice of a meeting, a corporation shall prepare an alphabetical list of the names of all its members who are entitled to notice of the meeting. The list must show the address and number of votes each member is entitled to vote at the meeting. The corporation shall prepare on a current basis through the time of the membership meeting a list of members, if any, who are entitled to vote at the meeting, but not entitled to notice of the meeting. This list shall be prepared on the same basis and be part of the list of members.

(b) The list of members must be available for inspection by any member for the purpose of communication with other members concerning the meeting, beginning two (2) business days after notice is given of the meeting for which the list was prepared and continuing through the meeting, at the corporation's principal office or at a reasonable place identified in the meeting notice in the city where the meeting will be held. A member, a member's agent, or attorney is entitled on written demand to inspect and, subject to the limitations of subsection (d) of this section, to copy the list, at a reasonable time and at the member's expense, during the period it is available for inspection.

(c) The corporation shall make the list of members available at the meeting, and any member, a member's agent, or attorney is entitled to inspect the list at any time during the meeting or any adjournment.

(d) Without consent of the board, a membership list or any part thereof may not be obtained or used by any person for any purpose unrelated to a member's interest as a member. Without limiting the generality of the foregoing, or without the consent of the board a membership list or any part thereof may not be:

(1) used to solicit money or property unless such money or property will be used solely to solicit the votes of the members in an election to be held by the corporation;

(2) used for any commercial purpose; or

(3) sold to or purchased by any person.

(e) The articles or bylaws of a religious corporation may limit or abolish the rights of a member under this section to inspect and copy any corporate record.

§ 4-33-721 Voting entitlement generally.

(a) Unless the articles or bylaws provide otherwise, each member is entitled to one (1) vote on each matter voted on by the members. When more than one (1) membership is held by a single entity, the member shall be entitled to one (1) vote for each such membership.

(b) Unless the articles or bylaws provide otherwise, if a membership stands of record in the names of two (2) or more persons, their acts with respect to voting shall have the following effect:

(1) if only one (1) votes, such act binds all; and

(2) if more than one (1) votes, the vote shall be divided on a prorata basis.

§ 4-33-722 Quorum requirements.

(a) Unless this chapter, the articles, or bylaws provide for a higher or lower quorum, ten percent (10%) of the votes entitled to be cast on a matter must be represented at a meeting of members to constitute a quorum on that matter.

(b) A bylaw amendment to decrease the quorum for any member action may be approved by the members or, unless prohibited by the bylaws, by the board.

(d) Unless one-third ( ⅓ ) or more of the voting power is present in person or by proxy, the only matters that may be voted upon at an annual or regular meeting of members are those matters that are described in the meeting notice.

§ 4-33-723 Voting requirements.

(a) Unless this chapter, the articles, or the bylaws require a greater vote or voting by class, if a quorum is present, the affirmative vote of the votes represented and voting (which affirmative votes also constitute a majority of the required quorum) is the act of the members.

(b) A bylaw amendment to increase or decrease the vote required for any member action must be approved by the members.

§ 4-33-724 Proxies.

(a) Unless the articles or bylaws prohibit or limit proxy voting, a member may appoint a proxy to vote or otherwise act for the member by signing an appointment form either personally or by an attorney-in-fact.

(b)(1) An appointment of a proxy is effective when received by the secretary or other officer or agent authorized to tabulate votes.

(2) An appointment is valid for eleven (11) months unless a different period is expressly provided in the appointment form; provided however, that no proxy shall be valid for more than three (3) years from its date of execution.

(d) The death or incapacity of the member appointing a proxy does not affect the right of the corporation to accept the proxy's authority unless notice of the death or incapacity is received by the secretary or other officer or agent authorized to tabulate votes before the proxy exercises authority under the appointment.

(e) Appointment of a proxy is revoked by the person appointing the proxy:

(1) attending any meeting and voting in person; or

(2) signing and delivering to the secretary or other officer or agent authorized to tabulate proxy votes either a writing stating that the appointment of the proxy is revoked or a subsequent appointment form.

(f) Subject to § 4-33-727 and any express limitation on the proxy's authority appearing on the face of the appointment form, a corporation is entitled to accept the proxy's vote or other action as that of the member making the appointment.

(g)(1) The signature of a member or the member's attorney-in-fact may be affixed to a proxy appointment form, a proxy revocation, or a subsequent appointment by any reasonable means, including without limitation facsimile signature or electronic image.

(2) The written ballot may be delivered to the secretary or other officer or agent authorized to tabulate votes by electronic communication, including without limitation facsimile transmission or electronic mail.

§ 4-33-725 Cumulative voting for directors.

(a) If the articles or bylaws provide for cumulative voting by members, members may so vote, by multiplying the number of votes the members are entitled to cast by the number of directors for whom they are entitled to vote, and cast the product for a single candidate or distribute the product among two

(2) or more candidates.

(b) Cumulative voting is not authorized at a particular meeting unless:

(1) the meeting notice or statement accompanying the notice states that cumulative voting will take place; or

(2) a member gives notice during the meeting and before the vote is taken of the member's intent to cumulate votes, and if one (1) member gives this notice all other members participating in the election are entitled to cumulate their votes without giving further notice.

(c) A director elected by cumulative voting may be removed by the members without cause if the requirements of § 4-33-808 are met unless the votes cast against removal, or not consenting in writing in such removal, would be sufficient to elect such director if voted cumulatively at an election at which the same total number of votes were cast (or, if such action is taken by written ballot, all memberships entitled to vote were voted) and the entire number of directors authorized at the time of the director's most recent election were then being elected.

(d) Members may not cumulatively vote if the directors and members are identical.

§ 4-33-726 Other methods of electing directors.

A corporation may provide in its articles or bylaws for election of directors by members or delegates: (1) on the basis of chapter or other organizational unit; (2) by region or other geographic unit; (3) by preferential voting; or (4) by any other reasonable method.

§ 4-33-727 Corporation's acceptance of votes.

(a) If the name signed on a vote, consent, waiver, or proxy appointment corresponds to the name of a member, the corporation if acting in good faith is entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the member.

(b) If the name signed on a vote, consent, waiver, or proxy appointment does not correspond to the record name of a member, the corporation if acting in good faith is nevertheless entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the member if:

(1) the member is an entity and the name signed purports to be that of an officer or agent of the entity;

(2) the name signed purports to be that of an attorney-in-fact of the member and if the corporation requests, evidence acceptable to the corporation of the signatory's authority to sign for the member has been presented with respect to the vote, consent, waiver, or proxy appointment;

(3) two (2) or more persons hold the membership as cotenants or fiduciaries and the name signed purports to be the name of at least one (1) of the coholders and the person signing appears to be acting on behalf of all the coholders; and

(4) in the case of a mutual benefit corporation:

(i) the name signed purports to be that of an administrator, executor, guardian, or conservator representing the member and, if the corporation requests, evidence of fiduciary status acceptable to the corporation has been presented with respect to the vote, consent, waiver, or proxy appointment;

(ii) the name signed purports to be that of a receiver or trustee in bankruptcy of the member, and, if the corporation requests, evidence of this status acceptable to the corporation has been presented with respect to the vote, consent, waiver, or proxy appointment.

(c) The corporation is entitled to reject a vote, consent, waiver, or proxy appointment if the secretary or other officer or agent authorized to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory's authority to sign for the member.

(d) The corporation and its officer or agent who accepts or rejects a vote, consent, waiver, or proxy appointment in good faith and in accordance with the standards of this section are not liable in damages to the member for the consequences of the acceptance or rejection.

(e) Corporate action based on the acceptance or rejection of a vote, consent, waiver, or proxy appointment under this section is valid unless a court of competent jurisdiction determines otherwise.

§ 4-33-728 Reserved

[Reserved] – § 4-33-729

§ 4-33-730 Voting agreements.

(a) Two (2) or more members may provide for the manner in which they will vote by signing an agreement for that purpose. Such agreements may be valid for a period of up to ten (10) years. For public benefit corporations such agreements must have a reasonable purpose not inconsistent with the corporation's public or charitable purposes.

(b) A voting agreement created under this section is specifically enforceable.

§ 4-33-801 Requirement for and duties of board.

(a) Each corporation must have a board of directors.

(b) Except as provided in this chapter or subsection (c) of this section, all corporate powers shall be exercised by or under the authority of, and the affairs of the corporation managed under the direction of, its board.

(c) The articles may authorize a person or persons to exercise some or all of the powers which would otherwise be exercised by a board. To the extent so authorized any such person or persons shall have the duties and responsibilities of the directors, and the directors shall be relieved to that extent from such duties and responsibilities.

§ 4-33-802 Qualification of directors.

All directors must be individuals. The articles or bylaws may prescribe other qualifications for directors.

§ 4-33-803 Number of directors.

(a) A board of directors must consist of three (3) or more individuals, with the number specified in or fixed in accordance with the articles or bylaws.

(b) The number of directors may be increased or decreased (but to no fewer than three (3)) from time to time by amendment to or in the manner prescribed in the articles or bylaws.

§ 4-33-804 Election, designation and appointment of directors.

(a) If the corporation has members, all the directors (except the initial directors) shall be elected at the first annual meeting of members, and at each annual meeting thereafter, unless the articles or bylaws provide some other time or method of election, or provide that some of the directors are appointed by some other person or are designated. Designation occurs when the articles or bylaws name an individual as a director or designate the holder of some office or position as a director.

(b) If the corporation does not have members, all the directors (except the initial directors) shall be elected, appointed or designated as provided in the articles or bylaws. If no method of designation or appointment is set forth in the articles or bylaws, the directors (other than the initial directors) shall be elected by the board.

§ 4-33-805 Terms of directors generally.

(a) The articles or bylaws must specify the term of directors. Except for designated or appointed directors, the terms of directors may not exceed the lesser of six (6) years or the stated duration of the corporation. In the absence of any term specified in the articles or bylaws, the term of each director shall be one (1) year. Directors may be elected for successive terms, unless otherwise provided in the articles or bylaws.

(b) A decrease in the number of directors or term of office does not shorten an incumbent director's term.

(1) the term of a director filling a vacancy in the office of a director elected by members expires at the next election of directors by members; and

(2) the term of a director filling any other vacancy expires at the end of the unexpired term that such director is filling.

(d) Despite the expiration of a director's term, the director continues to serve until the director's successor is elected, designated or appointed and qualifies, or until there is a decrease in the number of directors.

§ 4-33-806 Staggered terms for directors.

The articles or bylaws may provide for staggering the terms of directors by dividing the total number of directors into groups. The terms of office of the several groups need not be uniform.

§ 4-33-807 Resignation of directors.

(a) A director may resign at any time by delivering written notice to the board of directors, its presiding officer or to the president or secretary.

(b) A resignation is effective when the notice is effective unless the notice specifies a later effective date. If a resignation is made effective at a later date, the board may fill the pending vacancy before the effective date if the board provides that the successor does not take office until the effective date.

§ 4-33-808 Removal of directors elected by members or directors.

(a) The members may remove one (1) or more directors elected by them without cause.

(b) If a director is elected by a class, chapter or other organizational unit or by region or other geographic grouping, the director may be removed only by the members of that class, chapter, unit or grouping.

