§ 7-1.2-105 - Execution, filing and recording of instruments.
SECTION 7-1.2-105
§ 7-1.2-105 Execution, filing andrecording of instruments. – (a) Whenever any instrument is to be filed with the secretary of state or inaccordance with this chapter, the instrument must be executed as follows:
(1) The articles of incorporation, and any other instrumentto be filed before the election of the initial board of directors if theinitial directors were not named in the articles of incorporation, must besigned by the incorporator or incorporators (or, in the case of any such otherinstrument, such incorporator's or incorporators' successors and assigns).
(2) All other instruments must be signed:
(i) By any authorized officer of the corporation; or
(ii) If it appears from the instrument that there are noauthorized officers, then by a majority of the directors or by the director ordirectors authorized by a majority of the directors; or
(iii) If it appears from the instrument that there are noauthorized officers or directors, then by the holders of record of alloutstanding shares, or by those holders of record designated by a majority ofall outstanding shares; or
(b) Whenever this chapter requires any instrument to beacknowledged, such requirement is satisfied by either:
(1) The formal acknowledgment by any individual signing theinstrument that it is his or her act and deed or the act and deed of thecorporation, and that the facts stated therein are true. This acknowledgmentmust be made before a individual who is authorized by the law of the place ofexecution to take acknowledgment; or
(2) The signature, without more, of the individual orindividuals signing the instrument, in which case such signature or signaturesconstitutes the affirmation or acknowledgment of the signatory, under penaltiesof perjury, that the instrument is that individual's act and deed or the actand deed of the corporation, and that the facts stated therein are true.
(c) Whenever any instrument is to be filed with the secretaryof state or in accordance with this section or chapter, such requirement meansthat:
(1) The signed instrument must be delivered to the office ofthe secretary of state in either paper format or electronic transmission oranother medium authorized by the secretary of state;
(2) All taxes and fees authorized by law to be collected bythe secretary of state in connection with the filing of the instrument must betendered to the secretary of state; and
(3) Upon delivery of the instrument, the secretary of stateshall record the date and time of its delivery. Upon such delivery and tenderof the required taxes and fees, the secretary of state shall certify that theinstrument has been filed in the secretary of state's office by endorsing uponthe signed instrument the word "Filed", and the date and time of its filing.This endorsement is the "filing date" of the instrument, and is conclusive ofthe date and time of its filing in the absence of actual fraud.
(d) Any instrument filed in accordance with subsection (c) ofthis section is effective upon its filing date. Any instrument may provide thatit is not to become effective until a specified time subsequent to the time itis filed, but not later than the 90th day after the date of its filing.
(e) If another section of this chapter specificallyprescribes a manner of executing, acknowledging or filing a specifiedinstrument or a time when that instrument becomes effective which differs fromthe corresponding provisions of this section, then such other section governs.
(f) Whenever any instrument authorized to be filed with thesecretary of state under any provision of this chapter, has been so filed andis an inaccurate record of the corporate action therein referred to, or wasdefectively or erroneously executed, sealed or acknowledged, the instrument maybe corrected by filing with the secretary of state a certificate of correctionof the instrument which must be executed, acknowledged and filed in accordancewith this section. The certificate of correction must specify the inaccuracy ordefect to be corrected and set forth the portion of the instrument in correctedform. The corrected instrument must be specifically designated as such in itsheading, specify the inaccuracy or defect to be corrected, and set forth theentire instrument in corrected form. An instrument corrected in accordance withthis section is effective as of the date the original instrument was filed,except as to those individuals who are substantially and adversely affected bythe correction and as to those individuals the instrument as corrected iseffective from its filing date.
(g) Notwithstanding that any instrument authorized to befiled with the secretary of state under this chapter is when filedinaccurately, defectively or erroneously executed, sealed or acknowledged, orotherwise defective in any respect, the secretary of state has no liability toany individual for the preclearance for filing, the acceptance for filing orthe filing and indexing of such instrument by the secretary of state.
(h) Any signature on any instrument authorized to be filedwith the secretary of state under this chapter may be a facsimile or anelectronically transmitted signature.