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TITLE 11 - BUSINESS CORPORATION CODE
11-001 Citation.
11-001 CITATION.
This Code
shall be known as the Winnebago Tribe of Nebraska Business Corporation
Code. [TCR 94-124]
DEFINITIONS
11-011
Definitions.
11-011 DEFINITIONS.
For the
purpose of this Code, unless the language or context clearly indicates
that a different meaning is intended, the words, terms and phrases defined
in this section have the meanings given to them.
Acquiring
corporation. "Acquiring corporation" means the tribal
or foreign corporation that acquires the shares of a corporation in
an exchange.
Address.
"Address" means mailing address, including a zip code. In
the case of a registered office or principal executive office, the term
means the mailing address and the actual office location which shall
not be a post office box.
Articles.
"Articles" means, in the case of a corporation incorporated
under or governed by this Code, articles of incorporation, articles
of amendment, a resolution of election to become governed by this Code,
a statement of change of registered office, registered agent, or name
of registered agent, a statement establishing or fixing the rights and
preferences of a class or series of shares, a statement of cancellation
of authorized shares, articles of merger, articles of abandonment, and
articles of dissolution. In the case of a foreign corporation, the term
includes all documents serving a similar function required to be filed
with the Tribal Secretary or other officer of the Tribe.
Board.
"Board" means the board of directors of a corporation.
Class.
"Class" when used with reference to shares, means a category
of shares that differs in designation or one or more rights or preferences
from another category of shares of the corporation.
Closely
held corporation. "Closely held corporation" means a corporation
which does not have more than 35 shareholders.
Constituent
corporation. "Constituent corporation" means a tribal
or foreign corporation that is a party to a merger or exchange.
Corporation.
"Corporation" means a corporation, other than a foreign corporation,
organized for profit and incorporated under or governed by this Code.
Court.
"Court" means the Winnebago Tribal Court.
Director.
"Director" means a member of the board.
Distribution.
"Distribution" means a direct or indirect transfer of money
or other property, other than its own shares, with or without consideration
or an incurrence or issuance of indebtedness, by a corporation to any
of its shareholders in respect of its shares. A distribution may be
in the form of a dividend or a distribution in liquidation, or as consideration
for the purchase, redemption, or other acquisition of its shares, or
otherwise.
Filed
with the Tribal Secretary. "Filed with the Tribal Secretary"
means that an original of a document meeting the applicable requirements
of this Code, signed and accompanied by a filing fee of $25.00, has
been delivered to the Tribal Secretary of the Tribe on the Reservation.
The Tribal Secretary shall endorse on the original the word "Filed"
and the month, day, year, and time of filing, record the document in
the office of the Tribal Secretary, and return the document to the person
who delivered it for filing.
Foreign
corporation. "Foreign corporation" means a corporation
organized for profit that is incorporated under laws other than the
laws of the Tribe.
Good
faith. "Good faith" means honesty in fact in the conduct
of the act or transaction concerned.
Intentionally.
"Intentionally" means that the person referred to either has
a purpose to do or fail to do the act or cause the result specified
or believes that the act or failure to act, if successful, will cause
that result. A person "intentionally" violates a law if the
person intentionally does the act or causes the result prohibited by
the law, or if the person intentionally fails to do the act or cause
the result required by the law, even though the person may not know
of the existence or constitutionality of the law or the scope or meaning
of the terms used in the law.
Know;
knowledge. A person "knows" or has "knowledge"
of a fact when the person has actual knowledge of it. A person does
not "know" or "have knowledge" of a fact merely
because the person has reason to know of the fact.
Legal
representative. "Legal representative" means a person
empowered to act for another person, including, but not limited to,
an agent, officer, partner, or associate of, an organization; a trustee
of a trust; a personal representative; an executor of a will; an administrator
of an estate; a trustee in bankruptcy; and a receiver, guardian, custodian,
or conservator of the person or estate of a person.
Notice.
"Notice" is given by a shareholder of a corporation to the
corporation or an officer of the corporation when in writing and mailed
or delivered to the corporation or the officer at the registered office
or principal executive office of the corporation. In all other cases,
"notice" is given to a person when mailed to the person at
an address designated by the person or at the last known address of
the person, or when communicated to the person orally, or when handed
to the person, or when left at the office of the person with a clerk
or other person in charge of the office, or if there is no one in charge,
when left in a conspicuous place in the office, or if the office is
closed or the person to be notified has no office, when left at the
dwelling house or usual place of abode of the person with some person
of suitable age and discretion then residing therein. Notice by mail
is given when deposited in the United States mail with sufficient postage
affixed. Notice is deemed received when it is given.
Officer.
"Officer" means a person elected, appointed, or otherwise
designated as an officer by the board, and any other person deemed elected
as an officer pursuant to section 11-321.
Organization.
"Organization" means a tribal or foreign corporation, foreign
limited liability company, limited partnership, joint venture, association,
business trust, estate, trust, enterprise, and any other legal or commercial
entity.
Outstanding
shares. "Outstanding shares" means all shares duly issued
and not reacquired by a corporation.
Parent.
"Parent" of a specified corporation means a corporation that
directly, or indirectly through related corporations, owns more than
50 percent of the voting power of the shares entitled to vote for directors
of the specified corporation.
Person.
"Person" includes a natural person and an organization.
Principal
executive office. "Principal executive office" means an
office where the elected or appointed chief executive officer of a corporation
has an office. If the corporation has no elected or appointed chief
executive officer, "principal executive office" means the
registered office of the corporation.
Registered
office. "Registered office" means the place designated
in the articles of a corporation as the registered office of the corporation.
Related
corporation. "Related corporation" of a specified corporation
means a parent or subsidiary of the specified corporation or another
subsidiary of a parent of the specified corporation.
Reservation.
"Reservation" means the reservation of the Tribe as is now
or hereafter may be recognized by the Secretary of the Interior of the
United States of America.
Security.
"Security' means any note; stock; treasury stock; bond; debenture;
evidence of indebtedness; certificate of interest or participation in
any profit sharing agreement; collateral trust certificate; pre-organization
certificate or subscription; transferable shares; investment contract;
investment metal contract or investment gem contract; voting trust certificate;
certificate of deposit for a security; certificate of interest or participation
in an oil, gas or mining right, title or lease or in payments out of
production under the right, title or lease; or in general, any interest
or instrument commonly known as security, or any certificate of interest
or participation in, temporary or interim certificate for, receipt for
guarantee of, or warrant or right to subscribe to or purchase, any of
the foregoing. "Security" does not include any insurance or
endowment policy or annuity contract under which an insurance company
promises to pay money either in a lump sum or periodically for life
or for some other specified period.
Series.
"Series" means a category of shares, within a class of shares
authorized or issued by a corporation by or pursuant to its articles,
that have some of the same rights and preferences as other shares within
the same class, but that differ in designation or one or more rights
and preferences from another category of shares within that class.
Share.
"Share" means one of the units, however designated, into which
the shareholders proprietary interests in a corporation are divided.
Shareholder.
"Shareholder" means a person registered on the books or records
of a corporation or its transfer agent or registrar as the owner of
whole or fractional shares of the corporation.
Signed.
"Signed" means that the signature of a person has been written
on a document and, with respect to a document required by this Code
"to be filed with the Tribal Secretary," means that the document
has been signed by a person authorized to do so by this Code, the articles
or bylaws, or a resolution approved by the affirmative vote of the required
proportion or number of the directors or the holders of the required
proportion or number of the voting power of the shares present and entitled
to vote. A signature on a document not required by this Code to be filed
with the Tribal Secretary may be a facsimile affixed, engraved, printed,
placed, stamped with indelible ink, or in any other manner reproduced
on the document.
