Ordinance
107 - Nonprofit Corporations
107-3-1 Short Title
This Code
shall be known and may be cited as the Tulalip Tribal Corporations Chapter.
107-3-2 Definitions
a. Corporation
or Domestic Corporation means a corporation charted under the provisions
of this Chapter.
b. Articles
of Incorporation means the original or reinstated articles of incorporation
or articles of consolidation and all amendments thereto including
articles of merger.
c. Shares
means the units into which the proprietary interests in a corporation,
whether before or after incorporation.
d. Subscriber
means one who subscribes for shares in a corporation, whether before
or after incorporation.
e. Shareholder
means one who is a holder of record or shares in a corporation.
f. Authorized
Shares means the shares of all classes which the corporation is authorized
to issue.
g. Net
Assets means the amount by which the total assets of a corporation
is authorized to issue.
h. Stated
Capital means, at any particular time, the sum of:
1.
The par value of all shares that have been issued; and
2.
Such amounts not included in clause (1) of this subsection as have
been transferred to stated capital of the corporation, whether upon
the issue of shares as a share dividend or otherwise, minus all
reductions from such sums as have been affected in a manner permitted
by law.
i. Surplus
means the excess of the net assets of a corporation over its stated
capital.
j. Earned
Surplus means the portions of the surplus of a corporation equal to
the balance of its net profits, income, gains and losses from the
date of incorporation, or from the latest date when a deficit was
eliminated by an application of its capital surplus or stated capital
date when a deficit was eliminated by an application of its capital
surplus or stated capital or otherwise, after deducting subsequent
distributions to shareholders and transfer to stated capital and capital
surplus to the extent such distribution and transfer are made out
of earned surplus.
k. Capital
Surplus means the portions of the surplus of a corporation equal to
the balance of its net profits, income, gains and losses from the
date of incorporation, or form the latest date when a deficit was
eliminated by an application of its capital surplus or stated capital
or otherwise, after deducting subsequent distributions to shareholders
and transfer to stated capital and capital surplus to the extent such
distribution and transfers are made out of earned surplus.
l. By-laws
means the Code or Codes of Rules adopted for the regulation or management
of the affairs of a corporation irrespective of the names or names
by which such rules are designated.
m. Member
means one having membership rights in a corporation in accordance
with the provisions of its articles of incorporation or by-laws.
n. Board
of Directors means the group of persons vested with the management
of the affairs of a corporation irrespective of the name by which
such group is designated.
o. Insolvent
means that a corporation is unable to pay its debts as they become
due in the usual course of its affairs.
p. Secretary
means the Secretary of the Board of Directors that the agent or agents
designated by her or him to perform any function vested in the Secretary
by this Chapter.
q. Reservation
means the Tulalip Indian Reservation.
r. The
Court means except where otherwise specified, the Tulalip Tribal Court.
107-2-3 Applicability
The provisions
of this Chapter shall apply to all corporations organized hereunder
or which elect to accept the provisions of this Chapter.
107-2-4 Purpose
Corporations
may be organized under this Chapter for any lawful purpose or purposes
including, but not limited to, one or more of the following purposes:
benevolent; religious, missionary; educational; scientific; research;
literary; musical; social; athletic; patriotic; political; civil; professional;
commercial; industrial; business; or trade association; mutual or civic
improvement; promotion of the Arts.
107-2-5 General Powers
Each corporation
shall have the power:
a. To
have perpetual succession by its corporate name unless a limited period
of duration is stated in its articles of incorporation;
b. To
sue and be sued, complain and defend, in its corporate name;
c. To
have a corporate seal which may be altered at pleasure and to use
the same by causing it, or a facsimile thereof, to be impressed or
affixed in any other manner reproduced;
d. To
purchase, take, receive, lease, take by gift or bequest or otherwise
acquire, own, hold, improve, use, and otherwise deal in and with,
real or personal property, or any interest therein, wherever situated;
e. To
sell convey, mortgage, pledge, lease, exchange, transfer, and otherwise
dispose of all or any part of its property and assets;
f. To
lend money to and otherwise assist its employees other than its officers
and directors;
g. To
purchase, take, receive, subscribe for or otherwise acquire, own,
hold, vote, use, employ, sell, mortgage, loan, pledge, or otherwise
dispose of, and otherwise use and deal in and with, shares or other
interests in, or obligations of, corporations, whether or not incorporated
under this Chapter and whether for profit or not for profit, associations,
partnerships, or individuals, or direct or indirect obligation of
the United States, or of any other government, state, territory, governmental
district, or municipality or of any instrumentality thereof or any
tribe;
h. To
make contracts and incur liabilities, borrow money at such rates of
interest as the corporation may determine, issue its notes, bonds,
and other obligations, and secure any of its obligations by mortgage
or pledge of all or any of its property, franchise and income;
i. To
lend money for its corporate purposes, invest and reinvest its funds,
and take and hold real and personal property as security for the payment
of funds so loaned or invested;
j. To
conduct its affairs, carry on its operations, hold property, and have
offices and exercise the powers granted by this Chapter;
k. To
elect or appoint officers and agents of the corporation, and define
their duties and fix their compensation;
l. To
make and alter by-laws, not inconsistent with its articles of incorporation
or with the laws, ordinances, and regulations of the Tulalip Board
of Directors and the United States, for the administration and regulation
of the affairs of the corporation; and
m. Unless
otherwise provided in the articles of incorporation, to make donations
for the public welfare or for religious, charitable, scientific research,
or educational purposes, or for other purposes for which the corporation
is organized.