(c) Except as provided in subsection (i) of this section, a director may be removed under subsection (a) of this section or (b) of this section only if the number of votes cast to remove the director would be sufficient to elect the director at a meeting to elect directors.

(d) If cumulative voting is authorized, a director may not be removed if the number of votes, or if the director was elected by a class, chapter, unit or grouping of members, the number of votes of that class, chapter, unit or grouping, sufficient to elect the director under cumulative voting is voted against the director's removal.

(e) A director elected by members may be removed by the members only at a meeting called for the purpose of removing the director and the meeting notice must state that the purpose, or one of the purposes, of the meeting is removal of the director.

(f) In computing whether a director is protected from removal under subsections (b)-(d) of this section, it should be assumed that the votes against removal are cast in an election for the number of directors of the class to which the director to be removed belonged on the date of that director's election.

(g) An entire board of directors may be removed under subsections (a)-(e) of this section.

(h) A director elected by the board may be removed without cause by the vote of a majority of the directors present at a meeting which is called for the purpose of removing the director and for which the meeting notice stated that the purpose, or one of the purposes, of the meeting is removal of the director, or by the vote of such greater number as is set forth in the articles or bylaws; provided, however, that a director elected by the board to fill the vacancy of a director elected by the members may be removed without cause by the members, but not the board.

(i) If, at the beginning of a director's term on the board, the articles or bylaws provide that the director may be removed for missing a specified number of board meetings, the board may remove the director for failing to attend the specified number of meetings. The director may be removed only if a majority of the directors present at a meeting which is called for the purpose of removing the director and for which the meeting notice stated that the purpose, or one of the purposes, of the meeting is removal of the director, vote for the removal.

(j) The articles or bylaws of a religious corporation may:

(1) limit the application of this section; and

(2) set forth the vote and procedures by which the board or any person may remove with or without cause a director elected by the members or the board.

§ 4-33-809 Removal of designated or appointed directors.

(a) A designated director may be removed by an amendment to the articles or bylaws deleting or changing the designation.

(b) Appointed directors:

(1) except as otherwise provided in the articles or bylaws, an appointed director may be removed without cause by the person appointing the director;

(2) the person removing the director shall do so by giving written notice of the removal to the director and either the presiding officer of the board or the corporation's president or secretary; and

(3) a removal is effective when the notice is effective unless the notice specifies a future effective date.

§ 4-33-810 Removal of directors by judicial proceeding.

(a) The circuit court of the county where a corporation's principal office is located may remove any director of the corporation from office in a proceeding commenced either by the corporation or its members holding at least ten percent (10%) of the voting power of any class, if the court finds that (1) the director engaged in fraudulent or dishonest conduct, or gross abuse of authority or discretion, with respect to the corporation, or a final judgment has been entered finding that the director has violated a duty set forth in §§ 4-33-830 — 4-33-833, and (2) removal is in the best interest of the corporation.

(b) The court that removes a director may bar the director from serving on the board for a period prescribed by the court.

§ 4-33-811 Vacancy on board.

(a) Unless the articles or bylaws provide otherwise, and except as provided in subsections (b) and (c) of this section, if a vacancy occurs on a board of directors, including a vacancy resulting from an increase in the number of directors:

(1) the members, if any, may fill the vacancy; if the vacant office was held by a director elected by a class, chapter or other organizational unit or by region or other geographic grouping, only members of the class, chapter, unit or grouping are entitled to vote to fill the vacancy if it is filled by the members;

(2) the board of directors may fill the vacancy; or

(3) if the directors remaining in office constitute fewer than a quorum of the board, they may fill the vacancy by the affirmative vote of a majority of all the directors remaining in office.

(b) Unless the articles or bylaws provide otherwise, if a vacant office was held by an appointed director, only the person who appointed the director may fill the vacancy.

(c) If a vacant office was held by a designated director, the vacancy shall be filled as provided in the articles or bylaws. In the absence of an applicable article or bylaw provision, the vacancy may not be filled by the board.

(d) A vacancy that will occur at a specific later date (by reason of a resignation effective at a later date under § 4-33-807(b) or otherwise) may be filled before the vacancy occurs but the new director may not take office until the vacancy occurs.

§ 4-33-812 Compensation of directors.

Unless the articles or bylaws provide otherwise, a board of directors may fix the compensation of directors.

§ 4-33-813 Reserved

[Reserved] – § 4-33-819

§ 4-33-820 Regular and special meetings.

(a) If the time and place of a directors' meeting is fixed by the bylaws or the board, the meeting is a regular meeting. All other meetings are special meetings.

(b) A board of directors may hold regular or special meetings in or out of this state.

(c) Unless the articles or bylaws provide otherwise, a board may permit any or all directors to participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting.

§ 4-33-821 Action without meeting.

(a)(1) Unless the articles or bylaws provide otherwise, action required or permitted by this chapter to be taken at a board of directors' meeting may be taken without a meeting if the action is taken by all members of the board.

(2) The action must be evidenced by one (1) or more written consents describing the action taken, signed by each director, and included in the minutes filed with the corporate records reflecting the action taken.

(b) Action taken under this section is effective when the last director signs the consent, unless the consent specifies a different effective date.

(c) The written consent may be delivered to the corporation by electronic communication, including without limitation facsimile transmission or electronic mail.

(d) A consent signed under this section has the effect of a meeting vote and may be described as such in any document.

(e) The signature of a director may be affixed to a written consent by any reasonable means, including without limitation facsimile signature or electronic image.

§ 4-33-822 Call and notice of meetings.

(a) Unless the articles, bylaws or subsection (c) of this section provide otherwise, regular meetings of the board may be held without notice.

(b) Unless the articles, bylaws or subsection (c) of this section provide otherwise, special meetings of the board must be preceded by at least two (2) days' notice to each director of the date, time, and place, but not the purpose, of the meeting.

(c) In corporations without members any board action to remove a director or to approve a matter that would require approval by the members if the corporation had members, shall not be valid unless each director is given at least seven (7) days' written notice that the matter will be voted upon at a directors' meeting or unless notice is waived pursuant to § 4-33-823.

(d) Unless the articles or bylaws provide otherwise, the presiding officer of the board, the president or twenty percent (20%) of the directors then in office may call and give notice of a meeting of the board.

§ 4-33-823 Waiver of notice.

(a)(1) A director may at any time waive any notice required by this chapter, the articles, or bylaws.

(2) Except as provided in subsection (b) of this section, the waiver must be in writing, signed by the director entitled to the notice, and filed with the minutes of the corporate records.

(3) A signed waiver delivered by facsimile transmittal or other electronic communication bearing an image of the signature shall constitute a valid waiver of notice under this section.

(b) A director's attendance at or participation in a meeting waives any required notice of the meeting unless the director upon arriving at the meeting or prior to the vote on a matter not noticed in conformity with this chapter, the articles, or bylaws objects to lack of notice and does not thereafter vote for or assent to the objected to action.

§ 4-33-824 Quorum and voting.

(a) Except as otherwise provided in this chapter, the articles or bylaws, a quorum of a board of directors consists of a majority of the directors in office immediately before a meeting begins.

(b) If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present is the act of the board unless this chapter, the articles or bylaws require the vote of a greater number of directors.

§ 4-33-825 Committees of the board.

(a) Unless prohibited or limited by the articles or bylaws, a board of directors may create one (1) or more committees of the board and appoint members of the board to serve on them. Each committee shall have two (2) or more directors, who serve at the pleasure of the board.

(b) The creation of a committee and appointment of members to it must be approved by the greater of:

(1) a majority of a quorum of the directors when the action is taken; or

(2) the number of directors required by the articles or bylaws to take action under § 4-33-824.

(c) Sections 4-33-820 — 4-33-824, which govern meetings, action without meetings, notice and waiver of notice, and quorum and voting requirements of the board, apply to committees of the board and their members as well.

(d) To the extent specified by the board of directors or in the articles or bylaws, each committee of the board may exercise the board's authority under § 4-33-801.

(e) A committee of the board may not, however:

(1) authorize distributions;

(2) approve or recommend to members dissolution, merger or the sale, pledge or transfer of all or substantially all of the corporation's assets;

(3) elect, appoint or remove directors or fill vacancies on the board or on any of its committees; or

(4) adopt, amend or repeal the articles or bylaws.

(f) The creation of, delegation of authority to, or action by a committee does not alone constitute compliance by a director with the standards of conduct described in § 4-33-830.

§ 4-33-826 Reserved

[Reserved] – § 4-33-829

§ 4-33-830 General standards for directors.

(a) A director shall discharge his or her duties as a director, including his or her duties as a member of a committee:

(1) in good faith;

(2) with the care an ordinarily prudent person in a like position would exercise under similar circumstances; and

(3) in a manner the director reasonably believes to be in the best interests of the corporation.

(b) In discharging his or her duties, a director is entitled to rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by:

(1) one (1) or more officers or employees of the corporation whom the director reasonably believes to be reliable and competent in the matters presented;

(2) legal counsel, public accountants or other persons as to matters the director reasonably believes are within the person's professional or expert competence;

(3) a committee of the board of which the director is not a member, as to matters within its jurisdiction, if the director reasonably believes the committee merits confidence; or

(4) in the case of religious corporations, religious authorities and ministers, priests, rabbis or other persons whose position or duties in the religious organization the director believes justify reliance and confidence and whom the director believes to be reliable and competent in the matters presented.

(c) A director is not acting in good faith if the director has knowledge concerning the matter in question that makes reliance otherwise permitted by subsection (b) of this section unwarranted.

(d) A director is not liable to the corporation, any member, or any other person for any action taken or not taken as a director, if the director acted in compliance with this section.

(e) A director shall not be deemed to be a trustee with respect to the corporation or with respect to any property held or administered by the corporation, including without limit, property that may be subject to restrictions imposed by the donor or transferor of such property.

§ 4-33-831 Director conflict of interest.

(a) A conflict of interest transaction is a transaction with the corporation in which a director of the corporation has a direct or indirect interest. A conflict of interest transaction is not voidable or the basis for imposing liability on the director if any of the following is true:

(1) the transaction was fair to the corporation at the time it was entered into;

(2) the material facts of the transaction and the director's interest were disclosed or known to the board of directors and the board authorized, approved, or ratified the transaction; or

(3) the material facts of the transaction and the director's interest were disclosed or known to the members and they authorized, approved, or ratified the transaction.

(b) For purposes of this section, a director of the corporation has an indirect interest in a transaction if

(1) another entity in which the director has a material interest or in which the director is a general partner is a party to the transaction or (2) another entity of which the director is a director, officer, or trustee is a party to the transaction.

(c) For purposes of subsection (a)(2) of this section a conflict of interest transaction is authorized, approved, or ratified, if it receives the affirmative vote of a majority of the directors on the board, who have no direct or indirect interest in the transaction, but a transaction may not be authorized, approved, or ratified under this section by less than a majority of the entire board of directors.

(d) For purposes of subsection (a)(3) of this section, a conflict of interest transaction is authorized, approved, or ratified by the members if it receives a majority of the votes entitled to be counted under this subsection. Votes cast by or voted under the control of a director who has a direct or indirect interest in the transaction, and votes cast by or voted under the control of an entity described in subsection (b)

(1) of this section, may not be counted in a vote of members to determine whether to authorize, approve, or ratify a conflict of interest transaction under subsection (a)(3) of this section. The vote of these members, however, is counted in determining whether the transaction is approved under other sections of this chapter. A majority of the voting power, whether or not present, that are entitled to be counted in a vote on the transaction under this subsection constitutes a quorum for the purpose of taking action under this section.

