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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 be counted in determining the presence of
a quorum and shall not vote; or
(d)
The contract or transaction is a distribution described in section
11-551, subdivision 1, or a merger or exchange described in section
11-601, subdivision 1 or 2.
Subdivision
2. Material financial interest. For purposes of this section:
(a)
A director does not have a material financial interest in a resolution
fixing the compensation of the director or fixing the compensation
of another director as a director, officer, employee, or agent of
the corporation, even though the first director is also receiving
compensation from the corporation; and
(b)
A director has a material financial interest in each organization
in which the director, or the spouse, parents, children and spouses
of children, brothers and sisters and spouses of brothers and sisters
of the director, or any combination of them have a material financial
interest.
Subdivision
3. Compensation agreements. During any tender offer or request
or invitation for tenders of any class or series of shares of a publicly
held corporation, other than an offer, request, or invitation by the
publicly held corporation, the publicly held corporation shall not
enter into or amend, directly or indirectly, agreements containing
provisions, whether or not dependent on the occurrence of any event
or contingency, that increase, directly or indirectly, the current
or future compensation of any officer or director of the publicly
held corporation. This subdivision does not prohibit routine increases
in compensation, or other routine compensation agreements, undertaken
in the ordinary course of the publicly held corporation's business.
[TCR 94-124]
OFFICERS
| 11-301
Officers required. |
11-331
Contract rights. |
| 11-305
Duties of required officers. |
11-341
Resignation; removal; vacancies. |
| 11-311
Other officers. |
11-351
Delegation. |
| 11-315
Multiple offices. |
11-361
Standard of conduct.
|
| 11-321
Officers deemed elected. |
|
11-301 OFFICERS REQUIRED.
A corporation
shall have one or more natural persons exercising the functions of the
offices, however designated, of chief executive officer and chief financial
officer. [TCR 94-124]
11-305 DUTIES OF REQUIRED OFFICERS.
Subdivision
1. Presumption; modification. Unless the articles, the bylaws,
or a resolution adopted by the board and not inconsistent with the
articles or bylaws, provide otherwise, the chief executive officer
and chief financial officer have the duties specified in this section.
Subdivision
2. Chief executive officer. The chief executive officer shall:
(a)
Have general active management of the business of the corporation;
(b)
When present, preside at all meetings of the board and of the shareholders;
(c)
See that all orders and resolutions of the board are carried into
effect;
(d)
Sign and deliver in the name of the corporation any deeds, mortgages,
bonds, contracts or other instruments pertaining to the business
of the corporation, except in cases in which the authority to sign
and deliver is required by law to be exercised by another person
or is expressly delegated by the articles or bylaws or by the board
to some other officer or agent of the corporation;
(e)
Maintain records of and, whenever necessary, certify all proceedings
of the board and the shareholders; and
(f)
Perform other duties prescribed by the board.
Subdivision
3. Chief financial officer. The chief financial officer shall:
(a)
Keep accurate financial records for the corporation;
(b)
Deposit all money, drafts, and checks in the name of and to the
credit of the corporation in the banks and depositories designated
by the board;
(c)
Endorse for deposit all notes, checks, and drafts received by the
corporation as ordered by the board, making proper vouchers therefore;
(d)
Disburse corporate funds and issue checks and drafts in the name
of the corporation, as ordered by the board;
(e)
Render to the chief executive officer and the board, whenever requested,
an account of all transactions by the chief financial officer and
of the financial condition of the corporation; and
(f)
Perform other duties prescribed by the board or by the chief executive
officer. [TCR 94-124]
11-311 OTHER OFFICERS.
The board
may elect or appoint, in a manner set forth in the articles or bylaws
or in a resolution approved by the affirmative vote of a majority of
the directors present, any other officers or agents the board deems
necessary for the operation and management of the corporation, each
of whom shall have the powers, rights, duties, responsibilities, and
terms in office provided for in the articles or bylaws or determined
by the board. [TCR 94-124]
11-315 MULTIPLE OFFICES.
Any number
of offices or functions of those offices may be held or exercised by
the same person. If a document must be signed by persons holding different
offices or functions and a person holds or exercises more than one of
those offices or functions, that person may sign the document in more
than one capacity, but only if the document indicates each capacity
in which the person signs. [TCR 94-124]
11-321 OFFICERS DEEMED ELECTED.
In the
absence of an election or appointment of officers by the board, the
person or persons exercising the principal functions of the chief executive
officer or the chief financial officer are deemed to have been elected
to those offices, except for the purpose of determining the location
of the principal executive office, which in that case is the registered
office of the corporation. [TCR 94-124]
11-331 CONTRACT RIGHTS.
The election
or appointment of a person as an officer or agent does not, of itself,
create contract rights. A corporation may enter into a contract with
an officer or agent for a period of time if, in the board's judgment,
the contract would be in the best interests of the corporation. The
fact that the contract may be for a term longer than the terms of the
directors who authorized or approved the contract does not make the
contract void or voidable. [TCR 94-124]
11-341 RESIGNATION; REMOVAL; VACANCIES.