107-2-6 Defense of Ultra vires
No act
of a corporation and no conveyance or transfer of real or personal property
to or by a corporation shall be invalid by reason of the fact that the
corporation was without capacity or power to do such act or to make
or receive such conveyance or transfer, but such lack of capacity or
power may be asserted:
a. In
a proceeding by a member or a director against the corporation to
enjoin the doing of any act, or the transfer of real or personal property
by or to the corporation. If the act or transfer sought to be enjoined
is being, or is to be, performed pursuant to any contract to which
the corporation is a party, the Court may, if all of the parties to
the contract are parties to the proceeding and if it deems the same
to be equitable, set aside and enjoin the performance of such contract,
as the case may be, compensation for the loss or damages sustained
by either of them which may result from the action of the Court in
setting aside and enjoining the performance of the contract shall
not be awarded by the Court as a loss or damages sustained.
b. In
a proceeding by the corporation, whether acting directly or through
a receiver, trustee, or other legal representative, or through members
in a representative suit, against the incumbent or former officers
or trustee of the corporation; and
c. In
a proceeding by the Tribal Secretary as provided in this Chapter,
to dissolve the corporation or in a proceeding by the Tribal Secretary
to enjoin the corporation from the transaction of authorized acts.
107-2-7 Corporate Name
The Corporate
Name:
a. Shall
not contain any word or phrase which indicates or implies that it
is organized for any purpose other than one or more of the purposes
contained in its articles of incorporation; and
b. Shall
not be the same as, or deceptively similar to the name of any corporation,
whether for profit or not for profit organized under this Chapter
or any other Code or resolution of the Tribe to transact business
or conduct affairs in the Reservation.
107-2-8 Registered Office and Registered Agent
Each corporation
shall have and continuously maintain on this Reservation:
a. A
registered office.
b. A
registered agent.
107-2-9 Registered Agent as an Agent for Services
a. The
registered agent appointed by a corporation as provided in this Chapter
shall be an agent of such corporation upon whom a process, notice,
or demand required or permitted by law to be served upon the corporation
may be served.
b. Whenever
a corporation shall fail to appoint or maintain a registered agent
in this Reservation or whenever its registered agent cannot, with
reasonable diligence, be found at the registered office, then the
Tribal Secretary shall be an agent of such corporation upon whom any
such process, notice, or demand shall be made by delivering to and
leaving with them, or with any clerk having charge of their office,
duplicate copies of such process, notice or demand. In the event that
any such process, notice or demand is served on the Tribal Secretary,
he shall immediately cause one of such copies thereof to be forwarded
by registered or certified mail, addressed to the corporation at its
registered office.
c. The
Tribal Secretary shall keep a record of all processes, notices, and
demands served upon them under this Section, and shall keep a record
therein the time of such service and their action with respect thereto.
d. Nothing
herein contained shall limit or affect the right to serve any process,
notice or demand required or permitted by law to be served upon a
corporation in any other manner now or hereafter permitted by law.
107-2-10 Members
A corporation
may have members or may have no members. If the corporation has members,
the manner of election or appointment and the qualifications and rights
of the members shall be set forth in the articles of incorporation or
the by-laws. If the corporation has no members, that fact shall be set
forth in the articles of incorporation. A corporation may issue certificates
evidencing membership therein.
107-2-11 By-laws
The initial
by-laws of a corporation shall be adopted by its Board of Directors.
The power to alter, amend, or repeal the by-laws or adopt new by-laws
shall be vested in the Board of Directors unless otherwise provided
in the articles of incorporation or the by-laws.
107-2-12 Meetings of Members
a. Meetings
of members may be held at such place within or without the Reservation
as may be provided in the by-laws or, where not inconsistent with
the by-laws, in the notice of the meeting.
b. An
annual meeting of the members shall be held at such time as may be
provided in the by-laws. Failure to hold the annual meeting at the
designated time shall not work a forfeiture or dissolution of the
corporation.
c. Special
meetings of the members may be called by the president, the secretary,
the Board of Directors, or by such other officers or persons or number
of proportion of members as may be provided in the articles of incorporation
or the by-laws. In the absence of a provision fixing the number of
proportion of members entitled to call a meeting, a special meeting
of members may be called by members having at least one-twentieth
(1/20) of the votes to cast at such meeting.
107-2-13 Notice of Meeting Members
Written
or printed notice stating the place, day and hour of the meeting, and,
in case of a special meeting, the purpose or purposes for which the
meeting is called, shall in the absence of a provision in the by-laws
specifying a different period of notice, be delivered not less than
ten (10) or more than fifty (50) days before the date of the meeting,
either personally or by mail; or at the direction of the president,
or the secretary or the officers or persons calling the meeting, to
each members entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the Untied States
mail, addressed to the member at his address as it appears on the records
of the corporation, with postage thereon prepaid.
107-2-14 Voting
a. Members
shall not be entitled to vote except as the right to vote shall be
conferred by the articles of incorporation.
b. A
member may vote in person, or unless the articles of incorporation
or the by-laws otherwise provide, may vote by proxy executed in writing
by the member or his duly authorized attorney-in-fact. No proxy shall
be valid after eleven (11) months from the date of its execution,
unless otherwise provided in the proxy. Where the articles of incorporation
or the by-laws so provide, voting on all matters including the election
of directors or officers where they are to be elected by the members
may be conducted by mail.
c. The
articles of incorporation or the by-laws may provide that in all elections
for directors every member entitled to vote shall have the right to
cumulate his vote and to give one candidate a number of votes equal
to his vote multiplied by the number of directors to be elected or
by distributing such votes on the same principle among any number
of such candidates.
d. If
a corporation has no members or if the members have no right to vote,
the directors shall have the sole voting power and shall have all
of the authority and may take any action herein permitted by members.