(e) The articles, bylaws, or a resolution of the board may impose additional requirements on conflict of interest transactions.

§ 4-33-832 Loans to or guaranties for directors and officers.

(a) A corporation may not lend money to or guaranty the obligation of a director or officer of the corporation.

(b) The fact that a loan or guaranty is made in violation of this section does not affect the borrower's liability on the loan.

§ 4-33-833 Liability for unlawful distributions.

(a) Unless a director complies with the applicable standards of conduct described in § 4-33-830, a director who votes for or assents to a distribution made in violation of this chapter is personally liable to the corporation for the amount of the distribution that exceeds what could have been distributed without violating this chapter.

(b) A director held liable for an unlawful distribution under subsection (a) of this section is entitled to contribution:

(1) from every other director who voted for or assented to the distribution without complying with the applicable standards of conduct described in § 4-33-830; and

(2) from each person who received an unlawful distribution for the amount of the distribution whether or not the person receiving the distribution knew it was made in violation of this chapter.

§ 4-33-834 Reserved

[Reserved] – § 4-33-839

§ 4-33-840 Required officers.

(a) Unless otherwise provided in the articles or bylaws, a corporation shall have a president, a secretary, a treasurer and such other officers as are appointed by the board.

(b) The bylaws or the board shall delegate to one (1) of the officers responsibility for preparing minutes of the directors' and members' meetings and for authenticating records of the corporation.

§ 4-33-841 Reserved

[Reserved]

§ 4-33-842 Standards of conduct for officers.

(a) An officer with discretionary authority shall discharge his or her duties under that authority:

(1) in good faith;

(2) with the care an ordinarily prudent person in a like position would exercise under similar circumstances; and

(3) in a manner the officer reasonably believes to be in the best interests of the corporation and its members, if any.

(b) In discharging his or her duties an officer is entitled to rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by:

(1) one (1) or more officers or employees of the corporation who the officer reasonably believes to be reliable and competent in the matters presented;

(2) legal counsel, public accountants or other persons as to matters the officer reasonably believes are within the person's professional or expert competence; or

(3) in the case of religious corporations, religious authorities and ministers, priests, rabbis or other persons whose position or duties in the religious organization the officer believes justify reliance and confidence and who the officer believes to be reliable and competent in the matters presented.

(c) An officer is not acting in good faith if the officer has knowledge concerning the matter in question that makes reliance otherwise permitted by subsection (b) of this section unwarranted.

(d) An officer is not liable to the corporation, any member, or other person for any action taken or not taken as an officer, if the officer acted in compliance with this section.

§ 4-33-843 Resignation and removal of officers.

(a) An officer may resign at any time by delivering notice to the corporation. A resignation is effective when the notice is effective unless the notice specifies a future effective date. If a resignation is made effective at a future date and the corporation accepts the future effective date, its board of directors may fill the pending vacancy before the effective date if the board provides that the successor does not take office until the effective date.

(b) A board may remove any officer at any time with or without cause.

§ 4-33-844 Contract rights of officers.

(a) The appointment of an officer does not itself create contract rights.

(b) An officer's removal does not affect the officer's contract rights, if any, with the corporation. An officer's resignation does not affect the corporation's contract rights, if any, with the officer.

§ 4-33-845 Officers' authority to execute documents.

Any contract or other instrument in writing executed or entered into between a corporation and any other person is not invalidated as to the corporation by any lack of authority of the signing officers in the absence of actual knowledge on the part of the other person that the signing officers had no authority to execute the contract or other instrument if it is signed by any two (2) officers in Category 1 below or by one (1) officer in Category 1 below and one (1) officer in Category 2 below. Category 1 — The presiding officer of the board and the president. Category 2 — A vice president, the secretary, treasurer and executive director.

§ 4-33-846 Reserved

[Reserved] – § 4-33-849

§ 4-33-850 Part definitions.

In this part:

(1) “Corporation” includes any domestic or foreign predecessor entity of a corporation in a merger or other transaction in which the predecessor's existence ceased upon consummation of the transaction.

(2) “Director” means an individual who is or was a director of a corporation or an individual who, while a director of a corporation, is or was serving at the corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic business or nonprofit corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. A director is considered to be serving an employee benefit plan at the corporation's request if the director's duties to the corporation also impose duties on, or otherwise involve services by, the director to the plan or to participants in or beneficiaries of the plan. “Director” includes, unless the context requires otherwise, the estate or personal representative of a director.

(3) “Expenses” include counsel fees.

(4) “Liability” means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses actually incurred with respect to a proceeding.

(5) “Official capacity” means: (i) when used with respect to a director, the office of director in a corporation; and (ii) when used with respect to an individual other than a director, as contemplated in § 4-33-856, the office in a corporation held by the officer or the employment or agency relationship undertaken by the employee or agent on behalf of the corporation. “Official capacity” does not include service for any other foreign or domestic business or nonprofit corporation or any partnership, joint venture, trust, employee benefit plan, or other enterprise.

(6) “Party” includes an individual who was, is or is threatened to be made a named defendant or respondent in a proceeding.

(7) “Proceeding” means any threatened, pending, or completed action, suit or proceeding whether civil, criminal, administrative, or investigative and whether formal or informal.

§ 4-33-851 Authority to indemnify.

(a) Except as provided in subsection (d) of this section, a corporation may indemnify an individual made a party to a proceeding because the individual is or was a director against liability incurred in the proceeding if the individual:

(1) conducted himself or herself in good faith; and

(2) reasonably believed:

(i) in the case of conduct in his or her official capacity with the corporation, that his or her conduct was in its best interests; and

(ii) in all other cases, that his or her conduct was at least not opposed to its best interests; and

(3) in the case of any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful.

(b) A director's conduct with respect to an employee benefit plan for a purpose the director reasonably believed to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirements of subsection (a)(2)(ii) of this section.

(c) The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the director did not meet the standard of conduct described in this section.

(d) A corporation may not indemnify a director under this section:

(1) in connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation; or

(2) in connection with any other proceeding charging improper personal benefit to the director, whether or not involving action in his or her official capacity, in which the director was adjudged liable on the basis that personal benefit was improperly received by the director.

(e) Indemnification permitted under this section in connection with a proceeding by or in the right of the corporation is limited to reasonable expenses incurred in connection with the proceeding.

§ 4-33-852 Mandatory indemnification.

Unless limited by its articles of incorporation, a corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because he or she is or was a director of the corporation against reasonable expenses actually incurred by the director in connection with the proceeding.

§ 4-33-853 Advance for expenses.

(a) A corporation may pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition of the proceeding if:

(1) the director furnishes the corporation a written affirmation of his or her good faith belief that he or she has met the standard of conduct described in § 4-33-851;

(2) the director furnishes the corporation a written undertaking, executed personally or on the director's behalf, to repay the advance if it is ultimately determined that the director did not meet the standard of conduct; and

(3) a determination is made that the facts then known to those making the determination would not preclude indemnification under this part.

(b) The undertaking required by subsection (a)(2) of this section must be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability to make repayment.

(c) Determinations and authorizations of payments under this section shall be made in the manner specified in § 4-33-855.

§ 4-33-854 Court-ordered indemnification.

Unless limited by a corporation's articles of incorporation, a director of the corporation who is a party to a proceeding may apply for indemnification to the court conducting the proceeding or to another court of competent jurisdiction. On receipt of an application, the court after giving any notice the court considers necessary may order indemnification in the amount it considers proper if it determines:

(1) the director is entitled to mandatory indemnification under § 4-33-852, in which case the court shall also order the corporation to pay the director's reasonable expenses incurred to obtain court-ordered indemnification; or

(2) the director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not the director met the standard of conduct set forth in § 4-33-851(a) or was adjudged liable as described in § 4-33-851(d), but if the director was adjudged so liable indemnification is limited to reasonable expenses incurred.

§ 4-33-855 Determination and authorization of indemnification.

(a) A corporation may not indemnify a director under § 4-33-851 unless authorized in the specific case after a determination has been made that indemnification of the director is permissible in the circumstances because the director has met the standards of conduct set forth in § 4-33-851.

(b) The determination shall be made:

(1) by the board of directors by majority vote of a quorum consisting of directors not at the time parties to the proceeding;

(2) if a quorum cannot be obtained under subdivision (b)(1) of this section, by majority vote of a committee duly designated by the board of directors (in which designation directors who are parties may participate), consisting solely of two (2) or more directors not at the time parties to the proceeding;

(3) by special legal counsel:

(i) selected by the board of directors or its committee in the manner prescribed in subdivision (b)(1) or

(b)(2) of this section; or

(ii) if a quorum of the board cannot be obtained under subdivision (b)(1) of this section and a committee cannot be designated under subdivision (b)(2) of this section, selected by majority vote of the full board (in which selection directors who are parties may participate); or

(4) by the members of a mutual benefit corporation, but directors who are at the time parties to the proceeding may not vote on the determination.

(c) Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subsection (b)(3) of this section to select counsel.

(d) A director of a public benefit corporation may not be indemnified until twenty (20) days after the effective date of written notice to the Attorney General of the proposed indemnification.

§ 4-33-856 Indemnification of officers, employees and agents.

Unless limited by a corporation's articles of incorporation:

(1) an officer of the corporation who is not a director is entitled to mandatory indemnification under § 4- 33-852, and is entitled to apply for court-ordered indemnification under § 4-33-854 in each case, to the same extent as a director;

(2) the corporation may indemnify and advance expenses under this part to an officer, employee, or agent of the corporation who is not a director to the same extent as to a director; and

(3) a corporation may also indemnify and advance expenses to an officer, employee, or agent who is not a director to the extent, consistent with public policy, that may be provided by its articles of incorporation, bylaws, general or specific action of its board of directors, or contract.

§ 4-33-857 Insurance.

A corporation may purchase and maintain insurance on behalf of an individual who is or was a director, officer, employee, or agent of the corporation, or who, while a director, officer, employee, or agent of the corporation, is or was serving at the request of the corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic business or nonprofit corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by him or her in that capacity or arising from his or her status as a director, officer, employee, or agent, whether or not the corporation would have power to indemnify the person against the same liability under § 4-33-851 or § 4-33-852.

§ 4-33-858 Application of part.

(a) A provision treating a corporation's indemnification of or advance for expenses to directors that is contained in its articles of incorporation, bylaws, a resolution of its members or board of directors, or in a contract or otherwise, is valid only if and to the extent the provision is consistent with this part. If articles of incorporation limit indemnification or advance for expenses, indemnification and advance for expenses are valid only to the extent consistent with the articles.

(b) This part does not limit a corporation's power to pay or reimburse expenses incurred by a director in connection with appearing as a witness in a proceeding at a time when the director has not been made a named defendant or respondent to the proceeding.

§ 4-33-1001 Authority to amend.

A corporation may amend its articles of incorporation at any time to add or change a provision that is required or permitted in the articles or to delete a provision not required in the articles. Whether a provision is required or permitted in the articles is determined as of the effective date of the amendment.