Subsidiary.
"Subsidiary" of a specified corporation means a corporation
having more than 50 percent of the voting power of its shares entitled
to vote for directors owned directly, or indirectly through related
corporations, by the specified corporation.
Surviving
corporation. "Surviving corporation" means the tribal
or foreign corporation resulting from a merger.
Transaction
statement. "Transaction statement" means the "initial
transaction statement" of uncertificated securities sent to: (a)-the
new registered owner, and, if applicable, to the registered pledgee;
(b)-the registered owner, consistent with procedures of Article-8 of
the Uniform Commercial Code (Chapter 91) of the Revised Statutes of
Nebraska.
Tribal
Corporation. "Tribal Corporation" means a corporation
that is incorporated under this Code.
Tribal
Council. "Tribal Council" means the Tribal Council of
the Winnebago Tribe of Nebraska.
Tribal
Secretary. "Tribal Secretary" means the Tribal Secretary
for the Winnebago Tribal Council.
Tribal
Treasurer. "Tribal Treasurer" means the Tribal Treasurer
for the Winnebago Tribal Council.
Tribe.
"Tribe" means the Winnebago Tribe of Nebraska.
Trust
land. "Trust land" means land held in trust by the United
States government for the benefit of the Tribe.
Vote.
"Vote" includes authorization by written action.
Written
action. "Written action" means a written document signed
by all of the persons required to take the action described. The term
also means the counterparts of a written document signed by any of the
persons taking the action described. Each counterpart constitutes the
action of the persons signing it, and all the counterparts, taken together,
constitute one written action by all of the persons signing them. [TCR
94-124, 95-10]
APPLICATION
| 11-021
Repeal of previous business Corporation Code. |
11-081
Sovereign immunity of Tribe not waived |
| 11-041
Reservation of right. |
|
|
11-061
Corporations wholly owned by Tribe.
|
|
11-021 REPEAL OF PREVIOUS BUSINESS CORPORATION ACT.
The Winnebago
Tribe of Nebraska Business Corporation Act of 1986 (the "Prior
Corporation Code") is hereby repealed effective September 15, 1994.
No corporations were organized under the Prior Corporation Code. Effective
with the effective date of this Code, a corporation incorporated for
a purpose or purposes for which a corporation may be incorporated under
this Code shall be incorporated only under this Code. [TCR 94-124]
11-041 RESERVATION OF RIGHT.
The Tribe
reserves the right to amend or repeal the provisions of this Code. A
corporation incorporated under or governed by this Code is subject to
this reserved right. [TCR 94-124]
11-061 CORPORATIONS WHOLLY OWNED BY THE TRIBE.
The provisions
of sections 11-1001 through 11-1091 shall apply to all corporations
incorporated under this Code and wholly owned, directly or indirectly,
by the Tribe and shall override any other provisions in this Code to
the contrary. In the case of tribal corporations wholly owned, directly
or indirectly, by the Tribe, all provisions of this Code are subject
to the provisions of sections 11-1001 through 11-1091. [TCR 94-124]
11-081 SOVEREIGN IMMUNITY OF THE TRIBE NOT WAIVED.
By the
adoption of this Code, the Tribe does not waive its sovereign immunity
or consent to suit in any court, federal, tribal or state, and neither
the adoption of this Code, nor the incorporation of any corporation
hereunder, shall be construed to be a waiver of the sovereign immunity
of the Tribe or a consent to suit against the Tribe in any such court.
[TCR 94-124]
INCORPORATION; ARTICLES
| 11-101
Purposes. |
11-135
Procedure for amendment after issuance of shares |
| 11-105
Incorporators. |
11-137
Class or series voting on amendments. |
| 11-111
Articles. |
11-139
Articles of amendment. |
| 11-115
Corporate name. |
11-141
Effect of amendment. |
| 11-117
Reserved name. |
11-151
Filing articles. |
| 11-121
Registered office; registered agent. |
11-153
Effective date of articles. |
11-123
Change of registered office
or registered agent; change of name of registered agent. |
11-155
Presumption; certificate of incorporation. |
| 11-131
Amendment of articles. |
|
|
11-133
Procedure for amendment before issuance of shares.
|
|
11-101 PURPOSES.
A corporation
may be incorporated under this Code for any business purpose or purposes,
unless some other Code of the Tribe requires incorporation for any of
those purposes under a different law. Unless otherwise provided in its
articles, a corporation has general business purposes. [TCR 94-124]
11-105 INCORPORATORS.
One or
more enrolled members of the Tribe of full age may act as incorporators
of a corporation by filing with the Tribal Secretary articles of incorporation
for the corporation. [TCR 94-124]
11-111 ARTICLES.
Subdivision
1. Required provisions. The articles of incorporation shall
contain:
(a)
The name of the corporation;
(b)
The address of the registered office of the corporation and the
name of its registered agent, if any, at that address;
(c)
The aggregate number of shares that the corporation has authority
to issue; and
(d)
The name and address of each incorporator.
Subdivision
2. Provisions that may be modified only in articles. The following
provisions govern a corporation unless modified in the articles:
(a)
A corporation has general business purposes;
(b)
A corporation has perpetual existence and certain powers;
(c)
The power to adopt, amend, or repeal the bylaws is vested in the
board;
(d)
A corporation must allow cumulative voting for directors;
(e)
The affirmative vote of a majority of directors present is required
for an action of the board;
(f)
A written action by the board taken without a meeting must be signed
by all directors;
(g)
The board may authorize the issuance of securities and rights to
purchase securities;
(h)
All shares are common shares entitled to vote and are of one class
and one series;
(i)
All shares have equal rights and preferences in all matters not
otherwise provided for by the board;
(j)
The par value of shares is fixed at one cent per share for certain
purposes and may be fixed by the board for certain other purposes;
(k)
The board or the shareholders may issue shares for any consideration
or for no consideration to effectuate share dividends or splits,
divisions, or combinations, and determine the value of non-monetary
consideration;
(l)
Shares of a class or series must not be issued to holders of shares
of another class or series to effectuate share dividends or splits,
divisions, or combinations, unless authorized by a majority of the
voting power of the shares of the same class or series as the shares
to be issued;
(m)
A corporation may issue rights to purchase securities whose terms,
provisions, and conditions are fixed by the board;
(n)
A shareholder has no preemptive rights, unless otherwise provided
by the board;
(o)
The affirmative vote of the holders of a majority of the voting
power of the shares present and entitled to vote at a duly held
meeting is required for an action of the shareholders, except where
this Code requires the affirmative vote of a majority of the voting
power of all shares entitled to vote;
(p)
Shares of a corporation acquired by the corporation may be reissued;
(q)
Each share has one vote unless otherwise provided in the terms of
the share;
(r)
A corporation may issue shares for a consideration less than the
par value, if any, of the shares; and
(s)
The board may effect share dividends, divisions, and combinations
under certain circumstances without shareholder approval (section
11-402).