107-2-15 Quorum
a. The
by-laws may provide the number of percentage of members entitled to
vote represented in person or by proxy, or the number of percentage
of votes represented in person or by proxy, which shall constitute
a quorum at a meeting of members. In the absence of any such provisions,
members having at least one-tenth (1/10) of the votes entitled to
be cast by the members present or represented by proxy at a meeting
at which a quorum is present, shall be necessary for the adoption
of any matter voted upon by the members, unless a greater proportion
is required by this Chapter, the articles of incorporation or the
by-laws.
b. Unless
otherwise provided by the articles of incorporation or the by-laws,
the members present at a duly organized meeting may continue to do
business until adjournment notwithstanding the withdrawal of enough
members to leave less than a quorum.
c. If
a meeting cannot be organized because a quorum has not attended, those
present may adjourn the meeting from time to time until a quorum is
present, when any business may be transacted that may have been transacted
at the meeting as originally called.
107-2-16 Board of Directors
The affairs
of a corporation shall be managed by a Board of Directors. Directors
need not be residents of the Reservation or members of the corporation
unless the articles of incorporation or the by-laws so require. The
articles of incorporation or the by-laws may prescribe other qualifications
for directors.
107-2-17 Number, Election, Classification and Removal of Directors
a. The
number of directors of a corporation shall be not less than three.
Subject to such limitation, the number of directors shall be fixed
by the by-laws, except as to the number of first Board of Directors,
which number shall be fixed by the articles of incorporation. The
number of directors may be increased or decreased from time to time
by amendment to the by-laws unless the articles of incorporation.
No decrease in number shall have the effect of shortening the term
of any incumbent director. In the absence of a by-law fixing the number
of directors, the number shall be the same as that stated in the articles
of incorporation.
b. The
names and addresses of the members of the first Board of Directors
shall be stated in the articles of incorporation. Such persons shall
hold office until the first annual election of directors or for such
period as may be specified in the articles of incorporation or the
by-laws. Thereafter, directors shall be elected or appointed in the
manner and for the terms provided in the articles of incorporation
or the by-laws. In the absence of a provision fixing the term of office,
the term of office of a director shall be one (1) year.
c. Directors
may be divided into classes; the terms of office of the several classes
need not be uniform. Each director shall hold office for the term
for which he is elected or appointed and until his successor shall
have been elected or appointed and qualified, exception the case of
ex officio directors.
d. A
director may be removed from office pursuant to any procedure therefore
provided in the articles of incorporation or the by-laws, and if none
be provided, may be removed at a meeting called expressly for that
purpose, with or without cause, by such vote as would suffice for
his election.
107-2-18 Vacancies
Any vacancy
occurring in the Board of Directors and any directorship to be filled
by reason of an increase in the number of directors may be filled by
the affirmative vote of a majority of the then members of the Board
of Directors, though less than a quorum of the board, unless the articles
of incorporation or the by-laws provide that a vacancy or directorship
so created shall be filled in some other manner, in which case such
provision shall control. A director elected or appointed, as the case
may be, to fill a vacancy shall be elected or appointed for the unexpired
term of his predecessor in office.
107-2-19 Quorum of Directors
A majority
of the number of directors fixed by the by-laws, or in the absence of
a by-law fixing the number of directors, then of the number stated in
the articles of incorporation shall constitute a quorum for the transaction
of business, unless otherwise provided in the articles of incorporation,
or the by-laws, but in no event shall a quorum consist of less than
one-third (1/3) of the number of directors so stated or fixed. The act
of the majority of the directors present at a meeting at which a quorum
is present shall be the act of the Board of Directors, unless the act
of a greater number is required by this Chapter or by the articles of
incorporation or by-laws.
107-2-20 Committees
If the
articles of incorporation or the by-laws provide, the Board of Directors,
by resolution adopted by a majority of the directors in office, each
of which shall consist of two or more directors, which committees, to
the extent provided in said resolution, in the articles of incorporation
or in the by-laws of the corporation, shall have and exercise the authority
of the Board of Directors in the management of the corporation. Other
committees not having the exercising the authority of the Board of Directors
in the management of the corporation may be designated and appointed
by resolution adopted by a majority of the directors present at a meeting
at which a quorum is present. The designation and appointment of any
such committee and the delegation thereto of authority shall not operate
to relieve the Board of Directors, or any individual director, of any
responsibility imposed upon it or him by law.
107-2-21 Place and Notice of Directors’ Meetings
Meetings
of the Board of Directors, regular or special, may be held at such place
within or without the Reservation, and upon such notice as may be prescribed
by the by-laws, or where not inconsistent with the by-laws, by resolution
of the Board of Directors. A director’s attendance at any meeting
shall constitute a waiver of notice of such meeting, excepting such
attendance at a meeting by the director for the purpose of objecting
to the transaction of business because the meeting is not lawfully called
or convened.
Neither
the business to be transacted, nor the purpose of any regular or special
meeting of the Board of Directors need be specified in the notice or
waiver of such notice, of such meeting, unless otherwise provided in
the articles of incorporation or the by-laws.
107-2-22 Officers
a. The
officers of a corporation shall consist of a president, a secretary,
and a treasurer, and may include one or more vice-presidents, and
such other officers and assistant officers as may be deemed necessary,
each of whom shall be elected or appointed at such time and in such
manner and for such terms not exceeding three (3) years as may be
prescribed in the articles of incorporation or the by-laws. In the
absence of any such provision, all officers shall be elected or appointed
annually by the Board of Directors. If the by-laws so provide, any
two or more offices may be held by the same person, except the offices
of president and secretary.
b. The
articles of incorporation or the by-laws may provide that any one
or more officers of the corporation or other organizations shall be
ex officio members of the Board of Directors.
c. The
officers of a corporation may be designated by such other titles as
may be provided in the articles of incorporation or the by-laws.
d. All
officers and agents of the corporation, as between themselves and
the corporation, shall have such authority and perform such duties
in the management of the property and affairs of the corporation as
may be determined by resolution of the Board of Directors not inconsistent
with the by-laws.