§ 4-33-1002 Amendment by directors.

(a) Unless the articles provide otherwise, a corporation's board of directors may adopt one (1) or more amendments to the corporation's articles without member approval:

(1) to extend the duration of the corporation if it was incorporated at a time when limited duration was required by law;

(2) to delete the names and addresses of the initial directors;

(3) to change the information required by § 4-20-105(a);

(4) to 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 to the name; or

(5) to make any other change expressly permitted by this chapter to be made by director action.

(b) If a corporation has no members, its incorporators, until directors have been chosen, and thereafter its board of directors, may adopt one (1) or more amendments to the corporation's articles subject to any approval required pursuant to § 4-33-1030. The corporation shall provide notice of any meeting at which an amendment is to be voted upon. The notice shall be in accordance with § 4-33-822(c). The notice must also state that the purpose, or one of the purposes, of the meeting is to consider a proposed amendment to the articles and contain or be accompanied by a copy or summary of the amendment or state the general nature of the amendment. The amendment must be approved by a majority of the directors in office at the time the amendment is adopted.

§ 4-33-1003 Amendment by directors and members.

(a) Unless this chapter, the articles, bylaws, the members (acting pursuant to subsection (b) of this section), or the board of directors (acting pursuant to subsection (c) of this section) require a greater vote or voting by class, an amendment to a corporation's articles to be adopted must be approved:

(1) by the board if the corporation is a public benefit or religious corporation and the amendment does not relate to the number of directors, the composition of the board, the term of office of directors, or the method or way in which directors are elected or selected;

(2) except as provided in § 4-33-1002(a), by the members by two-thirds ( ⅔ ) of the votes cast or a majority of the voting power, whichever is less; and

(3) in writing by a person or persons whose approval is required by a provision of the articles authorized by § 4-33-1030.

(b) The members may condition the amendment's adoption on receipt of a higher percentage of affirmative votes or on any other basis.

(c) If the board initiates an amendment to the articles or board approval is required by subsection (a) of this section to adopt an amendment to the articles, the board may condition the amendment's adoption on receipt of a higher percentage of affirmative votes or any other basis.

(d) If the board or the members seek to have the amendment approved by the members at a membership meeting, the corporation shall give notice to its members of the proposed membership meeting in writing in accordance with § 4-33-705. The notice must state that the purpose, or one of the purposes, of the meeting is to consider the proposed amendment and contain or be accompanied by a copy or summary of the amendment.

(e) If the board or the members seek to have the amendment approved by the members by written consent or written ballot, the material soliciting the approval shall contain or be accompanied by a copy or summary of the amendment.

§ 4-33-1004 Class voting by members on amendments.

(a) The members of a class in a public benefit corporation are entitled to vote as a class on a proposed amendment to the articles if the amendment would change the rights of that class as to voting in a manner different than such amendment affects another class or members of another class.

(b) The members of a class in a mutual benefit corporation are entitled to vote as a class on a proposed amendment to the articles if the amendment would:

(1) affect the rights, privileges, preferences, restrictions or conditions of that class as to voting, dissolution, redemption or transfer of memberships in a manner different than such amendment would affect another class;

(2) change the rights, privileges, preferences, restrictions or conditions of that class as to voting, dissolution, redemption or transfer by changing the rights, privileges, preferences, restrictions or conditions of another class.

(3) increase or decrease the number of memberships authorized for that class;

(4) increase the number of memberships authorized for another class;

(5) effect an exchange, reclassification or termination of the memberships of that class; or

(6) authorize a new class of memberships.

(c) The members of a class of a religious corporation are entitled to vote as a class on a proposed amendment to the articles only if a class vote is provided for in the articles or bylaws.

(d) If a class is to be divided into two (2) or more classes as a result of an amendment to the articles of a public benefit or mutual benefit corporation, the amendment must be approved by the members of each class that would be created by the amendment.

(e) Except as provided in the articles or bylaws of a religious corporation, if a class vote is required to approve an amendment to the articles of a corporation, the amendment must be approved by the members of the class by two-thirds ( ⅔ ) of the votes cast by the class or a majority of the voting power of the class, whichever is less.

(f) A class of members of a public benefit or mutual benefit corporation is entitled to the voting rights granted by this section although the articles and bylaws provide that the class may not vote on the proposed amendment.

§ 4-33-1005 Articles of amendment.

A corporation amending its articles shall deliver to the Secretary of State articles of amendment setting forth:

(1) the name of the corporation;

(2) the text of each amendment adopted;

(3) the date of each amendment's adoption;

(4) if approval of members was not required, a statement to that effect and a statement that the amendment was approved by a sufficient vote of the board of directors or incorporators;

(5) if approval by members was required:

(i) the designation, number of memberships outstanding, number of votes entitled to be cast by each class entitled to vote separately on the amendment, and number of votes of each class indisputably voting on the amendment; and

(ii) either the total number of votes cast for and against the amendment by each class entitled to vote separately on the amendment or the total number of undisputed votes cast for the amendment by each class and a statement that the number cast for the amendment by each class was sufficient for approval by that class.

(6) if approval of the amendment by some person or persons other than the members, the board or the incorporators is required pursuant to § 4-33-1030, a statement that the approval was obtained.

§ 4-33-1006 Restated articles of incorporation.

(a) A corporation's board of directors may restate its articles of incorporation at any time with or without approval by members or any other person.

(b) The restatement may include one (1) or more amendments to the articles. If the restatement includes an amendment requiring approval by the members or any other person, it must be adopted as provided in § 4-33-1003.

(c) If the restatement includes an amendment requiring approval by members, the board must submit the restatement to the members for their approval.

(d) If the board seeks to have the restatement approved by the members at a membership meeting, the corporation shall notify each of its members of the proposed membership meeting in writing in accordance with § 4-33-705. The notice must also state that the purpose, or one of the purposes, of the meeting is to consider the proposed restatement and contain or be accompanied by a copy or summary of the restatement that identifies any amendments or other change it would make in the articles.

(e) If the board seeks to have the restatement approved by the members by written ballot or written consent, the material soliciting the approval shall contain or be accompanied by a copy or summary of the restatement that identifies any amendments or other change it would make in the articles.

(f) A restatement requiring approval by the members must be approved by the same vote as an amendment to articles under § 4-33-1003.

(g) If the restatement includes an amendment requiring approval pursuant to § 4-33-1030, the board must submit the restatement for such approval.

(h) A corporation restating its articles shall deliver to the Secretary of State 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 approval by the members or any other person other than the board of directors 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 approval by the members, the information required in § 4-33-1005; and

(3) if the restatement contains an amendment to the articles requiring approval by a person whose approval is required pursuant to § 4-33-1030, a statement that such approval was obtained.

(i) Duly adopted restated articles of incorporation supersede the original articles of incorporation and all amendments to them.

(j) 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 (h) of this section.

§ 4-33-1007 Amendment pursuant to judicial reorganization.

(a) A corporation's articles may be amended without board approval or approval by the members or approval required pursuant to § 4-33-1030 to carry out a plan of reorganization ordered or decreed by a court of competent jurisdiction under federal statute if the articles after amendment contain only provisions required or permitted by § 4-33-202.

(b) The individual or individuals designated by the court shall deliver to the Secretary of State 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) 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.

§ 4-33-1008 Effect of amendment and restatement.

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, any requirement or limitation imposed upon the corporation or any property held by it by virtue of any trust upon which such property is held by the corporation or the existing rights of persons other than members 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.

§ 4-33-1009 Reserved

[Reserved] – § 4-33-1019

§ 4-33-1020 Amendment by directors.

If a corporation has no members, its incorporators, until directors have been chosen, and thereafter its board of directors, may adopt one (1) or more amendments to the corporation's bylaws subject to any approval required pursuant to § 4-33-1030. The corporation shall provide notice of any meeting of directors at which an amendment is to be approved. The notice shall be in accordance with § 4-33- 822(c). The notice must also state that the purpose, or one of the purposes, of the meeting is to consider a proposed amendment of the bylaws and contain or be accompanied by a copy or summary of the amendment or state the general nature of the amendment. The amendment must be approved by a majority of the directors in office at the time the amendment is adopted.

§ 4-33-1021 Amendment by directors and members.

(2) by the members by two-thirds ( ⅔ ) of the votes cast or a majority of the voting power, whichever is less; and

(3) in writing by any person or persons whose approval is required by a provision of the articles authorized by § 4-33-1030.

(b) The members may condition the amendment's adoption on its receipt of a higher percentage of affirmative votes or on any other basis.

(c) If the board initiates an amendment to the bylaws or board approval is required by subsection (a) of this section to adopt an amendment to the bylaws, the board may condition the amendment's adoption on receipt of a higher percentage of affirmative votes or on any other basis.

(d) If the board or the members seek to have the amendment approved by the members at a membership meeting, the corporation shall give notice to its members of the proposed membership meeting in writing in accordance with § 4-33-705. The notice must also state that the purpose, or one of the purposes, of the meeting is to consider the proposed amendment and contain or be accompanied by a copy or summary of the amendment.

§ 4-33-1022 Class voting by members on amendments.

(a) The members of a class in a public benefit corporation are entitled to vote as a class on a proposed amendment to the bylaws if the amendment would change the rights of that class as to voting in a manner different than such amendment affects another class or members of another class.

(b) The members of a class in a mutual benefit corporation are entitled to vote as a class on a proposed amendment to the bylaws if the amendment would:

(3) increase or decrease the number of memberships authorized for that class;

(4) increase the number of memberships authorized for another class;

(5) effect an exchange, reclassification or termination of all or part of the memberships of that class; or

(6) authorize a new class of memberships.

(c) The members of a class of a religious corporation are entitled to vote as a class on a proposed amendment to the bylaws only if a class vote is provided for in the articles or bylaws.

(d) If a class is to be divided into two (2) or more classes as a result of an amendment to the bylaws, the amendment must be approved by the members of each class that would be created by the amendment; and

(e) If a class vote is required to approve an amendment to the bylaws, the amendment must be approved by the members of the class by two-thirds ( ⅔ ) of the votes cast by the class or a majority of the voting power of the class, whichever is less.

(f) A class of members is entitled to the voting rights granted by this section although the articles and bylaws provide that the class may not vote on the proposed amendment.

§ 4-33-1023 Reserved

[Reserved] – § 4-33-1029

§ 4-33-1030 Approval by third persons.

The articles may require an amendment to the articles or bylaws to be approved in writing by a specified person or persons other than the board. Such an article provision may only be amended with the approval in writing of such person or persons.

§ 4-33-1031 Amendment terminating members or redeeming or cancelling memberships.

(a) Any amendment to the articles or bylaws of a public benefit or mutual benefit corporation that would terminate all members or any class of members or redeem or cancel all memberships or any class of memberships must meet the requirements of this chapter and this section, unless otherwise provided in the articles or bylaws.

(b) Before adopting a resolution proposing such an amendment, the board of a mutual benefit corporation shall give notice of the general nature of the amendment to the members.

(c) After adopting a resolution proposing such an amendment, the notice to members proposing such amendment shall include one (1) statement of up to five hundred (500) words opposing the proposed amendment if such statement is submitted by any five (5) members or members having three percent (3%) or more of the voting power, whichever is less, not later than twenty (20) days after the board has voted to submit such amendment to the members for their approval. In public benefit corporations the production and mailing costs shall be paid by the requesting members. In mutual benefit corporations the production and mailing costs shall be paid by the corporation.

