(a) Whenever any filing instrument is to be filed with the Secretary of State or in accordance with this chapter, such instrument shall be executed as follows:
(1) Except as provided in subsection (a)(3), the certificate of incorporation, and any other instrument to be filed before the election of the initial board of directors if the initial directors were not named in the certificate of incorporation, shall be signed by the incorporator or incorporators or the successors and assigns of the incorporator or incorporators. If any incorporator is not available then any other instrument may be signed, with the same effect as if the incorporator had signed it, by any person for whom or on whose behalf the incorporator, in executing the certificate of incorporation, was acting directly or indirectly as employee or agent, provided that the other instrument shall state that the incorporator is not available and the reason therefor, that the incorporator in executing the certificate of incorporation was acting directly or indirectly as employee or agent for or on behalf of the person, and that the person's signature on the instrument is otherwise authorized and not wrongful.
(2) Except as provided in subsection (a)(3), all other filing instruments shall be signed:
(i) by any authorized officer of the corporation; or
(ii) if it shall appear from the filing instrument that there are no such officers, then by a majority of the directors or by such directors as may be designated by the board of directors; or
(iii) if it shall appear from the filing instrument that there are no such officers or directors, then by the holders of record, or such of them as may be designated by the holders of record, of a majority of all outstanding shares of stock; or
(iv) by the holders of record of all outstanding shares of stock.
(3) If the corporation is in the hands of a receiver, trustee, or other court-appointed fiduciary, by that fiduciary.
(b) The person executing the filing instrument shall sign it and state beneath or opposite the person's signature the person's name and the capacity in which the filing instrument is signed. The filing instrument may, but need not, contain a corporate seal, attestation, acknowledgment, or verification.
(c) Whenever a provision of this chapter permits any of the terms of a plan or a filing instrument to be dependent on facts objectively ascertainable outside the plan or filing instrument, the following provisions apply:
(1) The manner in which the facts will operate upon the terms of the plan or filing instrument must be set forth in the plan or filing instrument.
(2) The facts may include:
(i) any of the following that are available in a nationally recognized news or information medium either in print or electronically: statistical or market indices, market prices of any security or group of securities, interest rates, currency exchange rates, or similar economic or financial data;
(ii) a determination or action by any person or body, including the corporation or any other party to a plan or filing instrument; or
(iii) the terms of, or actions taken under, an agreement to which the corporation is a party, or any other agreement or document.
(3) As used in this subsection (c), "plan" means a plan of conversion, merger, or share exchange.
(4) The following provisions of a plan or filing instrument may not be made dependent on facts outside the plan or filed document:
(i) the name and address of any person required in a filing instrument;
(ii) the registered office of any entity required in a filing instrument;
(iii) the registered agent of any entity required in a filing instrument;
(iv) the number of authorized shares of stock and designation of each class or series of stock;
(v) the effective date and time of a filing instrument as determined under Article 4 of Chapter 1; and
(vi) any required statement in a filing instrument of the date on which the underlying transaction was approved or the manner in which that approval was given.
(5) If a provision of a filing instrument is made dependent on a fact ascertainable outside of the filing instrument, and that fact is neither ascertainable by reference to a source described in subsection (c)(2)(i) or a document that is a matter of public record, nor have the affected stockholders received notice of the fact from the corporation, then the corporation shall file with the Secretary of State a certificate of amendment to the filing instrument setting forth the fact promptly after the time when the fact referred to is first ascertainable or thereafter changes. A certificate of amendment under this subsection (c)(5) is deemed to be authorized by the authorization of the original filing instrument to which it relates and may be filed by the corporation without further action by the board of directors or the stockholders.
Last modified: May 3, 2021