107-2-23 Removal of Officers
Any officer
or agent elected or appointed may be removed by the persons authorized
to elect or appoint such officer or agent whenever, in their judgment,
the best interest of the corporation will be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of
the person so removed. Election or appointment of an officer or agent
shall not itself create contract rights.
107-2-24 Books and Records
Each corporation
shall keep correct and complete books and records of account and shall
keep minutes of the proceedings of its members, Board of Directors,
and committees having any of the authority of the Board of Directors;
and shall keep at its registered office or principle office on the Reservation,
a record of the names and addresses of its members entitled to vote.
All books and records of a corporation may be inspected by any member
having voting rights, or his agent or attorney for any proper purpose
at any reasonable time.
107-2-25 Shares of Stock and Dividends Prohibited
A corporation
organized under this Chapter shall not authorize or issue shares of
stock. No dividend shall be paid and no part of the income of a corporation
shall be distributed to its members, directors, or officers. A corporation
may pay compensation, including pensions, in a reasonable amount to
its members, directors or officers for services rendered, may confer
benefits upon its members in conformity with its purposes, and upon
dissolution or final liquidation, may make distribution to its members
or others as permitted by this Chapter.
107-2-26 Loans to Directors and Officers Prohibited
No loans
shall be made by a corporation organized under this Chapter to its directors
or officers. The directors of a corporation who vote for or assent to
the making of a loan to a director or an officer of the corporation,
and any officer participating in the making of such loan, shall be jointly
and severally liable to the corporation for the amount of such loan
until the repayment thereof.
107-2-27 Incorporators
Three (3)
or more natural persons of the age of twenty-one (21) years or more
may act as incorporators of a corporation by signing, certifying, and
delivering in duplicate to the Tribal Secretary, articles of incorporation
for such corporation.
107-2-28 Articles of Incorporation
a. The
articles of incorporation
3.
The name of the corporation;
4.
The period of duration, which may be perpetual;
5.
The purpose or purposes for which the corporation is organized;
6.
If the corporation is to have no members, a statement to that effect;
7.
If the corporation is to have members, any provision which the incorporators
elect to set forth in the articles of incorporation stating the
qualifications and rights of members and conferring, limiting, or
denying the right to vote;
8.
If the directors or any of them are not to be elected or appointed
by members, a statement of the manner in which such directors shall
be elected or appointed, or that the manner of such election or
appointment of such directors shall be provided in the by-laws;
9.
Any provisions, not inconsistent with this Chapter or any other
law or ordinance of the Tulalip Tribes which the incorporators elect
to set forth in the articles of incorporation for the regulation
of the internal affairs of the corporation, including any provision
for distribution of assets on dissolution or final liquidation and
any provisions which under this Chapter is required or permitted
to be set forth in the by-laws;
10.
The address, including street and number, if any, of its initial
registered office, and the name of its initial registered agent
at such address;
11.
The number of directors constituting the initial board of directors,
and the names and addresses, including street and number, if any,
of the persons who are to serve as the initial directors until the
first annual meeting or until their successors be elected and qualify;
and
12.
The name and address, including street and number, if any of each
incorporator.
b. It
shall be necessary to set forth in the articles of incorporation any
of the corporate powers enumerated in this Chapter.
c. Unless
the articles of incorporation provide that a change in the number
of directors shall be made only by amendment to the articles of incorporation,
a change in the number of directors made by amendment to the by-laws
shall be controlling. Whenever a provision of the articles of incorporation
is inconsistent with the by-law, the provision of the articles of
incorporation shall be controlling.
107-2-29 Filing of Articles of Incorporation
a. Duplicate
originals of the articles of incorporation shall be delivered to the
Tribal Secretary. The Tribal Secretary may by regulation set fees
for filing articles and other filings under this Chapter.
b. If
the Tribal Secretary finds that the articles of incorporation conform
to law, they shall, when all fees and charges have been paid as under
this Chapter prescribed:
1.
Endorse on each of such duplicate originals the work "Filed"
and the month, day, and year of filing thereof;
2.
File one of such duplicate original in their office;
3.
Issue a certificate of incorporation to which they shall affix the
other duplicate original; and
4.
Deliver the certificate of incorporation, together with the duplicate
original of the articles of incorporation affixed thereto, to the
incorporators or their representatives.
107-2-30 Effect of Issuant of Certificate of Incorporation
Upon the
incorporation, the corporate existence shall begin, and such certificate
of incorporation shall be conclusive evidence that all conditions precedent
required to be performed by the corporation have been complied with
and that the corporation has been incorporated under this Chapter, except
as against the Tulalip Tribes in a proceeding to cancel or revoke the
certificate of incorporation. A corporation organized under this Chapter
shall in all matters be subject to the jurisdiction of the Tulalip Tribes
and the Tulalip Tribal Court.
107-2-31 Organization Meeting
a. After
the issuance of the certificate of incorporation, an organization
meeting of the Board of Directors named in the articles of incorporation
shall be held within the Reservation at the call of a majority of
the directors so named for the purpose of adopting by-laws, (unless
the power to adopt by-laws has been reserved by the articles of incorporation
to the members, in which event the by-laws shall be adopted by the
members), electing officers, and the transaction of such other business
as may come before the meeting. The directors calling the meeting
shall give at least five (5) days notice thereof by mail to each director
so named; which notice shall state the time and place of the meeting;
provided, however, that if all the director so named; which notice
shall state the time and place of the meeting; provided, however,
that if all the directors shall waive notice in writing and fix a
time and place for said organization meeting, no notice shall be required
of such meeting.
b. A
first meeting of the members may be held at the call of the directors,
or a majority of them, upon at least five (5) days notice, for such
purposes as shall be stated in the notice of meeting.