(d) Any such amendment shall be approved by the members by two-thirds ( ⅔ ) of the votes cast by each class.

(e) The provisions of § 4-33-621 shall not apply to any amendment meeting the requirements of this chapter and this section.

§ 4-33-1101 Approval of plan of merger.

(a) Subject to the limitations set forth in § 4-33-1102, two (2) or more nonprofit corporations may merge, if the plan of merger is approved or provided in § 4-33-1103.

(b) The plan of merger must set forth:

(1) the name of each corporation planning to merge and the name of the surviving corporation into which each plans to merge;

(2) the terms and conditions of the planned merger;

(3) the manner and basis, if any, of converting the memberships of each public benefit or religious corporation into memberships of the surviving corporation; and

(4) if the merger involves a mutual benefit corporation, the manner and basis, if any, of converting memberships of each merging corporation into memberships, obligations or securities of the surviving or any other corporation or into cash or other property in whole or in part.

(1) any amendments to the articles of incorporation or bylaws of the surviving corporation to be effected by the planned merger; and

(2) other provisions relating to the planned merger.

§ 4-33-1102 Limitations on mergers by public benefit or religious corporations.

(a) Without the prior approval of the circuit court of the county in which the corporation's principal office (or, if none in this state, its registered office) is located, a public benefit or religious corporation may merge only with:

(1) a public benefit or religious corporation;

(2) a foreign corporation that would qualify under this chapter as a public benefit or religious corporation; or

(3) a mutual benefit corporation, provided the public benefit or religious corporation is the surviving corporation and continues to be a public benefit corporation or religious corporation after the merger.

(b) Without an order of the circuit court of the county in which the corporation's principal office (or, if none in this state, its registered office) is located, no member of a public benefit or religious corporation may receive or keep anything as a result of a merger other than a membership or membership in the surviving public benefit or religious corporation. The court shall approve the transaction if it is in the public interest.

§ 4-33-1103 Action on plan by board, members and third persons.

(a) Unless this chapter, the articles, bylaws or the board of directors or members (acting pursuant to subsection (c) of this section) require a greater vote or voting by class, a plan of merger to be adopted must be approved:

(1) by the board;

(2) by the members, if any, by two-thirds ( ⅔ ) of the votes cast or a majority of the voting power, whichever is less; and

(3) in writing by any person or persons whose approval is required by a provision of the articles authorized by § 4-33-1030 for an amendment to the articles or bylaws.

(b) If the corporation does not have members, the merger must be approved by a majority of the directors in office at the time the merger is approved. In addition the corporation shall provide notice of any directors' meeting at which such approval is to be obtained in accordance with § 4-33-822(c). The notice must also state that the purpose, or one of the purposes, of the meeting is to consider the proposed merger.

(c) The board may condition its submission of the proposed merger, and the members may condition their approval of the merger, on receipt of a higher percentage of affirmative votes or on any other basis.

(d) If the board seeks to have the plan approved by the members at a membership meeting, the corporation shall give notice to its members of the proposed membership meeting in accordance with § 4-33-705. The notice must also state that the purpose, or one of the purposes, of the meeting is to consider the plan of merger and contain or be accompanied by a copy or summary of the plan. The copy or summary of the plan for members of the surviving corporation shall include any provision that, if contained in a proposed amendment of the articles of incorporation or bylaws, would entitle members to vote on the provision. The copy or summary of the plan for members of the disappearing corporation shall include a copy or summary of the articles and bylaws that will be in effect immediately after the merger takes effect.

(e) If the board seeks to have the plan approved by the members by written consent or written ballot, the material soliciting the approval shall contain or be accompanied by a copy or summary of the plan. The copy or summary of the plan for members of the surviving corporation shall include any provision that, if contained in a proposed amendment to the articles of incorporation or bylaws, would entitle members to vote on the provision. The copy or summary of the plan for members of the disappearing corporation shall include a copy or summary of the articles and bylaws that will be in effect immediately after the merger takes effect.

(f) Voting by a class of members is required on a plan of merger if the plan contains a provision that, if contained in a proposed amendment to articles of incorporation or bylaws, would entitle the class of members to vote as a class on the proposed amendment under §§ 4-33-1004 or 4-33-1022. The plan is approved by a class of members by two-thirds ( ⅔ ) of the votes cast by the class or a majority of the voting power of the class, whichever is less.

(g) After a merger is adopted, and at any time before articles of merger are filed, the planned merger may be abandoned (subject to any contractual rights) without further action by members or other persons who approved the plan in accordance with the procedure set forth in the plan of merger or, if none is set forth, in the manner determined by the board of directors.

§ 4-33-1104 Articles of merger.

After a plan of merger is approved by the board of directors, and if required by § 4-33-1103, by the members and any other persons, the surviving or acquiring corporation shall deliver to the Secretary of State articles of merger setting forth:

(1) the plan of merger;

(2) if approval of members was not required, a statement to that effect and a statement that the plan was approved by a sufficient vote of the board of directors;

(3) if approval by members was required:

(i) the designation, number of memberships outstanding, number of votes entitled to be cast by each class entitled to vote separately on the plan, and number of votes of each class indisputably voting on the plan; and

(ii) either the total number of votes cast for and against the plan by each class entitled to vote separately on the plan or the total number of undisputed votes cast for the plan by each class and a statement that the number cast for the plan by each class was sufficient for approval by that class;

(4) if approval of the plan by some person or persons other than the members or the board is required pursuant to § 4-33-1103(a)(3), a statement that the approval was obtained.

§ 4-33-1105 Effect of merger.

When a merger takes effect:

(1) every other corporation party to the merger merges into the surviving corporation and the separate existence of every corporation except the surviving corporation ceases;

(2) the title to all real estate and other property owned by each corporation party to the merger is vested in the surviving corporation without reversion or impairment subject to any and all conditions to which the property was subject prior to the merger;

(3) the surviving corporation has all liabilities and obligations of each corporation party to the merger;

(4) a proceeding pending against any corporation party to the merger may be continued as if the merger did not occur or the surviving corporation may be substituted in the proceeding for the corporation whose existence ceased; and

(5) the articles of incorporation and bylaws of the surviving corporation are amended to the extent provided in the plan of merger.

§ 4-33-1106 Merger with foreign corporation.

(a) Except as provided in § 4-33-1102, one (1) or more foreign nonprofit corporations may merge with one (1) or more domestic nonprofit corporations if:

(1) the merger is permitted by the law of the state or country under whose law each foreign corporation is incorporated and each foreign corporation complies with that law in effecting the merger;

(2) the foreign corporation complies with § 4-33-1104 if it is the surviving corporation of the merger; and

(3) each domestic nonprofit corporation complies with the applicable provisions of §§ 4-33-1101 — 4- 33-1103 and, if it is the surviving corporation of the merger, with § 4-33-1104.

(b) Upon the merger taking effect, the surviving foreign business or nonprofit corporation may be served with process in any proceeding brought against it as provided in § 4-20-113.

§ 4-33-1107 Bequests, devises and gifts.

Any bequest, devise, gift, grant, or promise contained in a will or other instrument of donation, subscription, or conveyance, that is made to a constituent corporation and that takes effect or remains payable after the merger, inures to the surviving corporation unless the will or other instrument otherwise specifically provides.

§ 4-33-1108 Continuation of prior corporate existence for limited purpose.

(a) The corporate existence of each constituent corporation which has been dissolved through merger or consolidation shall be continued indefinitely for the limited purpose of enabling the constituent corporation to execute through its own officers formal deeds, conveyances, assignments, and other instruments evidencing the transfer from the constituent to the surviving corporation, or new corporation created by consolidation, of any or all real and personal properties which have passed from the constituent to the surviving or consolidated corporation by operation of law.

(b) The execution of the instruments shall not be essential to effect the transfer of title from the constituent to the surviving or consolidated corporation, inasmuch as the transfer will take effect through operation of law; but the power to execute such instruments is given to the end that it may be exercised:

(1) In respect to properties located in foreign jurisdictions which may not recognize a transmittal of title by operation of law under the merger and consolidation statutes of this state; and

(2) In any other situation where the directors of the surviving or consolidated corporation consider the execution of the instruments desirable.

§ 4-33-1201 Sale of assets in regular course of activities and mortgage of assets.

(a) A corporation may on the terms and conditions and for the consideration determined by the board of directors:

(1) sell, lease, exchange, or otherwise dispose of all, or substantially all, of its property in the usual and regular course of its activities; or

(2) mortgage, pledge, dedicate to the repayment of indebtedness (whether with or without recourse), or otherwise encumber any or all of its property whether or not in the usual and regular course of its activities.

(b) Unless the articles require it, approval of the members or any other person of a transaction described in subsection (a) of this section is not required.

§ 4-33-1202 Sale of assets other than in regular course of activities.

(a) A corporation may sell, lease, exchange, or otherwise dispose of all, or substantially all, of its property (with or without the goodwill) other than in the usual and regular course of its activities on the terms and conditions and for the consideration determined by the corporation's board if the proposed transaction is authorized by subsection (b) of this section.

(b) Unless this chapter, the articles, bylaws, or the board of directors or members (acting pursuant to subsection (d) of this section) require a greater vote or voting by class, the proposed transaction to be authorized must be approved:

(1) by the board;

(2) by the members by two-thirds ( ⅔ ) of the votes cast or a majority of the voting power, whichever is less; and

(3) in writing by any person or persons whose approval is required by a provision of the articles authorized by § 4-33-1030 for an amendment to the articles or bylaws.

(c) If the corporation does not have members the transaction must be approved by a vote of a majority of the directors in office at the time the transaction is approved. In addition the corporation shall provide notice of any directors' meeting at which such approval is to be obtained in accordance with § 4-33- 822(c) of this section. The notice must also state that the purpose, or one of the purposes, of the meeting is to consider the sale, lease, exchange, or other disposition of all, or substantially all, of the property or assets of the corporation and contain or be accompanied by a copy or summary of a description of the transaction.

(d) The board may condition its submission of the proposed transaction, and the members may condition their approval of the transaction, on receipt of a higher percentage of affirmative votes or on any other basis.

(e) If the corporation seeks to have the transaction approved by the members at a membership meeting, the corporation shall give notice to its members of the proposed membership meeting in accordance with § 4-33-705. The notice must also state that the purpose, or one of the purposes, of the meeting is to consider the sale, lease, exchange, or other disposition of all, or substantially all, of the property or assets of the corporation and contain or be accompanied by a copy or summary of a description of the transaction.

(f) If the board needs to have the transaction approved by the members by written consent or written ballot, the material soliciting the approval shall contain or be accompanied by a copy or summary of a description of the transaction.

(g) After a sale, lease, exchange, or other disposition of property is authorized, the transaction may be abandoned (subject to any contractual rights), without further action by the members or any other person who approved the transaction in accordance with the procedure set forth in the resolution proposing the transaction or, if none is set forth, in the manner determined by the board of directors.

§ 4-33-1301 Prohibited distributions.

Except as authorized by § 4-33-1302, a corporation shall not make any distributions.

§ 4-33-1302 Authorized distributions.