Subdivision
1. Resignation. An officer 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 date is specified in the notice.
Subdivision
2. Removal. An officer may be removed at any time, with or
without cause by a resolution approved by the affirmative vote of
a majority of the directors present, subject to the provisions of
a shareholder control agreement. The removal is without prejudice
to any contractual rights of the officer.
Subdivision
3. Vacancy. A vacancy in an office because of death, resignation,
removal, disqualification, or other cause may, or in the case of a
vacancy in the office of chief executive officer or chief financial
officer shall, be filled for the unexpired portion of the term in
the manner provided in the articles or bylaws, or determined by the
board, or pursuant to section 11-321. [TCR 94-124]
11-351 DELEGATION.
Unless
prohibited by the articles or bylaws or by a resolution approved by
the affirmative vote of a majority of the directors present, an officer
elected or appointed by the board may, without the approval of the board,
delegate some or all of the duties and powers of an office to other
persons. An officer who delegates the duties or powers of an office
remains subject to the standard of conduct for an officer with respect
to the discharge of all duties and powers so delegated. [TCR 94-124]
11-361 STANDARD OF CONDUCT.
An officer
shall discharge the duties of an office in good faith, in a manner the
officer 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 exercising the principal
functions of an office or to whom some or all of the duties and powers
of an office are delegated pursuant to section 11-351 is deemed an officer
for purposes of this section and sections 11-467 and 11-521. [TCR 94-124]
SHARES; SHAREHOLDERS
| 11-401
Authorized shares. |
11-435
Notice. |
| 11-402
Share dividends, divisions, and combinations. |
11-436
Electronic communications. |
| 11-403
Subscriptions for shares. |
11-437
Act of the shareholders. |
| 11-405
Consideration for shares; value and payment; liability. |
11-441
Action without a meeting. |
| 11-409
Rights to purchase. |
11-443
Quorum.
|
| 11-413
Preemptive rights. |
11-445
Voting rights. |
| 11-417
Share certificates, issuance and contents; uncertificated shares. |
11-447
Voting of shares by organizations and legal representatives. |
| 11-419
Lost share certificates; replacement. |
11-449
Proxies. |
| 11-423
Fractional shares. |
11-453
Voting trusts. |
| 11-425
Liability of subscribers and shareholders with respect to shares. |
11-455
Shareholder voting agreements.
|
| 11-429
Restriction on transfer or registration of securities. |
11-457
Shareholder control agreements. |
| 11-431
Regular meetings of shareholders. |
11-461
Books and records; inspection. |
|
11-433
Special meetings of shareholders.
|
11-463
Financial statements. |
| 11-467
Equitable remedies. |
| 11-471
Rights of dissenting shareholders. |
| 11-473
Procedures for asserting dissenter's rights. |
11-401 AUTHORIZED SHARES.
Subdivision
1. Board may authorize. Subject to any restrictions in the
articles, a corporation may issue securities and rights to purchase
securities only when authorized by the board.
Subdivision
2. Terms of shares. All the shares of a corporation:
(a)
Shall be of one class and one series, unless the articles establish,
or authorize the board to establish, more than one class or series;
(b)
Shall be common shares entitled to vote and shall have equal rights
and preferences in all matters not otherwise provided for by the
board, unless and to the extent that the articles have fixed the
relative rights and preferences of different classes and series;
and
(c)
Shall have, unless a different par value is specified in the articles,
a par value of one cent per share, solely for the purpose of a law,
statute or rule imposing a tax or fee based upon the capitalization
of a corporation, and a par value fixed by the board for the purpose
of a statute or rule requiring the shares of the corporation to
have a par value.
Subdivision
3. Procedure for fixing terms. (a) Subject to any restrictions
in the articles, the power granted in subdivision 2 may be exercised
by a resolution or resolutions approved by the affirmative vote of
a majority of the directors present establishing a class or series,
setting forth the designation of the class or series, and fixing the
relative rights and preferences of the class or series. Any of the
rights and preferences of a class or series:
(1)
may be made dependent upon facts ascertainable outside the articles,
or outside the resolution or resolutions establishing the class
or series, provided that the manner in which the facts operate
upon the rights and preferences of the class or series is clearly
and expressly set forth in the articles or in the resolution or
resolutions establishing the class or series; and
(2)
may incorporate by reference some or all of the terms of any agreements,
contracts, or other arrangements entered into by the issuing corporation
in connection with the establishment of the class or series if
the corporation retains at its principal executive office a copy
of the agreements, contracts, or other arrangements or the portions
incorporated by reference.