Subdivision
3. Provisions that may be modified either in articles or in bylaws.
The following provisions govern a corporation unless modified either
in the articles or in the bylaws:
(a)
Directors serve for an indefinite term that expires at the next
regular meeting of shareholders (section 11-207);
(b)
The compensation of directors is fixed by the board (section 11-211);
(c)
A certain method must be used for removal of directors (section
11-223);
(d)
A certain method must be used for filling board vacancies (section
11-225);
(e)
If the board fails to select a place for a board meeting, it must
be held at the principal executive office (section 11-231, subdivision
1);
(f)
The notice of a board meeting need not state the purpose of the
meeting (section 11-231, subdivision 3);
(g)
A majority of the board is a quorum for a board meeting (section
11-235);
(h)
A committee shall consist of one or more persons, who need not be
directors, appointed by affirmative vote of a majority of the directors
present (section 11-241, subdivision 2);
(i)
The board may establish a special litigation committee (section
11-241);
(j)
The chief executive officer and chief financial officer have specified
duties, until the board determines otherwise (section 11-305);
(k)
Officers may delegate some or all of their duties and powers, if
not prohibited by the board from doing so (section 11-351);
(l)
The board may establish uncertificated shares (section 11-417, subdivision
7);
(m)
Regular meetings of shareholders need not be held, unless demanded
by shareholders holding at least ten percent of the voting power
under certain conditions (section 11-431);
(n)
In all instances where a specific minimum notice period has not
otherwise been fixed by law, not less than ten days notice is required
for a meeting of shareholders (section 11-435, subdivision 2);
(o)
The number of shares required for a quorum at a shareholders meeting
is a majority of the voting power of the shares entitled to vote
at the meeting (section 11-443);
(p)
The board may fix a date up to 60 days before the date of a shareholders
meeting as the date for the determination of the holders of shares
entitled to notice of and entitled to vote at the meeting (section
11-445, subdivision 1);
(q)
Indemnification of certain persons is required (section 11-521);
and
(r)
The board may authorize, and the corporation may make, distributions
not prohibited, limited, or restricted by an agreement (section
11-551, subdivision 1)
Subdivision
4. Optional provisions; specific subjects. The following provisions
relating to the management of the business or the regulation of the
affairs of a corporation may be included either in the articles or,
except for naming members of the first board, fixing a greater than
majority director or shareholder vote, or giving or prescribing the
manner of giving voting rights to persons other than shareholders
otherwise than pursuant to the articles, or eliminating or limiting
a director's personal liability, in the bylaws:
(a)
The members of the first board may be named in the articles (section
11-201, subdivision 1);
(b)
A manner for increasing or decreasing the number of directors may
be provided (section 11-203);
(c)
Additional qualifications for directors may be imposed (section
11-205);
(d)
Directors may be classified (section 11-213);
(e)
The day or date, time, and place of board meetings may be fixed
(section 11-231, subdivision 1);
(f)
Absent directors may be permitted to give written consent or opposition
to a proposal (section 11-233);
(g)
A larger than majority vote may be required for board action (section
11-237);
(h)
Authority to sign and deliver certain documents may be delegated
to an officer or agent of the corporation other than the chief executive
officer (section 11-305, subdivision 2);
(i)
Additional officers may be designated (section 11-311);
(j)
Additional powers, rights, duties, and responsibilities may be given
to officers (section 11-315);
(k)
A method for filling vacant offices may be specified (section 11-341,
subdivision 3);
(l)
A certain officer or agent may be authorized to sign share certificates
(section 11-417, subdivision 2);
(m)
The transfer or registration of transfer of securities may be restricted
(section 11-429);
(n)
The day or date, time, and place of regular shareholder meetings
may be fixed (section 11-431, subdivision 3);
(o)
Certain persons may be authorized to call special meetings of shareholders
(section 11-433, subdivision 1);
(p)
Notices of shareholder meetings may be required to contain certain
information (section 11-435, subdivision 3);
(q)
A larger than majority vote may be required for shareholder action
(section 11-437);
(r)
Voting rights may be granted in or pursuant to the articles to persons
who are not shareholders (section 11-445, subdivision 4);
(s)
Corporate actions giving rise to dissenter rights may be designated
(section 11-471, subdivision 1, clause (e));
(t)
The rights and priorities of persons to receive distributions may
be established (section 11-551); and
(u)
A director's personal liability to the corporation or its shareholders
for monetary damages for breach of fiduciary duty as a director
may be eliminated or limited in the articles (section 11-251, subdivision
4).
Subdivision
5. Optional provisions: generally. The articles may contain
other provisions not inconsistent with law relating to the management
of the business or the regulation of the affairs of the corporation.
Subdivision
6. Powers need not be stated. It is not necessary to set forth
in the articles any of the corporate powers granted by this Code.
[TCR 94-124, 95-10]
11-115 CORPORATE NAME.
Subdivision
1. Requirements; prohibitions. The corporate name:
(a)
Shall be in the Winnebago or English language or in any other language
expressed in English letters or characters;
(b)
Shall contain the word "corporation," "incorporated,"
or "limited," or shall contain an abbreviation of one
or more of these words, or the word "company" or the abbreviation
"Co." if that word or abbreviation is not immediately
preceded by the word "and" or the character "&";
(c)
Shall not contain a word or phrase that indicates or implies that
it is incorporated for a purpose other than a legal business purpose;
(d)
Shall be distinguishable upon the records in the office of the Tribal
Secretary from the name of a tribal corporation or other legal entity,
whether tribal or foreign, authorized or registered to do business
on the Reservation or, whether or not authorized or registered to
do business on the Reservation is well known on the Reservation,
whether profit or nonprofit, or a name the right to which is, at
the time of incorporation, reserved or provided for in section 11-117,
unless there is filed with the articles one of the following:
(1)
The written consent of the tribal corporation or other legal entity
authorized or registered to do business on the Reservation or
the holder of a reserved name or a name filed by or registered
with the Tribal Secretary having a name that is not distinguishable;
(2)
A certified copy of a final decree of the court establishing the
prior right of the applicant to the use of the name on the Reservation,
or establishing that the corporation or other legal entity with
the name that is not distinguishable has been incorporated or
on file with the Tribal Secretary for at least three years prior
thereto, and has been totally inactive, provided notice of a hearing
on the matter has been given to such corporation or entity, if
possible.
Subdivision
2. Names continued. Subdivision 1, clause (d) does not affect
the right of a tribal corporation existing on the effective date of
this Code, or a foreign corporation authorized to do business on the
Reservation on that date to continue the use of its name.
Subdivision
3. Determination. The Tribal Secretary shall determine whether
a name is "distinguishable" from another name for purposes
of this section and section 11-117.
Subdivision
4. Other laws affecting use of names. This section and section
11-117 do not abrogate or limit any law of unfair competition or unfair
practices, nor any Trademark Code, nor the laws of the United States
with respect to the right to acquire and protect copyrights, trade
names, trademarks, service names, service marks, or an other rights
to the exclusive use of names or symbols, nor derogate the common
law or the principles of equity.
Subdivision
5. Use of name by successor corporation. A corporation that
is merged with another tribal or foreign corporation, or that is incorporated
by the reorganization of one or more tribal or foreign corporations,
or that acquires by sale, lease, or other disposition to or exchange
with a tribal corporation all or substantially all of the assets of
another tribal or foreign corporation including its name, may have
the same name as that used on the Reservation by any of the other
corporations, if the other corporation was incorporated under the
laws of the Tribe, or is authorized to transact business on the Reservation.
Subdivision
6. Injunction. The use of a name by a corporation in violation
of this section does not affect or vitiate its corporate existence,
but the court may, upon application of the Tribe or of a person interested
or affected, enjoin the corporation from doing business under a name
assumed in violation of this section, although its articles may have
been filed with the Tribal Secretary and a certificate of incorporation
issued. [TCR 94-124, 95-10]]
11-117 RESERVED NAME.