(a) A mutual benefit corporation may purchase its memberships if after the purchase is completed:

(1) the corporation would be able to pay its debts as they become due in the usual course of its activities; and

(2) the corporation's total assets would at least equal the sum of its total liabilities.

(b) Corporations may make distributions upon dissolution in conformity with §§ 4-33-1401 et seq.

(c) Corporations that are organized and operated as cooperative within the meaning of Subchapter T of the Internal Revenue Code of 1986, as amended, Internal Revenue Code §§ 1381 — 1388, may make distributions to their members in accordance with Subchapter T.

§ 4-33-1401 Dissolution by incorporators or directors and third persons.

(a) A majority of the incorporators or directors of a corporation that has no members may, subject to any approval required by the articles or bylaws, dissolve the corporation by delivering to the Secretary of State articles of dissolution.

(b) The corporation shall give notice of any meeting at which dissolution will be approved. The notice shall be in accordance with § 4-33-822(c). The notice must also state that the purpose, or one of the purposes, of the meeting is to consider dissolution of the corporation.

(c) The incorporators or directors in approving dissolution shall adopt a plan of dissolution indicating to whom the assets owned or held by the corporation will be distributed after all creditors have been paid.

§ 4-33-1402 Dissolution by directors, members and third persons.

(a) Unless this chapter, the articles, bylaws or the board of directors or members (acting pursuant to subsection (c) of this section) require a greater vote or voting by class, dissolution is authorized if it is approved:

(1) by the board;

(2) by the members, if any, by two-thirds ( ⅔ ) of the votes cast or a majority of the voting power, whichever is less; and

(3) in writing by any person or persons whose approval is required by a provision of the articles authorized by § 4-33-1030 for an amendment to the articles or bylaws.

(b) If the corporation does not have members, dissolution must be approved by a vote of a majority of the directors in office at the time the transaction is approved. In addition, the corporation shall provide notice of any directors' meeting at which such approval is to be obtained in accordance with § 4-33- 822(c). The notice must also state that the purpose, or one of the purposes, of the meeting is to consider dissolution of the corporation and contain or be accompanied by a copy or summary of the plan of dissolution.

(c) The board may condition its submission of the proposed dissolution, and the members may condition their approval of the dissolution on receipt of a higher percentage of affirmative votes or on any other basis.

(d) If the board seeks to have dissolution approved by the members at a membership meeting, the corporation shall give notice to its members of the proposed membership meeting in accordance with § 4-33-705. The notice must also state that the purpose, or one of the purposes, of the meeting is to consider dissolving the corporation and contain or be accompanied by a copy or summary of the plan of dissolution.

(e) If the board seeks to have dissolution approved by the members by written consent or written ballot, the material soliciting the approval shall contain or be accompanied by a copy or summary of the plan of dissolution.

(f) The plan of dissolution shall indicate to whom the assets owned or held by the corporation will be distributed after all creditors have been paid.

§ 4-33-1403 Reserved

[Reserved]

§ 4-33-1404 Articles of dissolution.

(a) At any time after dissolution is authorized, the corporation may dissolve by delivering to the Secretary of State articles of dissolution setting forth:

(1) the name of the corporation;

(2) the date dissolution was authorized;

(3) a statement that dissolution was approved by a sufficient vote of the board;

(4) if approval of members was not required, a statement to that effect and a statement that dissolution was approved by a sufficient vote of the board of directors or incorporators;

(5) if approval by members was required:

(i) the designation, number of memberships outstanding, number of votes entitled to be cast by each class entitled to vote separately on dissolution, and number of votes of each class indisputably voting on dissolution; and

(ii) either the total number of votes cast for and against dissolution by each class entitled to vote separately on dissolution or the total number of undisputed votes cast for dissolution by each class and a statement that the number cast for dissolution by each class was sufficient for approval by that class.

(6) if approval of dissolution by some person or persons other than the members, the board or the incorporators is required pursuant to § 4-33-1402(a)(3), a statement that the approval was obtained.

(b) A corporation is dissolved upon the effective date of its articles of dissolution.

§ 4-33-1405 Reserved

[Reserved]

§ 4-33-1406 Effect of dissolution.

(a) A dissolved corporation continues its corporate existence but may not carry on any activities except those appropriate to wind up and liquidate its affairs, including:

(1) preserving and protecting its assets and minimizing its liabilities;

(2) discharging or making provision for discharging its liabilities and obligations;

(3) disposing of its properties that will not be distributed in kind;

(4) returning, transferring or conveying assets held by the corporation upon a condition requiring return, transfer or conveyance, which condition occurs by reason of the dissolution, in accordance with such condition;

(5) transferring, subject to any contractual or legal requirements, its assets as provided in or authorized by its articles of incorporation or bylaws;

(6) if the corporation is a public benefit or religious corporation, and no provision has been made in its articles or bylaws for distribution of assets on dissolution, transferring, subject to any contractual or legal requirement, its assets: (i) to one (1) or more persons described in section 501(c)(3) of the Internal Revenue Code, or (ii) if the dissolved corporation is not described in section 501(c)(3) of the Internal Revenue Code, to one (1) or more public benefit or religious corporations;

(7) if the corporation is a mutual benefit corporation and no provision has been made in its articles or bylaws for distribution of assets on dissolution, transferring its assets to its members or, if it has no members, to those persons whom the corporation holds itself out as benefitting or serving; and

(8) doing every other act necessary to wind up and liquidate its assets and affairs.

(b) Dissolution of a corporation does not:

(1) transfer title to the corporation's property;

(2) subject its directors or officers to standards of conduct different from those prescribed in §§ 4-33- 801 et seq.;

(3) change quorum or voting requirements for its board or members; change provision for selection, resignation, or removal of its directors or officers or both; or change provisions for amending its bylaws;

(4) prevent commencement of a proceeding by or against the corporation in its corporate name;

(5) abate or suspend a proceeding pending by or against the corporation on the effective date of dissolution; or

(6) terminate the authority of the registered agent.

§ 4-33-1407 Known claims against dissolved corporation.

(a) A dissolved corporation may dispose of the known claims against it by following the procedure described in this section.

(b) The dissolved corporation shall notify its known claimants in writing of the dissolution at any time after its effective date. The written notice must:

(1) describe information that must be included in a claim;

(2) provide a mailing address where a claim may be sent;

(3) state the deadline, which may not be fewer than one hundred twenty (120) days from the effective date of the written notice, by which the dissolved corporation must receive the claim; and

(4) state that the claim will be barred if not received by the deadline.

(1) if a claimant who was given written notice under subsection (b) of this section does not deliver the claim to the dissolved corporation by the deadline;

(2) if a claimant whose claim was rejected by the dissolved corporation does not commence a proceeding to enforce the claim within ninety (90) days from the effective date of the rejection notice.

(d) For purposes of this section “claim” does not include a contingent liability or a claim based on an event occurring after the effective date of dissolution.

§ 4-33-1408 Unknown claims against dissolved corporation.

(a) At any time after dissolution is authorized, a corporation may also publish notice of its dissolution and request that persons with claims against the corporation present them in accordance with the notice.

(b) The notice must:

(1) be published one (1) time in a newspaper of general circulation in the county where the corporation's principal office is or was last located or in a newspaper of general circulation in Pulaski County if the corporation does not have a principal office in this state;

(2) describe the information that must be included in a claim and provide a mailing address where the claim may be sent; and

(3) state that a claim against the corporation will be barred unless a proceeding to enforce the claim is commenced within one (1) year after publication of the notice.

(c) If the corporation publishes a newspaper notice in accordance with subsection (b) of this section, the claim of each of the following claimants is barred unless the claimant commences a proceeding to enforce the claim against the corporation within one (1) year after the publication date of the newspaper notice:

(1) a claimant who did not receive written notice under § 4-33-1407;

(2) a claimant whose claim was timely sent to the corporation but not acted on; and

(3) a claimant whose claim is contingent or based on an event occurring after the effective date of dissolution.

(d) A claim may be enforced under this section:

(1) against the corporation, to the extent of its undistributed assets; or

(2) if the assets have been distributed in liquidation, against any person, other than a creditor of the corporation, to whom the corporation distributed its property to the extent of the distributee's pro rata share of the claim or the corporate assets distributed to such person in liquidation, whichever is less, but the distributee's total liability for all claims under this section may not exceed the total amount of assets distributed to the distributee.

§ 4-33-1409 Reserved

[Reserved] – § 4-33-1419

§ 4-33-1420 Grounds for administrative dissolution.

The Secretary of State may commence a proceeding under § 4-33-1421 to administratively dissolve a corporation if:

(1) the corporation does not pay within sixty (60) days after they are due any taxes or penalties imposed by this chapter;

(2) the corporation is without a registered agent in this state for one hundred twenty (120) days or more;

(3) the corporation does not notify the Secretary of State within one hundred twenty (120) days that its registered agent has been changed or has resigned;

(4) the corporation's period of duration, if any, stated in its articles of incorporation expires; or

(5) the corporation does not file the annual disclosure statement required under § 4-33-131 within sixty

(60) days after it is due.

§ 4-33-1421 Procedure for and effect of administrative dissolution.

(a) Upon determining that one (1) or more grounds exist under § 4-33-1420 for dissolving a corporation, the Secretary of State shall serve the corporation with written notice of that determination.

(b) If the corporation does not correct each ground for dissolution or demonstrate to the reasonable satisfaction of the Secretary of State that each ground determined by the Secretary of State does not exist within at least sixty (60) days after service of the notice is perfected, the Secretary of State may administratively dissolve the corporation by signing a certificate of dissolution that recites the ground or grounds for dissolution and its effective date. The Secretary of State shall file the original of the certificate and serve a copy on the corporation.

(c) A corporation administratively dissolved continues its corporate existence but may not carry on any activities except those necessary to wind up and liquidate its affairs under § 4-33-1406 and notify its claimants under §§ 4-33-1407 and 4-33-1408.

(d) The administrative dissolution of a corporation does not terminate the authority of its registered agent.

§ 4-33-1422 Reinstatement following administrative dissolution.

(a) A corporation administratively dissolved under § 4-33-1421 may apply to the Secretary of State for reinstatement within two (2) years after the effective date of dissolution. The application must:

(1) recite the name of the corporation and the effective date of its administrative dissolution;

(2) state that the ground or grounds for dissolution either did not exist or have been eliminated;

(3) state that the corporation's name satisfies the requirements of § 4-33-401; and

(4) contain an affidavit or a certificate from the Department of Finance and Administration reciting that all state taxes owed by the corporation have been paid.

(b) If the Secretary of State determines that the application contains the information required by subsection (a) of this section and that the information is correct, the Secretary of State shall cancel the certificate of dissolution and prepare a certificate of reinstatement reciting that determination and the effective date of reinstatement, file the original of the certificate, and serve a copy on the corporation.

(c) When reinstatement is effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the corporation shall resume carrying on its activities as if the administrative dissolution had never occurred.

§ 4-33-1423 Appeal from denial of reinstatement.

(a) The Secretary of State, upon denying a corporation's application for reinstatement following administrative dissolution, shall serve the corporation with a written notice that explains the reasons for denial.

(b) The corporation may appeal the denial of reinstatement to the Pulaski County Circuit Court within ninety (90) days after service of the notice of denial is perfected. The corporation appeals by petitioning the court to set aside the dissolution and attaching to the petition copies of the Secretary of State's certificate of dissolution, the corporation's application for reinstatement, and the Secretary of State's notice of denial.