107-2-32 Right to Amend Articles of Incorporation
A corporation
may amend its articles of incorporation, from time to time, in any and
as many respects as desired; provided that its articles of incorporation
as amended contain only such provisions as might be lawfully contained
in original articles of incorporation if made at the time of making
such amendment.
107-2-33 Procedure to Amend Articles of Incorporation
Amendment
to the articles of incorporation shall be made in the following manner:
a. Where
there are members having voting rights, the Board of Directors shall
adopt a resolution setting forth the proposed amendment and directing
that it is to be submitted to a vote at a meeting of members having
voting rights, which may be either an annual or a special meeting;
b. Written
or printed notice setting forth the proposed amendment or a summary
of the changes to be affected thereby shall be given to each member
entitled to vote at such meeting within the time and in the manner
provided in this Chapter for the giving of notice of meetings of members.
If the meeting is an annual meeting, the proposed amendment or such
summary shall be included in the notice of such annual meeting;
c. The
proposed amendment shall be adopted upon receiving the affirmative
vote of at least two-thirds (2/3) of the votes entitled to be cast
by members present or represented by proxy at such meeting;
d. Where
there are no members, or no members having voting rights, an amendment
shall be adopted at a meeting of the Board of Directors upon receiving
the vote of a majority of the Directors in office; and
e. Any
number of amendments may be submitted and voted upon at any one meeting.
107-2-34 Articles of Amendment
The articles
of amendment shall be executed in duplicate by the corporation; by its
president or vice-president, and the corporate seal shall be there to
affixed, attested by its secretary or an assistant secretary, and shall
set forth:
a. The
name of the corporation;
b. The
amendment so adopted;
c. Where
there are members having voting rights;
1.
A statement setting forth the date of the meeting of members at
which the amendment was adopted, that a quorum was present at such
meeting, and that such amendment received at least two-thirds (2/3)
of the votes entitled to be cast by members present or represented
by proxy at such meeting; or
2.
A statement that such amendment was adopted by a consent in writing
signed by all members entitled to vote with respect thereto.
d. Where
there are no members, or no members having voting rights, a statement
of such fact, the date of the meeting of the Board of Directors at
which the amendment was adopted, and a statement of the fact that
such amendment received the vote of a majority of the directors in
office.
107-2-35 Filings of Articles of Amendment
a. Duplicate
originals of the articles of amendment shall be delivered to the Tribal
Secretary.
b. If
the Tribal Secretary finds that the articles of amendment conform
to law, they shall, when all fees and charges have been paid as in
this Chapter prescribed:
1.
Endorse on each of such duplicate originals the word "Filed",
and the month, day and year of the filing thereof;
2.
File one of such duplicate originals in their office;
3.
Issue a certificate of amendment to which they shall affix the other
duplicate original; and
4.
Deliver the certificate of amendment, together with the duplicate
original of the articles of amendment affixed thereto, to the corporation
or its representative.
107-2-36 Effect of Certificate of Amendment
a. Upon
the issuance of the certificate of amendment, the amendment shall
become effective and the articles of incorporation shall be deemed
to be amended accordingly.
b. No
amendment shall affect any existing cause of action in favor of or
against such corporation, or any pending suit to which such corporation
shall be a party, or existing rights of persons other than members;
and, in the event the corporate name shall be changed by amendment,
no suit brought by or against such corporation under its former name
shall abate for that reason.
107-2-37 Voluntary Dissolution
A corporate
may dissolve and wind up its affairs in the following manner:
a. Where
there are members having voting rights, the Board of Directors shall
adopt a resolution recommending that the corporate be dissolved and
directing that the question of such dissolution be submitted to a
vote at a meeting of members having voting rights, which may be either
an annual meeting or a special meeting. Written or printed notice
stating that the purpose, or one of the purposes, of such meeting
is to consider the advisability of dissolving the corporation, shall
be given to each member entitled to vote at such meeting, within the
time frame and in the manner provided in this Chapter, for the giving
notice of meetings to members. A resolution to dissolve the corporation
shall be adopted upon receiving at least two-thirds (2/3) of the votes
entitled to be cast by members present or represented by proxy at
such meetings;
b. Where
there are no members, or no members having voting rights, the dissolution
of the corporation shall be authorized at a meeting of the Board of
Directors upon the adoption of a resolution to dissolve by the vote
of a majority of the directors in office; and
c. Upon
adoption of such resolution by the members, or by the Board of Directors
where there are no members or members with voting rights, the corporation
shall cease to conduct its affairs except insofar as may be necessary
for the winding up thereof; shall immediately cause a notice of the
proposed dissolution to be mailed to each known creditor of the corporation
and shall proceed to collect its assets and apply and distribute them
as provided in this Chapter.
107-2-38 Distribution of Assets
The assets
of a corporation in the process of dissolution shall be applied and
distributed as follows:
a. All
liabilities and obligations of the corporation shall be paid, satisfied,
and discharged, or adequate provisions shall be made therefor;
b. Assets
held by the corporation upon condition requiring return, transfer,
or conveyance, which condition occurs by reason of the dissolution,
shall be returned, transferred, or conveyed in accordance with such
requirements;
c. Assets
received and held by the corporation subject to limitations, permitting
their use only for charitable, religious, missionary, benevolent,
education, or similar purposes, but not held upon a condition requiring
return, transfer, or conveyance by reason of the dissolution, shall
be transferred, or conveyed to one or more domestic or foreign corporations,
societies, or organizations engaged in activities substantially similar
to those of the dissolving corporation, pursuant to a plan of distribution
adopted as provided in this Chapter;
d. Other
assets, if any, shall be distributed in accordance with the provisions
of the articles of incorporation or the by-laws to the extent that
the articles of incorporation or by-laws determine the distributive
rights of members, or any class or classes of members, or provide
for distribution to others; and
e. Any
remaining assets may be distributed to such persons, societies, organizations,
or domestic or foreign corporations, whether for profit or not for
profit, as may be specified if a plan of distribution is adopted as
provided in this Chapter.