Subdivision
1. Who may reserve. The exclusive right to the use of a corporate
name otherwise permitted by section 11-115 may be reserved by:
(a)
A person doing business on the Reservation under that name;
(b)
A person intending to incorporate under this Code;
(c)
A tribal corporation intending to change its name;
(d)
A foreign corporation intending to make application for a certificate
of authority to transact business on the Reservation;
(e)
A foreign corporation authorized to transact business on the Reservation
and intending to change its name;
(f)
A person intending to incorporate a foreign corporation and intending
to have the foreign corporation make application for a certificate
of authority to transact business on the Reservation; or
(g)
A foreign corporation doing business under that name or a name deceptively
similar to that name in one or more states of the United States
and not described in clause (d), (e), or (f).
Subdivision
2. Method of reservation. The reservation shall be made by
filing with the Tribal Secretary a request that the name be reserved.
If the name is available for use by the applicant, the Tribal Secretary
shall reserve the name for the exclusive use of the applicant for
a period of 12 months. The reservation may be renewed for successive
12-month periods.
Subdivision
3. Transfer of reservation. The right to the exclusive use
of a corporate name reserved pursuant to this section may be transferred
to another person by or on behalf of the applicant for whom the name
was reserved by filing with the Tribal Secretary a notice of the transfer
and specifying the name and address of the transferee. [TCR 94-124]
11-121 REGISTERED OFFICE; REGISTERED AGENT.
Subdivision
1. Registered office. A corporation shall continuously maintain
a registered office. A registered office need not be the same as the
principal place of business or the principal executive office of the
corporation.
Subdivision
2. Registered agent. A corporation may designate in its articles
a registered agent. The registered agent may be a natural person residing
on the Reservation, or a tribal corporation. The registered agent
must maintain an office that is identical with the registered office.
[TCR 94-124]
11-123 CHANGE OF REGISTERED OFFICE OR REGISTERED AGENT; CHANGE OF
NAME OF REGISTERED AGENT.
Subdivision
1. Statement. A corporation may change its registered office,
designate or change its registered agent, or state a change in the
name of its registered agent, by filing with the Tribal Secretary
a statement containing:
(a)
The name of the corporation;
(b)
If the address of its registered office is to be changed, the new
address of its registered office;
(c)
If its registered agent is to be designated or changed, the name
of its new registered agent;
(d)
If the name of its registered agent is to be changed, the name of
its registered agent as changed;
(e)
A statement that the address of its registered office and the address
of the office of its registered agent, as changed, will be identical;
and
(f)
A statement that the change of registered office or registered agent
was authorized by resolution approved by the affirmative vote of
a majority of the directors present.
Subdivision
2. Resignation of agent. A registered agent of a corporation
may resign by filing with the Tribal Secretary a signed written notice
of resignation, including a statement that a signed copy of the notice
has been given to the corporation at its principal executive office
or to a legal representative of the corporation. The appointment of
the agent terminates 30 days after the notice is filed with the Tribal
Secretary.
Subdivision
3. Change of business address or name of agent. If the office
address or name of a registered agent changes, the agent shall change
the address of the registered office or the name of the registered
agent, as the case may be, of each corporation represented by that
agent by filing with the Tribal Secretary a statement as required
in subdivision 1, except that it need be signed only by the registered
agent, need not be responsive to clause (e) or (f), and must state
that a copy of the statement has been mailed to each of those corporations
or to the legal representative of each of those corporations. [TCR
94-124]
11-131 AMENDMENT OF ARTICLES.
The articles
of a corporation may be amended at any time to include or modify any
provision that is required or permitted to appear in the articles or
to omit any provision not required to be included in the articles, except
that when articles are amended to restate them, the name and address
of each incorporator may be omitted. Unless otherwise provided in this
Code, the articles may be amended or modified only in accordance with
sections 11-133 to 11-139. An amendment which merely restates the then-existing
articles of incorporation, as amended, is not an amendment for the purposes
of section 11-215, subdivision 2, or 11-413, subdivision 9. [TCR 94-124]
11-133 PROCEDURE FOR AMENDMENT BEFORE ISSUANCE OF SHARES.
Before
the issuance of shares by a corporation, the articles may be amended
pursuant to section 11-171 by the incorporators or by the board. The
articles may be amended by the board to change a statement pursuant
to section 11-401, subdivision-3, establishing or fixing the rights
and preferences of a class or series of shares before the issuance of
any shares of that class or series. [TCR 94-124]
11-135 PROCEDURE FOR AMENDMENT AFTER ISSUANCE OF SHARES.
Subdivision
1. Manner of amendment. After the issuance of shares by the
corporation, the articles may be amended in the manner set forth in
this section.
Subdivision
2. Submission to shareholders. A resolution approved by the
affirmative vote of a majority of the directors present, or proposed
by a shareholder or shareholders holding three percent or more of
the voting power of the shares entitled to vote, that sets forth the
proposed amendment shall be submitted to a vote at the next regular
or special meeting of the shareholders of which notice has not yet
been given but still can be timely given. Any number of amendments
may be submitted to the shareholders and voted upon at one meeting,
but the same or substantially the same amendment proposed by a shareholder
or shareholders need not be submitted to the shareholders or be voted
upon at more than one meeting during a 15-month period. The resolution
may amend the articles in their entirety to restate and supersede
the original articles and all amendments to them. The provisions of
this subdivision regarding shareholder-proposed amendments do not
apply to a corporation registered or reporting under the federal securities
laws, to the extent that those provisions are in conflict with the
federal securities laws or rules promulgated thereunder, in which
case the federal securities laws or rules promulgated thereunder shall
govern.
Subdivision
3. Notice. Written notice of the shareholder's meeting setting
forth the substance of the proposed amendment shall be given to each
shareholder in the manner provided in section 11-435 for the giving
of notice of meetings of shareholders.
Subdivision
4. Approval by shareholders. (a) The proposed amendment is
adopted when approved by the affirmative vote of the holders of a
majority of the voting power of the shares present and entitled to
vote, except as provided in paragraphs (b) and (c) and subdivision
5.
(b)
For a closely held corporation, if the articles provide for a specified
proportion or number equal to or larger than the majority necessary
to transact a specified type of business at a meeting, or if it
is proposed to amend the articles to provide for a specified proportion
or number equal to or larger than the majority necessary to transact
a specified type of business at a meeting, the affirmative vote
necessary to add the provision to, or to amend an existing provision
in, the articles is the larger of:
(1)
the specified proportion or number or, in the absence of a specific
provision, the affirmative vote necessary to transact the type
of business described in the proposed amendment at a meeting immediately
before the effectiveness of the proposed amendment; or
(2)
the specified proportion or number that would, upon effectiveness
of the proposed amendment, be necessary to transact the specified
type of business at a meeting.
(c)
For corporations other than closely held corporations, if the articles
provide for a larger proportion or number to transact a specified
type of business at a meeting, the affirmative vote of that larger
proportion or number is necessary to amend the articles to decrease
the proportion or number necessary to transact the business.
Subdivision
5. Certain restatements. An amendment that merely restates
the existing articles, as amended, may be authorized by a resolution
approved by the board and may, but need not, be submitted to and approved
by the shareholders as provided in subdivisions 2, 3, and 4. [TCR
94-124]
11-137 CLASS OR SERIES VOTING ON AMENDMENTS.