(c) The court may summarily order the Secretary of State to reinstate the dissolved corporation or may take other action the court considers appropriate.

(d) The court's final decision may be appealed as in other civil proceedings.

§ 4-33-1424 Reserved

[Reserved] – § 4-33-1429

§ 4-33-1430 Grounds for judicial dissolution.

(a) The circuit court may dissolve a corporation:

(1) in a proceeding by the attorney general if it is established that:

(i) the corporation obtained its articles of incorporation through fraud;

(ii) the corporation has continued to exceed or abuse the authority conferred upon it by law; or

(iii) the corporation is a public benefit corporation and the corporate assets are being fraudulently misapplied or wasted.

(2) except as provided in the articles or bylaws of a religious corporation, in a proceeding by fifty (50) members or members holding five percent (5%) of the voting power, whichever is less, or by a director or any person specified in the articles, if it is established that:

(i) the directors are deadlocked in the management of the corporate affairs, and the members, if any, are unable to breach the deadlock;

(ii) the directors or those in control of the corporation have acted, are acting or will act in a manner that is illegal or fraudulent;

(iii) the members are deadlocked in voting power and have failed, for a period that includes at least two

(2) consecutive annual meeting dates, to elect successors to directors whose terms have, or would otherwise have, expired; or

(iv) the corporate assets are being fraudulently misapplied or wasted.

(3) in a proceeding by a creditor if it is established that:

(i) the creditor's claim has been reduced to judgment, the execution on the judgment returned unsatisfied and the corporation is insolvent; or

(ii) the corporation has admitted in writing that the creditor's claim is due and owing and the corporation is insolvent.

(4) in a proceeding by the corporation to have its voluntary dissolution continued under court supervision.

(b) Prior to dissolving a corporation, the court shall consider whether:

(1) there are reasonable alternatives to dissolution;

(2) dissolution is in the public interest, if the corporation is a public benefit corporation; and

(3) dissolution is the best way of protecting the interests of members, if the corporation is a mutual benefit corporation.

§ 4-33-1431 Procedure for judicial dissolution.

(a) Venue for a proceeding by the Attorney General to dissolve a corporation lies in the Pulaski County Circuit Court. Venue for a proceeding brought by any other party named in § 4-33-1430 lies in the circuit court of the county where a corporation's principal office is or was last located or the Pulaski County Circuit Court if the corporation does not have a principal office in this state.

(b) It is not necessary to make directors or members parties to a proceeding to dissolve a corporation unless relief is sought against them individually.

(c) A court in a proceeding brought to dissolve a corporation may issue injunctions, appoint a receiver or custodian pendente lite with all powers and duties the court directs, take other action required to preserve the corporate assets wherever located, and carry on the activities of the corporation until a full hearing can be held.

§ 4-33-1432 Receivership or custodianship.

(a) A court in a judicial proceeding brought to dissolve a public benefit or mutual benefit corporation may appoint one (1) or more receivers to wind up and liquidate, or one (1) or more custodians to manage, the affairs of the corporation. The court shall hold a hearing, after notifying all parties to the proceeding and any interested persons designated by the court, before appointing a receiver or custodian. The court appointing a receiver or custodian has exclusive jurisdiction over the corporation and all of its property wherever located.

(b) The court may appoint an individual, or a domestic or foreign business or nonprofit corporation (authorized to transact business in this state) as a receiver or custodian. The court may require the receiver or custodian to post bond, with or without sureties, in an amount the court directs.

(c) The court shall describe the powers and duties of the receiver or custodian in its appointing order, which may be amended from time to time. Among other powers:

(1) the receiver (i) may dispose of all or any part of the assets of the corporation wherever located, at a public or private sale, if authorized by the court; provided, however, that the receiver's power to dispose of the assets of the corporation is subject to any trust and other restrictions that would be applicable to the corporation; and (ii) may sue and defend in the receiver's or custodian's name as receiver or custodian of the corporation in all courts of this state;

(2) the custodian may exercise all of the powers of the corporation, through or in place of its board of directors or officers, to the extent necessary to manage the affairs of the corporation in the best interests of its members and creditors.

(d) The court during a receivership may redesignate the receiver a custodian, and during a custodianship may redesignate the custodian a receiver, if doing so is in the best interests of the corporation, its members, and creditors.

(e) The court from time to time during the receivership or custodianship may order compensation paid and expense disbursements or reimbursements made to the receiver or custodian and the receiver or custodian's counsel from the assets of the corporation or proceeds from the sale of the assets.

§ 4-33-1433 Decree of dissolution.

(a) If after a hearing the court determines that one (1) or more grounds for judicial dissolution described in § 4-33-1430 exist, it may enter a decree dissolving the corporation and specifying the effective date of the dissolution, and the clerk of the court shall deliver a certified copy of the decree to the Secretary of State, who shall file it.

(b) After entering the decree of dissolution, the court shall direct the winding up and liquidation of the corporation's affairs in accordance with § 4-33-1406 and the notification of its claimants in accordance with §§ 4-33-1407 and 4-33-1408.

§ 4-33-1434 Reserved

[Reserved] – § 4-33-1439

§ 4-33-1440 Deposit with Treasurer of State.

Assets of a dissolved corporation that should be transferred to a creditor, claimant, or member of the corporation who cannot be found or who is not competent to receive them, shall be reduced to cash subject to known trust restrictions and deposited with the Treasurer of State for safekeeping; provided, however, that in the Treasurer of State's discretion property may be received and held in kind. When the creditor, claimant, or member furnishes satisfactory proof of entitlement to the amount deposited or property held in kind, the Treasurer of State shall deliver to the creditor, member or other person or his or her representative that amount or property.

§ 4-33-1501 Authority to transact business required.

(a) A foreign corporation may not transact business in this state until it obtains a certificate of authority from the Secretary of State.

(b) The following activities, among others, do not constitute transacting business within the meaning of subsection (a) of this section:

(1) maintaining, defending, or settling any 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 those securities;

(5) selling through independent contractors;

(6) soliciting or obtaining orders, whether by mail or through employees or agents or otherwise, if the orders require acceptance outside this state before they become contracts;

(7) 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, without more, real or personal property;

(10) conducting an isolated transaction that is completed within thirty (30) days and that is not one in the course of repeated transactions of a like nature;

(11) transacting business in interstate commerce.

§ 4-33-1502 Consequences of transacting business without authority.

(a) A foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.

(b) The successor to a foreign corporation that transacted business in this state without a certificate of authority and the assignee of a cause of action arising out of that business may not maintain a proceeding on that cause of action in any court in this state until the foreign corporation or its successor obtains a certificate of authority.

(c) A court may stay a proceeding commenced by a foreign corporation, its successor, or assignee until it determines whether the foreign corporation or its successor requires a certificate of authority. If it so determines, the court may further stay the proceeding until the foreign corporation or its successor obtains the certificate.

(d)(1) A foreign corporation that transacts business in this state without a certificate of authority shall pay a civil penalty to the state not to exceed five thousand dollars ($5,000) for each year and partial year during which it transacted business without a certificate of authority, beginning with the date it began transacting business in this state and ending on the date it obtains a certificate of authority.

(2)(A) The civil penalty imposed by this subsection may be recovered in a suit brought by the Secretary of State.

(B)(i) In addition to any civil penalty, if the court finds that a foreign corporation has transacted business in violation of this chapter, the court shall issue an injunction restraining the foreign corporation from any further transactions or the exercise of any rights and privileges in this state.

(ii) The injunction shall remain in effect until:

(a) All civil penalties and any interest and court costs assessed by the court have been paid; and

(b) The foreign corporation has complied with the provisions of this subchapter.

(e) The failure of a foreign corporation to obtain a certificate of authority does not impair the validity of its corporate acts or prevent it from defending any proceeding in this state.

§ 4-33-1503 Application for certificate of authority.

(a) A foreign corporation may apply for a certificate of authority to transact business in this state by delivering an application to the Secretary of State. The application must set forth:

(1) the name of the foreign corporation or, if its name is unavailable for use in this state, a corporate name that satisfies the requirements of § 4-33-1506;

(2) the name of the state or country under whose law it is incorporated;

(3) the date of incorporation and period of duration;

(4) the street address of its principal office;

(5) the information required by § 4-20-105(a);

(6) the names and usual business or home addresses of its current directors and officers;

(7) whether the foreign corporation has members; and

(8) whether the corporation, if it had been incorporated in this state, would be a public benefit, mutual benefit or religious corporation.

(b) The foreign corporation shall deliver with the completed application a certificate of existence (or a document of similar import) duly authenticated by the Secretary of State or other official having custody of corporate records in the state or country under whose law it is incorporated.

§ 4-33-1504 Amended certificate of authority.

(a) A foreign corporation authorized to transact business in this state must obtain an amended certificate of authority from the Secretary of State if it changes:

(1) its corporate name;

(2) the period of its duration;

(3) any of the information required by § 4-20-105(a); or

(4) the state or country of its incorporation.

(b) The requirements of § 4-33-1503 for obtaining an original certificate of authority apply to obtaining an amended certificate under this section.

§ 4-33-1505 Effect of certificate of authority.

(a) A certificate of authority authorizes the foreign corporation to which it is issued to transact business in this state subject, however, to the right of the state to revoke the certificate as provided in this chapter.

(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 chapter, is subject to the same duties, restrictions, penalties, and liabilities now or later imposed on, a domestic corporation of like character.

(c) This chapter does not authorize this state to regulate the organization or internal affairs of a foreign corporation authorized to transact business in this state.

§ 4-33-1506 Corporate name of foreign corporation.

(a) If the corporate name of a foreign corporation does not satisfy the requirements of § 4-33-401, the foreign corporation, to obtain or maintain a certificate of authority to transact business in this state, may use a fictitious name to transact business in this state if its real name is unavailable and it delivers to the Secretary of State for filing a copy of the resolution of its board of directors, certified by its secretary, adopting the fictitious name.

(b) Except as authorized by subsections (c) and (d) of this section, the corporate name (including a fictitious name) of a foreign corporation must be distinguishable upon the records of the Secretary of State from:

(1) the corporate name of a nonprofit or business corporation incorporated or authorized to transact business in this state;

(2) a corporate name reserved or registered under § 4-33-402 or § 4-33-403 of this chapter or § 4-27- 402 or § 4-27-403; and

(3) the fictitious name of another foreign business or nonprofit corporation authorized to transact business in this state.

(c) A foreign corporation may apply to the Secretary of State for authorization to use in this state the name of another corporation (incorporated or authorized to transact business in this state) that is not distinguishable upon the records of the Secretary of State from the name applied for. The Secretary of State shall authorize use of the name applied for if:

(d) A foreign corporation may use in this state the name (including the fictitious name) of another domestic or foreign business or nonprofit corporation that is used in this state if the other corporation is incorporated or authorized to transact business in this state and the foreign corporation:

(1) has merged with the other corporation;

(2) has been formed by reorganization of the other corporation; or

(3) has 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 this state changes its corporate name to one that does not satisfy the requirements of § 4-33-401, it shall not transact business in this state under the changed name until it adopts a name satisfying the requirements of § 4-33-401 and obtains an amended certificate of authority under § 4-33-1504.