107-2-39 Plan for Distribution
A plan
for providing for the distribution of assets, not inconsistent with
the provisions of this Chapter, may be adopted by a corporation in the
process of dissolution and shall be adopted by a corporation for the
purpose of authorizing any transfer or conveyance of assets for which
this Chapter requires a plan for distribution, in the following manner:
a. Where
there are members having voting rights the Board of Directors shall
adopt a resolution recommending that the voluntary dissolution proceedings
be revoked, and directing that the question of such revocation be
submitted to a vote at the meeting of members having voting rights,
which may be either an annual or special meeting. Written or printed
notice stating that the purpose, or one of the purposes of such meeting
is to consider the advisability of revoking the voluntary dissolution
proceedings, shall be given to each member entitled to vote at such
meeting within the time and in the manner provided in this Chapter
for the giving of notice of meetings of members. A resolution to revoke
the voluntary dissolution proceedings shall be adopted upon receiving
at least two-thirds (2/3) of the votes entitled to be cast by members
present or represented by proxy at such meeting;
b. Where
there are no members, or no members having voting rights, a resolution
to revoke the voluntary dissolution proceeding shall be adopted at
a meeting of the Board of Directors upon receiving the vote of a majority
of the directors in office; and
c. Upon
adoption of such resolution by the members, or by the Board of Directors,
where there are no members or no members with voting rights, the corporation
may there upon again conduct its affairs. If the articles of dissolution
have been delivered to the Tribal Secretary, notice of such revocation
shall be given to them in writing.
107-2-40 Articles of Dissolution
If voluntary
dissolution proceedings have not been revoked; when all debts, liabilities,
and obligations of the corporation shall have been made therefor, and
all of the remaining property and assets of the corporation shall have
been transferred, conveyed, or distributed in accordance with the provisions
of this Chapter, articles of dissolution shall be executed in duplicate
by the corporation; by its president or a vice-president, and the corporation
seal shall be thereto affixed and attested by its secretary or an assistant
secretary, and such statement shall set forth:
a. The
name of the corporation;
b. Where
there are members having voting rights;
1.
A statement setting forth the date of the meeting of members at
which the resolution to dissolve was adopted, that a quorum was
present at such meeting, and that such resolution received at least
two-thirds (2/3) of the votes entitled to be cast by members or
represented by proxy at such meetings; or
2.
A statement that such resolution was adopted by consent in writing
signed by all members entitled to vote with respect thereto;
c. Where
there are no members, or no members having voting rights, a statement
of such fact, the date of the meeting of the Board of Directors at
which the resolution to dissolve received the vote of a majority of
the directors in office;
d. That
all debts, liabilities, and obligations of the corporation have been
paid and discharged or that adequate provision has been made therefor;
e. That
all the remaining property and assets of the corporation have been
transferred, conveyed, or distributed in accordance with the provisions
of this Chapter; and
f. That
there are no suits pending against the corporation in any Court, or
that adequate provisions have been made for the satisfaction of any
judgment, order, or decree which may be entered against it in any
pending suit.
107-2-41 Filing of Articles of Dissolution
a. Duplicate
originals of such articles of dissolution shall be delivered to the
Tribal Secretary.
b. If
the Tribal Secretary finds that such articles of dissolution conform
to law, he shall, when all fees and charges have been paid as in this
Chapter prescribed:
1.
Endorse on each of such duplicate original the word "filed",
and the month, day, and year of such filing thereof;
2.
File one of such duplicate original in their office;
3.
Issue a certificate of dissolution to which they shall affix the
other duplicate original; and
4.
Deliver the certificate of dissolution, together with the duplicate
original of the articles of dissolution affixed thereto, to the
representative of the dissolved corporation.
c. Upon
issuance of such certificate of dissolution, the existence of the
corporation shall cease, except for the purpose of suits, other proceedings,
and appropriate corporate action by members, directors, and officers
as provided in this Chapter.
107-2-42 Involuntary Dissolution
a. A
corporation may be dissolved involuntarily by a decree of the Court
in action instituted by the Tribal Secretary in the name of the Tulalip
Tribes, when it is made to appear to the Court that:
1.
The franchise of the corporation was procured through fraud; or
2.
The corporation has continued to exceed or abuse the authority conferred
upon it by this Chapter; or
3.
The corporation has failed for ninety (90) days to appoint and maintain
a registered agent as provided in this Chapter; or
4.
The corporation has failed for ninety (90) days after change of
its registered office or registered agent to deliver to the Tribal
Secretary statement of such change.
b. At
least thirty (30) days before any action for the involuntary dissolution
of a corporation shall be filed by the Tribal Secretary, he shall
notify the corporation by certified or registered mail addressed to
such corporation at its registered office, a notice of their intention
to file such suit and the reasons therefor. If, before action filed,
the corporation shall submit satisfactory evidence that said franchise
was not procured through fraud or that the corporation has not exceeded
or abused such authority or shall appoint or maintain a registered
agent as provided in this Chapter, or deliver to the Tribal Secretary,
the required statement of change or registered agent, the Tribal Secretary
shall not file an action against such a corporation for such cause.
If, after action is filed, for a reason stated in paragraph 3 or 4
of the preceding subsection the corporation shall, as the case may
be, appoint or maintain a registered agent as provided in this Chapter,
or shall deliver to the Tribal Secretary, the required statement of
change of registered agent, and shall pay the costs of such action,
the action for such cause shall abate.
107-2-43 Jurisdiction of Court to Liquidate Assets and Affairs of
Corporation
The Tulalip
Tribal Court shall have full power to liquidate the assets and affairs
of a corporation:
a. In
any action by a member or director when it is made to appear:
1.