The holders
of the outstanding shares of a class or series are entitled to vote
as a class or series upon a proposed amendment, whether or not entitled
to vote thereon by the provisions of the articles, if the amendment
would:
(a) Increase
or decrease the aggregate number of authorized shares of the class
or series;
(b) Effect
an exchange, reclassification, or cancellation of all or part of the
shares of the class or series;
(c) Effect
an exchange, or create a right of exchange, of all or any part of
the share of another class or series for the shares of the class or
series;
(d) Change
the rights or preferences of the shares of the class or series;
(e) Change
the shares of the class or series, whether with or without par value,
in the same or a different number of shares, either with or without
par value, of the same or another class or series;
(f) Create
a new class or series of shares having rights and preferences prior
and superior to the shares of that class or series, or increase the
rights and preferences or the number of authorized shares, of a class
or series having rights and preferences prior or superior to the shares
of that class or series;
(g) Divide
the shares of the class into series and determine the designation
of each series and the variations in the relative rights and preferences
between the shares of each series, or authorize the board to do so;
(h) Limit
or deny any existing preemptive rights of the shares of the class
or series or
(i) Cancel
or otherwise affect distributions on the shares of the class or series
that have accrued but have not been declared. [TCR 94-124]
11-139 ARTICLES OF AMENDMENT.
When an
amendment has been adopted, articles of amendment shall be prepared
that contain:
(a) The
name of the corporation;
(b) The
amendment adopted;
(c) With
respect to an amendment restating the articles, a statement that the
amendment restating the articles correctly sets forth without change
the corresponding provisions of the articles as previously amended
if the amendment was approved only by the board;
(d) If
the amendment provides for but does not establish the manner for effecting
an exchange, reclassification, division, combination, or cancellation
of issued shares, a statement of the manner in which it will be effected;
and
(e) A
statement that the amendment has been adopted pursuant to this Code.
[TCR 94-124]
11-141 EFFECT OF AMENDMENT.
Subdivision
1. Effect on cause of action. An amendment does not affect
an existing cause of action in favor of or against the corporation,
nor a pending suit to which the corporation is a party, nor the existing
rights of persons other than shareholders.
Subdivision
2. Effect of change of name. If the corporate name is changed
by the amendment, a suit brought by or against the corporation under
its former name does not abate for that reason.
Subdivision
3. Effect of amendments restating articles. When effective
under section 11-153, an amendment restating the articles in their
entirety supersedes the original articles and all amendments to the
original articles. [TCR 94-124]
11-151 FILING ARTICLES.
Articles of incorporation and articles of amendment shall be filed with
the Tribal Secretary. [TCR 94-124]
11-153 EFFECTIVE DATE OF ARTICLES.
Articles
of incorporation are effective and corporate existence begins when the
articles of incorporation are filed with the Tribal Secretary accompanied
by a payment of $125.00, which includes a $100.00 incorporation fee
in addition to the $25.00 filing fee. Articles of amendment and articles
of merger are effective when filed with the Tribal Secretary or at another
time within 30 days after filing if the articles of amendment so provide.
Articles of merger must be accompanied by a fee of $125.00, which includes
a $100.00 merger fee in addition to the $25.00 filing fee. [TCR 94-124]
11-155 PRESUMPTION; CERTIFICATE OF INCORPORATION.
When the
articles of incorporation have been filed with the Tribal Secretary
and the required fee has been paid to the Tribal Secretary, it is presumed
that all conditions precedent required to be performed by the incorporators
have been complied with and that the corporation has been incorporated,
and the Tribal Secretary shall issue a certificate of incorporation
to the corporation, but this presumption does not apply against the
Tribe in a proceeding to cancel or revoke the certificate of incorporation
or to compel the involuntary dissolution of the corporation. [TCR 94-124]
POWERS
| 11-161
Powers. |
11-165
Effect of lack of power; ultra vires. |
|
11-163
Corporate seal.
|
|
11-161 POWERS.
Subdivision
1. Generally, limitations. A corporation has the powers set
forth in this section, subject to any limitations provided in any
other law of the Tribe or in its articles.
Subdivision
2. Duration. A corporation has perpetual duration.
Subdivision
3. Legal capacity. A corporation may sue and be sued, complain
and defend and participate as a party or otherwise in any legal, administrative,
or arbitration proceeding, in its corporate name.
Subdivision
4. Property ownership. A corporation may purchase, lease, or
otherwise acquire, own, hold, improve, use, and otherwise deal in
and with, real or personal property, or any interest therein, wherever
situated.
Subdivision
5. Property disposition. A corporation may sell, convey, mortgage,
create a security interest in, lease, exchange, transfer, or otherwise
dispose of all or any part of its real or personal property, or any
interest therein, wherever situated.
Subdivision
6. Trading in securities; obligations. A corporation may purchase,
subscribe for, or otherwise acquire, own, hold, vote, use, employ,
sell, exchange, mortgage, lend, create a security interest in, or
otherwise dispose of and otherwise use and deal in and with, securities
or other interests in, or obligations of, a person or direct or indirect
obligations of any tribal or foreign government or instrumentality
thereof.
Subdivision
7. Contracts; mortgages. A corporation may make contracts and
incur liabilities, borrow money, issue its securities, and secure
any of its obligations by mortgage of or creation of a security interest
in all or any of its property, franchises and income.
Subdivision
8. Investment. A corporation may invest and reinvest its funds.
Subdivision
9. Holding property as security. A corporation may take and
hold real and personal property, whether or not of a kind sold or
otherwise dealt in by the corporation, as security for the payment
of money loaned, advanced, or invested.
Subdivision
10. Location. A corporation may conduct its business, carry
on its operations, have offices, and exercise the powers granted by
this Code anywhere in the universe.
Subdivision
11. Donations. A corporation may make donations, irrespective
of corporate benefit, for the public welfare; for social, community,
charitable, religious, educational, scientific, civic, literary, and
for similar or related purposes.
Subdivision
12. Pensions; benefits. A corporation may pay pensions, retirement
allowances, and compensation for past services to and for the benefit
of, and establish, maintain, continue, and carry out, wholly or partially
at the expense of the corporation employee or incentive benefit plans,
trusts, and provisions to or for the benefit of, and or all of its
and its related corporations, officers, directors, employees, and
agents and the families, dependents, and beneficiaries of any of them.
It may indemnify and purchase and maintain insurance for and on behalf
of a fiduciary of any of these employee benefit and incentive plans,
trusts, and provisions.
Subdivision
13. Participating in management. A corporation may participate
in any capacity in the promotion, organization, ownership, management,
and operation of an organization or in any transaction, undertaking,
or arrangement that the participating corporation would have power
to conduct by itself, whether or not the participation involves sharing
or delegation of control with or to others.
Subdivision
14. Insurance. A corporation may provide for its benefit life
insurance and other insurance with respect to the services of any
or all of its officers, directors, employees, and agents, or on the
life of a shareholder for the purpose of acquiring at the death of
the shareholder any or all shares in the corporation owned by the
shareholder.
Subdivision
15. Corporate seal. A corporation may have, alter at pleasure,
and use a corporate seal as provided in section 11-163.
Subdivision
16. Bylaws. A corporation may adopt, amend, and repeal bylaws
relating to the management of the business or the regulation of the
affairs of the corporation as provided in section 11-181.
Subdivision
17. Committees. A corporation may establish committees of the
board of directors, elect or appoint persons to the committees, and
define their duties as provided in section 11-241 and fix their compensation.