§ 4-33-1507 Registered office and registered agent of foreign corporation.

Each foreign corporation authorized to transact business in this state must continuously maintain in this state:

(1) a registered office with the same address as that of its registered agent; and

(2) a registered agent, who may be:

(i) an individual who resides in this state and whose office is identical with the registered office;

(ii) a domestic business or nonprofit corporation whose office is identical with the registered office; or

(iii) a foreign business or nonprofit corporation authorized to transact business in this state whose office is identical with the registered office.

§ 4-33-1508 Change of registered office or registered agent of foreign corporation.

(a) A foreign corporation authorized to transact business in this state may change its registered office or registered agent by delivering to the Secretary of State for filing a statement of change that sets forth:

(1) its name;

(2) the street address of its current registered office;

(3) if the current registered office is to be changed, the street address of its new registered office;

(4) the name of its current registered agent;

(5) if the current registered agent is to be changed, the name of its new registered agent and the new agent's written consent (either on the statement or attached to it) to the appointment; and

(6) that after the change or changes are made, the street addresses of its registered office and the office of its registered agent will be identical.

(b) If a registered agent changes the street address of its business office, the agent may change the address of the registered office of any foreign corporation for which the agent is the registered agent 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) of this section and recites that the corporation has been notified of the change.

§ 4-33-1509 Resignation of registered agent of foreign corporation.

(a) The registered agent of a foreign corporation may resign as agent by signing and delivering to the Secretary of State for filing the original and two (2) exact or conformed copies of 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 the other copy to the foreign corporation at its principal office address, if known.

(c) The agency is terminated, and the registered office discontinued if so provided, on the thirty-first day after the date on which the statement was filed.

§ 4-33-1510 Service on foreign corporation.

(a) The registered agent of a foreign corporation authorized to transact business in this state is the 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 at its principal office shown in its application for a certificate of authority if the foreign corporation:

(1) has no registered agent or its registered agent cannot with reasonable diligence be served;

(2) has withdrawn from transacting business in this state under § 4-33-1520; or

(3) has had its certificate of authority revoked under § 4-33-1531.

(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; or

(3) five (5) days after its deposit in the United States mail, as evidenced by the postmark if mailed postpaid and correctly addressed.

(d) This section does not prescribe the only means, or necessarily the required means, of serving a foreign corporation.

§ 4-33-1511 Reserved

[Reserved] – § 4-33-1519

§ 4-33-1520 Withdrawal of foreign corporation.

(a) A foreign corporation authorized to transact business in this state may not withdraw from this state until it obtains a certificate of withdrawal from the Secretary of State.

(b) A foreign corporation authorized to transact business in this state may apply for a certificate of withdrawal by delivering an application to the Secretary of State for filing. The application must set forth:

(1) the name of the foreign corporation and the name of the state or country under whose law it is incorporated;

(2) that it is not transacting business in this state and that it surrenders its authority to transact business in this state;

(3) that it revokes the authority of its registered agent to accept service on its behalf and appoints the Secretary of State as its agent for service of process in any proceeding based on a cause of action arising during the time it was authorized to do business in this state;

(4) a mailing address to which the Secretary of State may mail a copy of any process served on him or her under subdivision (b)(3) of this section; and

(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 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 post office address set forth in its application for withdrawal.

§ 4-33-1521 Reserved

[Reserved] – § 4-33-1529

§ 4-33-1530 Grounds for revocation.

(a) The Secretary of State may commence a proceeding under § 4-33-1531 to revoke the certificate of authority of a foreign corporation authorized to transact business in this state if:

(1) the foreign corporation does not pay within one hundred twenty (120) days after they are due any franchise taxes or penalties imposed by this chapter or other law;

(2) the foreign corporation is without a registered agent or registered office in this state for one hundred twenty (120) days or more;

(3) the foreign corporation does not inform the Secretary of State under § 4-33-1508 or § 4-33-1509 that its registered agent or registered office has changed, that its registered agent has resigned, or that its registered office has been discontinued within ninety (90) days of the change, resignation, or discontinuance;

(4) an incorporator, director, officer, or agent of the foreign corporation signed a document such person knew was false in any material respect with 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 it has been dissolved or disappeared as the result of a merger; or

(6) the corporation does not file the annual disclosure statement required under § 4-33-131 within sixty

(60) days after it is due.

(b) The Attorney General may commence a proceeding under § 4-33-1531 to revoke the certificate of authority of a foreign corporation authorized to transact business in this state if:

(1) the corporation has continued to exceed or abuse the authority conferred upon it by law; or

(2) the corporation would have been a public benefit corporation had it been incorporated in this state and that its corporate assets in this state are being fraudulently misapplied or wasted.

§ 4-33-1531 Procedure and effect of revocation.

(a) The Secretary of State upon determining that one (1) or more grounds exist under § 4-33-1530 for revocation of a certificate of authority shall serve the foreign corporation with written notice of that determination under § 4-33-1510.

(b) The Attorney General upon determining that one or more grounds exist under § 4-33-1530(b) for revocation of a certificate of authority shall request the Secretary of State to serve, and the Secretary of State shall serve the foreign corporation with written notice of that determination under § 4-33-1510.

(c) 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 for revocation determined by the Secretary of State does not exist within sixty (60) days after service of the notice is perfected under § 4- 33-1510, the Secretary of State may revoke the foreign corporation's certificate of authority by signing a certificate of revocation that recites the ground or grounds for revocation and its effective date. The Secretary of State shall file the original of the certificate and serve a copy on the foreign corporation under § 4-33-1510.

(d) The authority of a foreign corporation to transact business in this state ceases on the date shown on the certificate revoking its certificate of authority.

(e) 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 this state. 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 its principal office shown in its application for a certificate of authority or in any subsequent communications received from the corporation stating the current mailing address of its principal office.

(f) Revocation of a foreign corporation's certificate of authority does not terminate the authority of the registered agent of the corporation.

§ 4-33-1532 Appeal from revocation.

(a) A foreign corporation may appeal the Secretary of State's revocation of its certificate of authority to the Circuit Court of Pulaski County within thirty (30) days after the service of the certificate of revocation is perfected under § 4-33-1510. The foreign corporation appeals by petitioning the court to set aside the revocation and attaching to the petition copies of its certificate of authority and the Secretary of State's certificate of revocation.

(b) The court may summarily order the Secretary of State to reinstate the certificate of authority or may take any other action the court considers appropriate.

§ 4-33-1601 Conversion to a public water authority.

A corporation which meets the definition of a qualified corporation, as defined by § 4-35-103, may adopt a plan to convert its entity status from that of a nonprofit corporation to a water authority pursuant to § 4-35-101 et seq., unless the articles or bylaws require otherwise, if the conversion is approved:

(1) By a majority of the members of the board of directors of the corporation; and

(2) If the corporation has members, by the lesser of:

(A) Two-thirds ( ⅔ ) of the votes cast by the members in person or by proxy at a regular or special meeting of the members at which a quorum as defined in § 4-33-722 is present; or

(B) A majority of the members.

§ 4-33-1701 Application to existing domestic corporations.

All provisions of this chapter shall apply to all domestic corporations incorporated on or after January 1, 1994, as specified in § 4-33-1706. A corporation incorporated prior to January 1, 1994, under any general statute of this state providing for incorporation of nonprofit corporations may elect to be governed by the provisions of this chapter by amending its articles of incorporation to provide that it shall be so governed. Such election may be made at any time on or after midnight, December 31, 1993, but once made shall be irrevocable. The amendment to the articles of incorporation effecting such election must be approved by the affirmative vote of at least a majority of the members of the corporation or if such corporation has no members, by the affirmative vote of at least a majority of the directors of the corporation. Domestic corporations existing prior to midnight, December 31, 1993, which do not elect to be governed by its provisions shall continue to be governed by preexisting law. Except for any applicable corporate franchise tax laws or any applicable income tax exemption laws referenced herein, nothing in this chapter shall be deemed to apply to domestic corporations or associations regulated by the Insurance Commissioner under title 23 of the Arkansas Code or related laws as nonprofit corporations including but not limited to hospital or medical service corporations, health maintenance organizations, and fraternal benefit societies.

§ 4-33-1702 Application to qualified foreign corporations.

A foreign corporation authorized to transact business in this state on January 1, 1994, is subject to this chapter but is not required to obtain a new certificate of authority to transact business under this chapter. Except for any applicable corporate franchise tax laws or any applicable income tax exemption laws referenced herein, nothing in this chapter shall be deemed to apply to foreign corporations and associations regulated by the Insurance Commissioner under title 23 of the Arkansas Code or related laws as nonprofit foreign corporations including but not limited to foreign hospital or medical service corporations, health maintenance organizations, and fraternal benefit societies.

§ 4-33-1703 Saving provisions.

(a) Except as provided in subsection (b) of this section, the repeal of a statute by this chapter does not affect:

(1) the operation of the statute or any action taken under it before its repeal;

(2) any ratification, right, remedy, privilege, obligation, or liability acquired, accrued, or incurred under the statute before its repeal;

(3) any violation of the statute or any penalty, forfeiture, or punishment incurred because of the violation, before its repeal;

(4) any proceeding, reorganization, or dissolution commenced under the statute before its repeal, and the proceeding, reorganization, or dissolution may be completed in accordance with the statute as if it had not been repealed; or

(5) any meeting of members or directors or action by written consent noticed or any action taken before its repeal as a result of a meeting of members or directors or action by written consent.

(b) If a penalty or punishment imposed for violation of a statute repealed by this chapter is reduced by this chapter, the penalty or punishment if not already imposed shall be imposed in accordance with this chapter.

§ 4-33-1704 Severability.

If any provision of this chapter or its application to any person or circumstance is held invalid by a court of competent jurisdiction, the invalidity does not affect other provisions or applications of this chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.

§ 4-33-1705 Repeal.

All laws and parts of laws in conflict with this chapter are hereby repealed.

§ 4-33-1706 Effective date.

This chapter takes effect January 1, 1994.

§ 4-33-1707 Public benefit, mutual benefit and religious corporations.

Upon electing to be governed by the provisions of this chapter, each domestic corporation existing on January 1, 1994, that becomes subject to this chapter shall be designated as a public benefit, mutual benefit or religious corporation as follows:

(1) Any corporation designated by statute as a public benefit corporation, a mutual benefit corporation or a religious corporation is the type of corporation designated by statute;

(2) Any corporation that does not come within subsection (1) of this section but is organized primarily or exclusively for religious purposes is a religious corporation;

(3) Any corporation that does not come within subsection (1) or (2) of this section but that is recognized as exempt under section 501(c)(3) of the Internal Revenue Code, or any successor section, is a public benefit corporation;

(4) Any corporation that does not come within subsection (1), (2), or (3) of this section, but that is organized for a public or charitable purpose and that upon dissolution must distribute its assets to a public benefit corporation, the United States, a state or a person that is recognized as exempt under section 501(c)(3) of the Internal Revenue Code, or any successor section, is a public benefit corporation; and

(5) Any corporation that does not come within subsection (1), (2), (3), or (4) of this section is a mutual benefit corporation.

General information, not legal advice. Statutory text is reproduced from the official Arkansas source and may not reflect the most recent amendments.

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