That the directors are deadlocked in the management of the corporate
affairs and that irreparable injury to the corporation is being
suffered or is threatened by that reason thereof, and either that
the members are unable to break the deadlock or there are no members
having voting rights; or
2.
That the acts of the directors or those in control of the corporation
are illegal, oppressive or fraudulent; or
3.
That the corporate assets are being misapplied or wasted; or
4.
That the corporation is unable to carry out its purposes.
b. In
an action by a creditor:
1.
When the claim of the creditor has been reduced to judgment and
an execution thereon has been returned unsatisfied and it is established
that the corporation is insolvent; or
2.
When the corporation has admitted in writing and the claims of the
creditor is due and owing and it is established that the corporation
is insolvent;
c. Upon
application by a corporation to have its dissolution continued under
the supervision of the Court;
d. When
an action has been commenced by the Tribal Secretary to dissolve a
corporation and it is made to appear that liquidation of its affairs
should precede the entry of a decree of dissolution;
e. It
shall not be necessary to make directors or members parties to any
such action or proceeding unless relief is sought against them personally.
107-2-44 Procedure in Liquidation of Corporation by Court
a. In
proceedings to liquidate the assets and affairs of a corporation,
the Court shall have the power to issue injunctions, to appoint receivers
pendente lite, with such powers and duties as the Court, from time
to time may direct, and to take such other proceedings as may be requisite
to preserve the corporate assets wherever situated, and carry on its
affairs of the corporation until a full hearing can be had.
b. After
a hearing had upon such notice as the Court may direct to be given
to all parties to the proceedings and to any other parties in interest
designated by the Court, the Court may appoint a liquidating receiver
or receivers with authority to collect the assets of the corporation.
Such liquidating receiver or receivers shall have authority subject
to the order of the Court, to sell, convey and dispose of all or any
part of the assets of the corporation wherever situated, either at
public or private sale. The order appointing such liquidating receiver
or receivers shall state their powers and duties. Such power and duties
may be increased or diminished at any time during the proceedings.
c. The
assets of the corporation of the proceeds resulting from a sale, conveyance,
or other disposition thereof shall be applied and distributed as follows:
1.
All costs and expenses of the Court proceedings and all liabilities
and obligations of the corporation shall be paid, satisfied, and
discharged, or adequate provision shall be made therefor;
2.
Assets held by the corporation upon conditions requiring return,
transfer, or conveyance which conditions occurs by reason of dissolution
or liquidation, shall be returned, transferred, or conveyed in accordance
with such statements;
3.
Assets received and held by the corporation subject to limitations
permitting their use only for charitable, religious, eleemosynary
benevolent, education, or similar purposes, but not held upon a
condition requiring return, transfer, or conveyance by reason of
the dissolution or liquidation, shall be transferred or conveyed
to one or more domestic or foreign corporations, societies, or organizations
engaged in activities substantially similar to those of the dissolving
or liquidating corporation as the Court may direct;
4.
Other assets, if any, shall be distributed in accordance with the
provisions of the articles of incorporation or the by-laws to the
extent that the articles of incorporation or by-laws determine the
distributive rights of the members or any class or classes of members,
or provide for distribution to others; and
5.
Any remaining assets may be distributed to such persons, societies,
organizations, or domestic or foreign corporations, whether for
profit or not for profit, specified in the plan of distribution
has been adopted, as the Court may direct.
d. The
Court shall have power to allow, from time to time, as expenses of
the liquidation, compensation to the receiver or receivers and to
attorney in the proceeding, and to direct the payment thereof out
of the assets of the corporation or the proceeds of any sale of disposition
of such assets.
e. A
receiver of a corporation appointed under the provisions of this Section
shall have authority to sue and defend in all courts in his own name
as receiver of such corporation. The Court appointing such receiver
shall, for the purposes of this Chapter have exclusive jurisdiction
of the corporation and its property, wherever situated.
107-2-45 Qualification of Receivers
A receiver
shall in all cases be a natural person or a domestic corporation authorized
to act as receiver, and shall in all cases give such bond as the Court
may direct with such sureties as the Court may require.
107-2-46 Filing of Claims in Liquidation Proceedings
In proceeds
to liquidate the assets and affairs of a corporation, the Court may
require all creditors of the corporation to file with the Clerk of Court
or with the receiver, in such form as the Court may prescribe, proofs
under oath of their respective claims, it shall fix a date which shall
be not less than four (4) months from the date of the order, as the
last day for the filing of claims and shall prescribe the notice that
shall be given to creditors and claimants of the date so fixed. Prior
to the date so fixed, the Court may extend the time for the filing of
claims. Creditors and claimants failing to file proofs or claims on
or before the date so fixed may be barred, by order of the Court, from
participating in the distribution of the assets of the corporation.
107-2-47 Discontinuance of Liquidation Proceedings
The liquidation
of the assets and affairs of a corporation may be discontinued at any
time during the liquidation proceedings when it is made to appear that
cause for liquidation no longer exists. In such event the Court shall
dismiss the proceedings and direct the receiver to redeliver to the
corporation all its remaining property and assets.
107-2-48 Decree of Involuntary Dissolution
In proceedings
to liquidate the assets and affairs of a corporation, when the costs
and expenses of such proceedings and all debts, obligations, and liabilities
of the corporation shall have been paid and discharged and all of its
remaining property and assets are not sufficient to satisfy and discharge
such costs, expenses, debts, and obligations, and all the property and
assets have been applied so far as they will go to their payment, the
Court shall enter a decree dissolving the corporation, whereupon the
existence of the corporation shall cease.
107-2-49 Filing of Decree of Dissolution
In case
the Court shall enter a decree dissolving a corporation, it shall be
the duty of the Clerk of Court to cause a certified copy of the decree
to be delivered to the Tribal Secretary, who shall file the same. No
fee shall be charged by the Tribal Secretary for the filing thereof.