Subdivision
18. Officers; employees; agents. A corporation may elect or
appoint officers, employees, and agents of the corporation, and define
their duties as provided in sections 11-301 to 11-361 and fix their
compensation.
Subdivision
19. Securities. A corporation may issue securities and rights
to purchase securities as provided in sections 11-401 to 11-425.
Subdivision
20. Loans; guaranties; sureties. A corporation may lend money
to, guarantee an obligation of, become a surety for, or otherwise
financially assist persons as provided in section 11-501.
Subdivision
21. Advances. A corporation may make advances to its directors,
officers and employees and those of its subsidiaries as provided in
section 11-505.
Subdivision
22. Indemnification. A corporation shall indemnify those persons
identified in section 11-521 against certain expenses and liabilities
only as provided in section 11-521 and may indemnify other persons.
Subdivision
23. Assumed names. A corporation may conduct all or part of
its business under one or more assumed names, provided each assumed
name is registered with the Tribal Secretary.
Subdivision
24. Other powers. A corporation may have and exercise all other
powers necessary or convenient to effect any or all of the business
purposes for which the corporation is incorporated.
Subdivision
25. Trust Land. Any corporation which holds an interest in
trust land may not encumber that interest without the prior approval
of the Tribal Council and the Area Director, Aberdeen Area Office
Bureau of Indian Affairs.
Subdivision
26. Sovereign Immunity of the Tribe. Consent to suit by a corporation
shall in no way extend to the Tribe, nor shall a consent to suit by
a corporation in any way be deemed a waiver of any of the rights,
privileges and immunities of the Tribe. [TCR 94-124]
11-163 CORPORATE SEAL.
Subdivision
1. Seal not required. A corporation may, but need not, have
a corporate seal, and the use or nonuse of a corporate seal does not
affect the validity, recordability, or enforceability of a document
or act. If a corporation has a corporate seal, the use of the seal
by the corporation on a document is not necessary.
Subdivision
2. Required words; use. If a corporation has a corporate seal,
the seal may consist of a mechanical imprinting device, or a rubber
stamp with a facsimile of the seal affixed thereon, or a facsimile
or reproduction of either. The seal need include only the word "Seal,"
but it may also include a part or all of the name of the corporation
and a combination, derivation, or abbreviation of either or both of
the phrases "a Tribal Corporation," "Winnebago Tribe
of Nebraska" and "Corporate Seal." If a corporate seal
is used, it or a facsimile of it may be affixed, engraved, printed,
placed, stamped with indelible ink, or in any other manner reproduced
on any document. [TCR 94-124]
11-165 EFFECT OF LACK OF POWER; ULTRA VIRES.
The doing,
continuing, or performing by a corporation of an act, or an executed
or wholly or partially executory contract, conveyance or transfer to
or by the corporation, if otherwise lawful, is not invalid because the
corporation was without the power to do, continue, or perform the act,
contract, conveyance, or transfer, unless the lack of power is established
in the court:
(a) In
a proceeding by a shareholder against the corporation to enjoin the
doing, continuing, or performing of the act, contract, conveyance,
or transfer. If the unauthorized act, continuation, or performance
sought to be enjoined is being, or to be, performed or made pursuant
to a contract to which the corporation is a party, the court may,
if just and reasonable in the circumstances, set aside and enjoin
the performance of the contract and in so doing may allow to the corporation
or to the other parties to the contract compensation for the loss
or damage sustained as a result of the action of the court in setting
aside and enjoining the performance of the contract;
(b) In
a proceeding by or in the name of the corporation, whether acting
directly or through a legal representative, or through shareholders
in a representative or derivative suit, against the incumbent or former
officers or directors of the corporation for exceeding or otherwise
violating their authority, or against a person having actual knowledge
of the lack of power; or
(c) In
a proceeding by the Tribal Council, as provided in section 11-757,
to dissolve the corporation, or in a proceeding by the Tribal Council
to enjoin the corporation from the transaction of unauthorized business.
[TCR 94-124]
ORGANIZATION; BYLAWS
| 11-171
Organization. |
11-181
Bylaws.
|
11-171
ORGANIZATION.
Subdivision
1. Role of incorporators. If the first board is not named in
the articles, the incorporators may elect the first board or may act
as directors with all of the powers, rights, duties, and liabilities
of directors, until directors are elected or until shares are issued,
whichever occurs first.
Subdivision
2. Meeting. After the issuance of the certificate of incorporation,
the incorporators or the directors named in the articles shall either
hold an organizational meeting at the call of a majority of the incorporators
or of the directors named in the articles, or take written action,
for the purposes of transacting business and taking actions necessary
or appropriate to complete the organization of the corporation, including,
without limitation, amending the articles, electing directors, adopting
bylaws, electing officers, adopting banking resolutions, authorizing
or ratifying the purchase, lease, or other acquisition of suitable
space, furniture, furnishings, supplies, and materials, approving
a corporate seal, approving forms of certificates or transaction statements
for shares of the corporation, adopting a fiscal year for the corporation,
accepting subscriptions for and issuing shares of the corporation,
and making any appropriate tax elections. If a meeting is held, the
person or persons calling the meeting shall give at least three days
notice of the meeting to each incorporator or director named, stating
the date, time, and place of the meeting. [TCR 94-124]
11-181 BYLAWS.
Subdivision
1. Generally. A corporation may, but need not, have bylaws.
Bylaws may contain any provision relating to the management of the
business or the regulation of the affairs of the corporation not inconsistent
with law or the articles.
Subdivision
2. Power of board. Initial bylaws may be adopted pursuant to
section 11-171 by the incorporators or by the first board. Unless
reserved by the articles to the shareholders, the power to adopt,
amend, or repeal the bylaws is vested in the board. The power of the
board is subject to the power of the shareholders, exercisable in
the manner provided in subdivision 3, to adopt, amend, or repeal bylaws
adopted, amended, or repealed by the board. After the adoption of
the initial bylaws, the board shall not adopt, amend, or repeal a
bylaw fixing a quorum for meetings of shareholders, prescribing procedures
for removing directors or filling vacancies in the board, or fixing
the number of directors or their classifications, qualifications,
or terms of office, but may adopt or amend a bylaw to increase the
number of directors.
Subdivision
3. Power of shareholders; procedure. If a shareholder or shareholders
holding three percent or more of the voting power of the shares entitled
to vote propose a resolution for action by the shareholders to adopt,
amend, or repeal bylaws adopted, amended, or repealed by the board
and the resolution sets forth the provision or provisions proposed
for adoption, amendment, or repeal, the limitations and procedures
for submitting, considering, and adopting the resolution are the same
as provided in section 11-135, subdivisions 2 to 4, for amendment
of the articles. The provisions of this subdivision regarding shareholder
proposed amendments shall not apply to a corporation registered or
reporting under the federal securities laws, to the extent that those
provisions are in conflict with the federal securities laws or rules
promulgated thereunder, in which case the federal securities laws
or rules promulgated thereunder shall govern. [TCR 94-124]
BOARD
| 11-201
Board. |
11-225
Vacancies. |
| 11-203
Number. |
11-231
Board meetings. |
| 11-205
Qualifications; election. |
11-233
Absent directors. |
| 11-207
Terms. |
11-235
Quorum. |
| 11-209
Acts not void or voidable. |
11-237
Act of the board. |
| 11-211
Compensation. |
11-239
Action without meeting. |
| 11-213
Classification of directors. |
11-241
Committees. |
| 11-215
Cumulative voting for directors. |
11-251
Standard of conduct. |
| 11-221
Resignation. |
11-255
Director conflicts of interest. |
|
11-223
Removal of directors.
|
|
11-201
BOARD.
