Title 47 — CORPORATIONS

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 of incorporation as of the effective date of the amendment or to delete a provision that is not required to be contained in the articles of…

If a corporation has not yet issued shares, its board of directors, or its incorporators, if it has no board of directors, may adopt one or more amendments to the corporation's articles of incorporation. Source: SL 2005, ch 239 , § 236.

If a corporation has issued shares, an amendment to the articles of incorporation shall be adopted in the following manner: (1) The proposed amendment must be adopted by the board of directors; (2) Except as provided in §§ 47-1A-1005 , and 47-1A-1007 to 47-1A-1008 , inclusive, af…

If a corporation has more than one class of shares outstanding, the holders of the outstanding shares of a class are entitled to vote as a separate voting group, if shareholder voting is otherwise required by this chapter, on a proposed amendment to the articles of incorporation …

Unless the articles of incorporation provide otherwise, a corporation's board of directors may adopt amendments to the corporation's articles of incorporation without shareholder approval: (1) To extend the duration of the corporation if it was incorporated at a time when limited…

After an amendment to the articles of incorporation has been adopted and approved in the manner required by this chapter and by the articles of incorporation, the corporation shall deliver to the Office of the Secretary of State, for filing, articles of amendment, which shall set…

A corporation's board of directors may restate its articles of incorporation at any time, with or without shareholder approval, to consolidate all amendments into a single document. If the restated articles include one or more new amendments that require shareholder approval, the…

A corporation that restates its articles of incorporation shall deliver to the Office of the Secretary of State for filing articles of restatement setting forth the name of the corporation and the text of the restated articles of incorporation together with a certificate which st…

The Office of 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 §

A corporation's articles of incorporation may be amended without action by the board of directors or shareholders to carry out a plan of reorganization ordered or decreed by a court of competent jurisdiction under the authority of a law of the United States. The individual or ind…

An amendment to the articles of incorporation does not affect a cause of action existing against or in favor of the corporation, a proceeding to which the corporation is a party, or the existing rights of persons other than shareholders of the corporation. An amendment changing a…

This chapter shall be known and may be cited as the South Dakota Business Corporation Act. Source: SL 2005, ch 239 , § 1.

A corporation's shareholders may amend or repeal the corporation's bylaws. A corporation's board of directors may amend or repeal the corporation's bylaws, unless: (1) The articles of incorporation or § 47-1A-1021 reserve that power exclusively to the shareholders in whole or par…

A bylaw that increases a quorum or voting requirement for the board of directors may be amended or repealed: (1) If originally adopted by the shareholders, only by the shareholders, unless the bylaw otherwise provides; (2) If adopted by the board of directors, either by the share…

Terms used in §§ 47-1A-1101 to 47-1A-1108 , inclusive, mean: (1) "Merger," a business combination pursuant to §§ 47-1A-1102 to 47-1A-1102.5 , inclusive; (2) "Party to a merger" or "party to a share exchange," any domestic or foreign corporation or eligible entity that will: (a) M…

One or more domestic business corporations may merge with one or more domestic or foreign business corporations or eligible entities pursuant to a plan of merger, or two or more foreign business corporations or domestic or foreign eligible entities may merge into a new domestic b…

A foreign business corporation, or a foreign eligible entity, may be a party to a merger with a domestic business corporation, or may be created by the terms of the plan of merger, only if the merger is permitted by the foreign business corporation or eligible entity. Source: SL …

If the organic law of a domestic eligible entity does not provide procedures for the approval of a merger, a plan of merger may be adopted and approved, the merger effectuated, and appraisal rights exercised in accordance with the procedures in §§ 47-1A-1101 to 47-1A-1108 , inclu…

The plan of merger must include: (1) The name of each domestic or foreign business corporation or eligible entity that will merge and the name of the domestic or foreign business corporation or eligible entity that will be the survivor of the merger; (2) The terms and conditions …

The plan of merger may include a provision that the plan may be amended prior to filing articles of merger, but if the shareholders of a domestic corporation that is a party to the merger are required or permitted to vote on the plan, the plan must provide that subsequent to appr…

Property held in trust or for charitable purposes under the laws of this state by a domestic or foreign eligible entity may not be diverted by a merger from the objects for which it was donated, granted, or devised, until the eligible entity obtains an order of circuit court spec…

Through a share exchange: (1) A domestic corporation may acquire all of the shares of one or more classes or series of shares of another domestic or foreign corporation, or all of the interests of one or more classes or series of interests of a domestic or foreign other entity, i…

A foreign corporation or eligible entity may be a party to a share exchange only if the share exchange is permitted by the corporation or other entity is organized or by which it is governed. Source: SL 2005, ch 239 , § 256.

If the organic law of a domestic other entity does not provide procedures for the approval of a share exchange, a plan of share exchange may be adopted and approved, and the share exchange effectuated, in accordance with the procedures, if any, for a merger. If the organic law of…

The plan of share exchange must include: (1) The name of each corporation or other entity whose shares or interests will be acquired and the name of the corporation or other entity that will acquire those shares or interests; (2) The terms and conditions of the share exchange; (3…

The plan of share exchange may include a provision that the plan may be amended prior to filing articles of share exchange, but if the shareholders of a domestic corporation that is a party to the share exchange are required or permitted to vote on the plan, the plan must provide…

The provisions of §§ 47-1A-1103 to 47-1A-1103.1 , inclusive, do not limit the power of a domestic corporation to acquire shares of another corporation or interests in another entity in a transaction other than a share exchange. Source: SL 2005, ch 239 , § 260.