107-2-50 Deposits with Tribal Secretary
Upon the
voluntary or involuntary dissolution of a corporation, the portion of
the assets distributable to any persons who are unknown or cannot be
found, or who are under disability and there is no person legally competent
to receive such distributive portion, shall be reduced to cash and be
deposited with the Tribal Secretary and shall be paid over to such person
or to his legal representative upon proof satisfactory to the Court
of this rights thereto.
107-2-51 Annual Report of Domestic and Foreign Corporations
a. Each
domestic corporation shall prepare an annual report setting forth:
1.
The name of the corporation;
2.
The address of its registered office and the name of its registered
agent;
3.
A brief statement of the character of the affairs which the corporation
is actually conducting; and
4.
The names and respective addresses, including street and number,
if any, of the directors and officers of the corporation.
b. Such
annual report shall be made on forms prescribed and furnished by the
Tribal Secretary and the information therein contained shall be given
as of the date of the execution of the report. It shall be executed
by the corporation; by its president, a vice-president, secretary,
or assistant secretary, treasurer, or assistant treasurer, or if the
corporation is in the hands of a receiver or receivers, or trustee,
it shall be executed by such receiver, receivers, or trustee.
107-2-52 Filing of Annual Report of Corporation
Such annual
report of a corporation shall be delivered to the Tribal Secretary.
If the Tribal Secretary, between the first day of January and the first
day of March of each year, find that such report conforms to law, he
shall file the same. If he or she finds that it does not so conform,
he or she shall promptly return the same to the corporation for any
necessary correction, in which event the penalties hereinafter prescribed
for failure to file such report within the time hereinafter provided
shall not apply, if such report is corrected to conform to the requirements
of this Chapter and returned to the Tribal Secretary in sufficient time
to be filed prior to the first day of July of the year in which it is
due.
107-2-53 Penalties Imposed Upon Corporations
Each corporation,
foreign or domestic, that fails or refuses to file its annual report
for any year within the time prescribed by this Chapter shall be subject
to a penalty of fifty dollars ($50.00), to be assessed by the Tribal
Secretary.
107-2-54 Fees for Filing Documents and Issuing Certificates
The Tribal
Secretary shall charge and collect for:
a. Filing
articles of incorporation and issuing a certificate of incorporation
($100.00);
b. Filing
articles of amendment and issuing a certificate of amendment; ($100.00);
c. Filing
a statement of change of address of registered office or change of
registered agent, or both; ($25.00);
d. Filing
articles of dissolution; ($100.00);
e. Filing
a statement of election to accept this Chapter and issuing certificate
of acceptance; ($25.00);
f. Filing
any other statement or report, including an annual report of a domestic
or foreign corporation; ($15.00);
g. Indexing
each document filed, except an annual report ($5.00);
h. Furnishing
a certified copy of any document, instrument, or paper relating to
a corporation; ($10.00).
i. Furnishing
a certificate as to the existence of a fact relating to a corporation;
($10.00).
The Tribal
Secretary is authorized to make regulation providing for reasonable
fees for other services not listed in this Section or to changes by
regulation in any and all fees for services set out in this Chapter.
107-2-55 Certificates and Certified Copies to be Received in Evidence
All certificates
issued by the Tribal Secretary in accordance with the provisions of
this Chapter and all copies of documents filed in his or her office
in accordance with the provisions of this Chapter, when certified by
him or her, shall be taken and received in all Court, public offices,
and official bodies as prima facie evidence of the facts therein stated.
A certificate by the Tribal Secretary under the seal of his or her office,
as to the existence or nonexistence of the facts relating to corporations
which would not appear from a certified copy of any of the foregoing
documents or certificates shall be taken and received in all courts,
public offices and official bodies as prima facie evidence of the existence
or nonexistence of the facts therein stated.
107-2-56 Forms to be Furnished by the Tribal Secretary
All reports
required by this Chapter to be filed in the office of the Tribal Secretary
shall be made on forms which shall be prescribed and furnished by the
Tribal Secretary. Forms for all other documents to be filed in the office
of the Tribal Secretary shall be furnished by the Tribal Secretary on
request therefor, but the use thereof, unless otherwise specifically
prescribed in this Chapter, shall not be mandatory.
107-2-57 Greater Voting Requirements
Whenever,
with respect to any action to be taken by the members or directors of
a corporation, the articles of incorporation requires the vote or concurrence
of a greater proportion of the members or directors, as the case may
be, than required by this Chapter, with respect to such action, the
provisions of the articles of incorporation shall control.
107-2-58 Waiver of Notice
Whenever
any notice is required to be given to any member or director of a corporation
under the provisions of this Chapter, under the provisions of the articles
of incorporation, or by-laws of the corporation, a waiver thereof in
writing signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be equivalent to the
giving of such notice. Presence without objection also waives notice.
107-2-59 Action by Members or Directors Without a Meeting
Any action
required by this Chapter to be taken at a meeting of the members or
directors of a corporation, or any action which may be taken at a meeting
of the members of director, may be taken without meeting if consent
in writing, setting forth the action so taken, shall be signed by all
of the members entitled to vote with respect to the subject matter thereof,
or all of the directors, as the case may be. Such consent shall have
the same force and effect as a unanimous vote, and may be stated as
such in any articles or document filed with the Tribal Secretary under
this Chapter.
107-2-60 Effect of Invalidity of Part of This Chapter
If a Court
of competent jurisdiction shall adjudge to be invalid or unconstitutional
any clause, sentence, paragraph, Section, or part of this Chapter, such
judgment or decree shall not effect, impair, invalidate, or nullify
the remainder of this Chapter, but the effect thereof shall be confined
to the clause, sentence, paragraph, Section, or part of this Chapter
so adjudged to be invalid or unconstitutional.
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