Subdivision
1. Board to manage. The business and affairs of a corporation
shall be managed by or under the direction of a board, subject to
the provisions of subdivision 2 and section 11-457. The members of
the first board may be named in the articles or elected by the incorporators
pursuant to section 11-171 or by the shareholders.
Subdivision
2. Shareholder management. The holders of the shares entitled
to vote for directors of the corporation may, by unanimous affirmative
vote, take any action that this Code requires or permits the board
to take. As to an action taken by the shareholders in that manner:
(a)
The directors have no duties, liabilities, or responsibilities as
directors under this Code with respect to or arising from the action;
(b)
The shareholders collectively and individually have all of the duties,
liabilities, and responsibilities of directors under this Code with
respect to and arising from the action;
(c)
If the action relates to a matter required or permitted by this
Code or by any other law to be approved or adopted by the board,
either with or without approval or adoption by the shareholders,
the action is deemed to have been approved or adopted by the board;
and
(d)
A requirement that an instrument filed with a governmental agency
contain a statement that the action has been approved and adopted
by the board is satisfied by a statement that the shareholders have
taken the action under this subdivision. [TCR 94-124]
11-203 NUMBER.
The board
shall consist of one or more directors. The number of directors shall
be fixed by or in the manner provided in the articles or bylaws. The
number of directors may be increased or, subject to section 11-223,
decreased at any time by amendment to or in the manner provided in the
articles or bylaws. [TCR 94-124]
11-205 QUALIFICATIONS; ELECTION.
Directors
shall be natural persons. The method of election and any additional
qualifications for directors may be imposed by or in the manner provided
in the articles or bylaws. A director need not be a member of the Tribe
unless the articles of incorporation or bylaws so prescribe. [TCR 94-124]
11-207 TERMS.
Unless
fixed terms are provided for in the articles or bylaws, a director serves
for an indefinite term that expires at the next regular meeting of the
shareholders. A fixed term of a director shall not exceed five years.
A director holds office for the term for which the director was elected
and until a successor is elected and has qualified, or until the earlier
death, resignation, removal, or disqualification of the director. [TCR
94-124]
11-209 ACTS NOT VOID OR VOIDABLE.
The expiration
of a director's term with or without the election of a qualified successor
does not make prior or subsequent acts of the officers or the board
void or voidable. [TCR 94-124]
11-211 COMPENSATION.
Subject
to any limitations in the articles or bylaws, the board may fix the
compensation of directors. [TCR 94-124]
11-213 CLASSIFICATION OF DIRECTORS.
Directors
may be divided into classes as provided in the articles or bylaws. [TCR
94-124]
11-215 CUMULATIVE VOTING FOR DIRECTORS.
Subdivision
1. Voting rights. Unless the articles provide that there shall
be no cumulative voting, and except as provided in section 11-223,
subdivision 5, each shareholder entitled to vote for directors has
the right to cumulate those votes in the election of directors by
giving written notice of intent to cumulate those votes to any officer
of the corporation before the meeting, or to the presiding officer
at the meeting at which the election is to occur at any time before
the election of directors at the meeting, in which case:
(a)
The presiding officer at the meeting shall announce, before the
election of directors, that shareholders shall cumulate their votes;
and
(b)
Each shareholder shall cumulate those votes either by casting for
one candidate the number of votes equal to the number of directors
to be elected multiplied by the number of votes represented by the
shares, or by distributing all of those votes on the same principle
among any number of candidates.
Subdivision
2. Modifications. No amendment to the articles or bylaws which
has the effect of denying, limiting, or modifying the right to cumulative
voting for directors provided in this section shall be adopted if
the votes of a proportion of the voting power sufficient to elect
a director at an election of the entire board under cumulative voting
are cast against the amendment. [TCR 94-124]
11-221 RESIGNATION.
A director
may resign at any time by giving written notice to the corporation.
The resignation is effective without acceptance when the notice is given
to the corporation, unless a later effective time is specified in the
notice. [TCR 94-124]
11-223 REMOVAL OF DIRECTORS.
Subdivision
1. Modification. The provisions of this section apply unless
modified by the articles, the bylaws, or an agreement described in
section 11-457.
Subdivision
2. Removal by directors. A director may be removed at any time,
with or without cause, if:
(a)
The director was named by the board to fill a vacancy;
(b)
The shareholders have not elected directors in the interval between
the time of the appointment to fill a vacancy and the time of the
removal; and
(c)
A majority of the remaining directors present affirmatively vote
to remove the director.
Subdivision
3. Removal by shareholders. One or all of the directors may
be removed at any time, with or without cause, by the affirmative
vote of the holders of the proportion or number of the voting power
of the shares of the classes or series the director represents sufficient
to elect them, except as provided in subdivision 4.
Subdivision
4. Exception for corporation with cumulative voting. In a corporation
having cumulative voting, unless the entire board is removed simultaneously,
a director is not removed from the board if there are cast against
removal of the director the votes of a proportion of the voting power
sufficient to elect the director at an election of the entire board
under cumulative voting.
Subdivision
5. Election of replacements. New directors may be elected at
a meeting at which directors are removed. If the corporation allows
cumulative voting and a shareholder notifies the presiding officer
at any time prior to the election of new directors of intent to cumulate
the votes of the shareholder, the presiding officer shall announce
before the election that cumulative voting is in effect, and shareholders
shall cumulate their votes as provided in section 11-215, clause (b).
[TCR 94-124]
11-225 VACANCIES.
Unless
different rules for filling vacancies are provided for in the articles
or bylaws:
(a)(1)
Vacancies on the board resulting from the death, resignation, removal,
or disqualification of a director may be filled by the affirmative
vote of a majority of the remaining directors, even though less than
a quorum; and
(2)
Vacancies on the board resulting from newly created directorships
may be filled by the affirmative vote of a majority of directors
serving at the time of the increase; and
(b) Each
director elected under this section to fill a vacancy holds office
until a qualified successor is elected by the shareholders at the
next regular or special meeting of the shareholders. [TCR 94-124]
11-231 BOARD MEETINGS.
Subdivision
1. Time; place. Meetings of the board may be held from time
to time as provided in the articles or bylaws at any place within
or without the Reservation that the board may select or by any means
described in subdivision 2. If the board fails to select a place for
a meeting, the meeting shall be held at the principal executive office,
unless the articles or bylaws provide otherwise.
Subdivision
2. Electronic communications. (a) A conference among directors
by any means of communication through which the directors may simultaneously
hear each other during the conference constitutes a board meeting,
if the same notice is given of the conference as would be required
by subdivision 3 for a meeting, and if the number of directors participating
in the conference would be sufficient to constitute a quorum at a
meeting. Participation in a meeting by that means constitutes presence
in person at the meeting.
(b)
A director may participate in a board meeting not described in paragraph
(a) by any means of communication through which the director, other
directors so participating, and all directors physically present
at the meeting may simultaneously hear each other during the meeting.
Participation in a meeting by that means constitutes presence in
person at the meeting.
Subdivision
3. Calling meetings; notice. Unless the articles or bylaws
provide for a different time period, a director may call a board meeting
by giving ten days notice to all directors of the date, time, and
place of the meeting. The notice need not state the purpose of the
meeting unless the articles or bylaws require it.