In the case of a domestic corporation that is a party to a merger or share exchange: (1) The plan of merger or share exchange must be adopted by the board of directors; (2) Except as provided in subdivision (7) and in §§ 47-1A-1105 to 47-1A-1105.2 , inclusive, after adopting the …

A domestic parent corporation that owns shares of a domestic or foreign subsidiary corporation that carry at least ninety percent of the voting power of each class and series of the outstanding shares of the subsidiary that have voting power may merge the subsidiary into itself o…

If under § 47-1A-1105 approval of a merger by the subsidiary's shareholders is not required, the parent corporation shall, within ten days after the effective date of the merger, notify each of the subsidiary's shareholders that the merger has become effective. Source: SL 2005, c…

Except as provided in §§ 47-1A-1105 and 47-1A-1105.1 , a merger between a parent and a subsidiary shall be governed by the provisions of §§ 47-1A-1101 to 47-1A-1108 , inclusive, applicable to mergers generally. Source: SL 2005, ch 239 , § 264.

After a plan of merger or share exchange has been adopted and approved as required by this chapter, articles of merger or share exchange shall be executed on behalf of each party to the merger or share exchange by any officer or other duly authorized representative. The articles …

When a merger becomes effective: (1) The corporation or eligible entity that is designated in the plan of merger as the survivor continues or comes into existence, as the case may be; (2) The separate existence of every corporation or eligible entity that is merged into the survi…

When a share exchange becomes effective, the shares of each domestic corporation that are to be exchanged for shares or other securities, interests, obligations, rights to acquire shares or other securities, cash, other property, or any combination of the foregoing, are entitled …

Any person who becomes subject to owner liability for some or all of the debts, obligations, or liabilities of any entity as a result of a merger or share exchange has owner liability only to the extent provided in the organic law of the entity and only for those debts, obligatio…

Upon a merger becoming effective, a foreign corporation, or a foreign eligible entity, that is the survivor of the merger is deemed to: (1) Agree that service of process in a proceeding to enforce the rights of shareholders of each domestic corporation that is a party to the merg…

The effect of a merger or share exchange on the owner liability of a person who had owner liability for some or all of the debts, obligations, or liabilities of a party to the merger or share exchange shall be as follows: (1) The merger or share exchange does not discharge any ow…

Unless otherwise provided in a plan of merger or share exchange or in the laws under which a foreign business corporation or a domestic or foreign eligible entity that is a party to a merger or a share exchange is organized or by which it is governed, after the plan has been adop…

Any document satisfying the following requirements, and the requirements of any other section that adds to or varies these requirements, is entitled to be filed by the Office of the Secretary of State: (1) The document is required or permitted to be filed in the Office of the Sec…

If a provision of this chapter permits any of the terms of a plan or a filed document to be dependent on facts objectively ascertainable outside the plan or filed document, the following provisions apply: (1) The manner in which the facts will operate upon the terms of the plan o…

If a provision of a filed document is made dependent on a fact ascertainable outside of the filed document, and that fact is not ascertainable by reference to a source described in subsection 47-1A-120.1 (2)(a) or a document that is a matter of public record, or the affected shar…

The following provisions of a plan or filed document may not be made dependent on facts outside the plan or filed document: (1) The name and address of any person required in a filed document; (2) The registered office of any entity required in a filed document; (3) The registere…

No approval of the shareholders of a corporation is required, unless the articles of incorporation otherwise provide: (1) To sell, lease, exchange, or otherwise dispose of any or all of the corporation's assets in the usual and regular course of business; (2) To mortgage, pledge,…

A sale, lease, exchange, or other disposition of assets, other than a disposition described in § 47-1A-1201 , requires approval of the corporation's shareholders if the disposition would leave the corporation without a significant continuing business activity. If a corporation re…

A disposition that requires approval of the shareholders under § 47-1A-1202 shall be initiated by a resolution by the board of directors authorizing the disposition. After adoption of such a resolution, the board of directors shall submit the proposed disposition to the sharehold…

If a disposition is required to be approved by the shareholders under § 47-1A-1202 , and if the approval is to be given at a meeting, the corporation shall notify each shareholder, whether or not entitled to vote, of the meeting of shareholders at which the disposition is to be s…

Unless the articles of incorporation or the board of directors acting pursuant to § 47-1A-1202.1 requires a greater vote, or a greater number of votes to be present, the approval of a disposition by the shareholders shall require the approval of the shareholders at a meeting at w…

After a disposition has been approved by the shareholders under § 47-1A-1202.1 , and at any time before the disposition has been consummated, it may be abandoned by the corporation without action by the shareholders, subject to any contractual rights of other parties to the dispo…

A disposition of assets in the course of dissolution under §§ 47-1A-1401 to 47-1A-1440 , inclusive, is not governed by §§ 47-1A-1202 to 47-1A-1202.6 , inclusive. Source: SL 2005, ch 239 , § 278.

The assets of a direct or indirect consolidated subsidiary shall be deemed the assets of the parent corporation for the purposes of §§ 47-1A-1202 to 47-1A-1202.6 , inclusive. Source: SL 2005, ch 239 , § 279.