Subdivision
4. Previously scheduled meetings. If the day or date, time,
and place of a board meeting have been provided in the articles or
bylaws, or announced at a previous meeting of the board, no notice
is required. Notice of an adjourned meeting need not be given other
than by announcement at the meeting at which adjournment is taken.
Subdivision
5. Waiver of notice. A director may waive notice of a meeting
of the board. A waiver of notice by a director entitled to notice
is effective whether given before, at, or after the meeting, and whether
given in writing, orally, or by attendance. Attendance by a director
at a meeting is a waiver of notice of that meeting, except where the
director objects at the beginning of the meeting to the transaction
of business because the meeting is not lawfully called or convened
and does not participate thereafter in the meeting. [TCR 94-124]
11-233 ABSENT DIRECTORS.
If the
articles or bylaws so provide, a director may give advance written consent
or opposition to a proposal to be acted on a board meeting. If the director
is not present at the meeting, consent or opposition to a proposal does
not constitute presence for purposes of determining the existence of
a quorum, but consent or opposition shall be counted as a vote in favor
of or against the proposal and shall be entered in the minutes or other
record of action at the meeting, if the proposal acted on at the meeting
is substantially the same or has substantially the same effect as the
proposal to which the director has consented or objected.
11-235 QUORUM.
A majority,
or a larger or smaller proportion or number provided in the articles
or bylaws, of the directors currently holding office is a quorum for
the transaction of business. In the absence of a quorum, a majority
of the directors present may adjourn a meeting from time to time until
a quorum is present. If a quorum is present when a duly called or held
meeting is convened, the directors present may continue to transact
business until adjournment, even though the withdrawal of a number of
directors originally present leaves less than the proportion or number
otherwise required for a quorum. [TCR 94-124]
11-237 ACT OF THE BOARD.
The board
shall take action by the affirmative vote of a majority of directors
present at a duly held meeting, except where this Code or the articles
require the affirmative vote of a larger proportion or number. If the
articles require a larger proportion or number than is required by this
Code for a particular action, the articles shall control. [TCR 94-124]
11-239 ACTION WITHOUT MEETING.
Subdivision
1. Method. An action required or permitted to be taken at a
board meeting may be taken by written action signed by all of the
directors. If the articles so provide, any action, other than an action
requiring shareholder approval, may be taken by written action signed
by the number of directors that would be required to take the same
action at a meeting of the board at which all directors were present.
Subdivision
2. Effective time. The written action is effective when signed
by the required number of directors, unless a different effective
time is provided in the written action.
Subdivision
3. Notice; liability. When written action is permitted to be
taken by less than all directors, all directors shall be notified
immediately of its text and effective date. Failure to provide the
notice does not invalidate the written action. A director who does
not sign or consent to the written action has no liability for the
action or actions taken thereby. [TCR 94-124]
11-241 COMMITTEES.
Subdivision
1. Generally. A resolution approved by the affirmative vote
of a majority of the board may establish committees having the authority
of the board in the management of the business of the corporation
only to the extent provided in the resolution. Committees may include
a special litigation committee consisting of one or more independent
directors or other independent persons to consider legal rights or
remedies of the corporation and whether those rights and remedies
should be pursued. Committees other than special litigation committees
are subject at all times to the direction and control of the board.
Subdivision
2. Membership. Committee members shall be natural persons.
Unless the articles or bylaws provide for a different membership or
manner of appointment, a committee shall consist of one or more persons,
who need not be directors, appointed by affirmative vote of a majority
of the directors present.
Subdivision
4. Procedure. Sections 11-231 to 11-239 apply to committees
and members of committees to the same extent as those sections apply
to the board and directors.
Subdivision
5. Minutes. Minutes, if any, of committee meetings shall be
made available upon request to members of the committee and to any
director.
Subdivision
6. Standard of conduct. The establishment of, delegation of
authority to, and action by a committee does not alone constitute
compliance by a director with the standard of conduct set forth in
section 11-251.
Subdivision
7. Committee members deemed directors. Committee members are
deemed to be directors for purposes of sections 11-251, 11-255, and
11-521. [TCR 94-124]
11-251 STANDARD OF CONDUCT.
Subdivision
1. Standard; liability. A director shall discharge the duties
of the position of director in good faith, in a manner the director
reasonably believes to be in the best interests of the corporation,
and with the care an ordinarily prudent person in a like position
would exercise under similar circumstances. A person who so performs
those duties is not liable by reason of being or having been a director
of the corporation.
Subdivision
2. Reliance. (a) A director is entitled to rely on information,
opinions, reports, or statements, including financial statements and
other financial data, in each case prepared or presented by:
(1)
one or more officers or employees of the corporation whom the
director reasonably believes to be reliable and competent in the
matters presented;
(2)
counsel, public accountants, or other persons as to matters that
the director reasonably believes are within the person's professional
or expert competence; or
(3)
a committee of the board upon which the director does not serve,
duly established in accordance with section 11-241, as to matters
within its designated authority, if the director reasonably believes
the committee to merit confidence.
(b)
Paragraph (a) does not apply to a director who has knowledge concerning
the matter in question that makes the reliance otherwise permitted
by paragraph (a) unwarranted.
Subdivision
3. Presumption of assent; dissent. A director who is present
at a meeting of the board when an action is approved by the affirmative
vote of a majority of the directors present is presumed to have assented
to the action approved, unless the director:
(a)
Objects at the beginning of the meeting to the transaction of business
because the meeting is not lawfully called or convened and does
not participate thereafter in the meeting, in which case the director
shall not be considered to be present at the meeting for any purpose
of this Code;
(b)
Votes against the action at the meeting; or
(c)
Is prohibited by section 11-255 from voting on the action.
Subdivision
4. Elimination or limitation of liability. A director's personal
liability to the corporation or its shareholders for monetary damages
for breach of fiduciary duty as a director may be eliminated or limited
in the articles. The articles shall not eliminate or limit the liability
of a director:
(a)
for any breach of the director's duty of loyalty to the corporation
or its shareholders;
(b)
for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
(c)
under section 11-559;
(d)
for any transaction from which the director derived an improper
personal benefit; or
(e)
for any act or omission occurring prior to the date when the provision
in the articles eliminating or limiting liability becomes effective.
[TCR 94-124]
11-255 DIRECTOR CONFLICTS OF INTEREST.
Subdivision
1. Conflict; procedure when conflict arises. A contract or
other transaction between a corporation and one or more of its directors,
or between a corporation and an organization in or of which one or
more of its directors are directors, officers, or legal representatives
or have a material financial interest, is not void or voidable because
the director or directors or the other organizations are parties or
because the director or directors are present at the meeting of the
shareholders or the board or a committee at which the contract or
transaction is authorized, approved, or ratified, if:
(a)
The contract or transaction was, and the person asserting the validity
of the contract or transaction sustains the burden of establishing
that the contract or transaction was, fair and reasonable as to
the corporation at the time it was authorized, approved, or ratified;
(b)
The material facts as to the contract or transaction and as to the
director or director's interest are fully disclosed or known to
the shareholders and the contract or transaction is approved in
good faith by (1) the holders of two-thirds of the voting power
of the shares entitled to vote which are owned by persons other
than the interested director or directors, or (2) the unanimous
affirmative vote of the holders of all outstanding shares, whether
or not entitled to vote;
(c)
The material facts as to the contract or transaction and as to the
director or director's interest are fully disclosed or known to
the board or a committee, and the board or committee authorizes,
approves, or ratifies the contract or transaction in good faith
by a majority of the board or committee, but the interested director
or directors shall not