(b)
A statement setting forth the name of the corporation and the text
of the resolution and certifying the adoption of the resolution
and the date of adoption shall be filed with the Tribal Secretary
before the issuance of any shares for which the resolution creates
rights or preferences not set forth in the articles; provided, however,
where the shareholders have received notice of the creation of shares
with rights or preferences not set forth in the articles before
the issuance of the shares, the statement may be filed any time
within one year after the issuance of the shares. The resolution
is effective when the statement has been filed with the Tribal Secretary;
or, if it is not required to be filed with the Tribal Secretary
before the issuance of shares, on the date of its adoption by the
directors.
(c)
A statement filed with the Tribal Secretary in accordance with paragraph
(b) is not considered an amendment of the articles for purposes
of sections 11-137 and 11-471.
Subdivision
4. Specific terms. Without limiting the authority granted in
this section, a corporation may issue shares of a class or series:
(a)
Subject to the right of the corporation to redeem any of those shares
at the price fixed for their redemption by the articles or by the
board or at a price determined in the manner specified by the articles
or by the board;
(b)
Entitling the shareholders to cumulative, partially cumulative,
or noncumulative distributions in the amounts fixed by the articles
or by the board or in amounts determined in the manner specified
by the articles or by the board;
(c)
Having preference over any class or series of shares for the payment
of distributions of any or all kinds;
(d)
Convertible into shares of any other class or any series of the
same or another class on the terms fixed by the articles or by the
board or on terms determined in the manner specified by the articles
or by the board; or
(e)
Having full, partial, or no voting rights, except as provided in
section 11-137. [TCR 94-124]
11-402 SHARE DIVIDENDS, DIVISIONS, AND COMBINATIONS.
Subdivision
1. Power to effect. A corporation may effect a share dividend
or a division or combination of its shares as provided in this section.
As used in this section, the terms "division" and "combination"
mean dividing or combining shares of any class or series, whether
issued or unissued, into a greater or lesser number of shares of the
same class or series.
Subdivision
2. When shareholder approval required; filing of articles of amendment.
(a) Articles of amendment must be adopted by the board and the shareholders
under sections 11-135 and 11-137 to effect a division or combination
if, as a result of the proposed division or combination:
(1)
the rights or preferences of the holders of outstanding shares
of any class or series will be adversely affected; or
(2)
the percentage of authorized shares remaining unissued after the
division or combination will exceed the percentage of authorized
shares that were unissued before the division or combination.
For
purposes of this section, an increase or decrease in the relative
voting right of the shares that are the subject of the division
or combination that arises solely from the increase or decrease
in the number of the shares outstanding is not an adverse effect
on the outstanding shares of any class or series and any increase
in the percentage of authorized shares remaining unissued arising
solely from the elimination of fraction shares under section 11-423
must be disregarded.
(b)
If a division or combination is effected under this subdivision,
articles of amendment must be prepared that contain the information
required by section 11-139.
Subdivision
3. By action of board alone; filing of articles of amendment.
(a) Subject to the restrictions provided in subdivision 2 or any restrictions
in the articles, a share dividend, division, or combination may be
effected by action of the board alone, without the approval of shareholders
under sections 11-135 and 11-137. In effecting division or combination
under this subdivision, the board may amend the articles to increase
or decrease the par value of shares, increase or decrease the number
of authorized shares, and make any other change necessary or appropriate
to assure that the rights or preferences of the holders of outstanding
shares of any class or series will not be adversely affected by the
division or combination.
(b)
If a division or combination that includes an amendment of the articles
is effected under this subdivision, then articles of amendment must
be prepared that contain the information required by section 11-139
and a statement that the amendment will not adversely affect the
rights or preferences of the holders of outstanding shares of any
class or series and will not result in the percentage of authorized
shares that remains unissued after the division or combination exceeding
the percentage of authorized shares that were unissued before the
division or combination. [TCR 94-124]
11-403 SUBSCRIPTIONS FOR SHARES.
Subdivision
1. Signed writing. A subscription for shares, whether made
before or after the incorporation of a corporation, is not enforceable
against the subscriber unless it is in writing and signed by the subscriber.
Subdivision
2. Irrevocable period. A subscription for shares if irrevocable
for a period of six months, unless the subscription agreement provides
for, or unless all of the subscribers consent to, an earlier revocation.
Subdivision
3. Payment; installments. A subscription for shares, whether
made before or after the incorporation of a corporation, shall be
paid in full at the time or times or in the installments, if any,
specified in the subscription agreement. In the absence of a provision
in the subscription agreement specifying the time at which the subscription
is to be paid, the subscription shall be paid at the time or times
determined by the board but a call made by the board for payment on
subscriptions shall be uniform for all shares of the same class or
for all shares of the same series.
Subdivision
4. Method of collection; forfeiture; cancellation or sale for account
of subscriber. (a) Unless otherwise provided in the subscription
agreement, in the event of default in the payment of an installment
or call when due, the corporation may proceed to collect the amount
due in the same manner as a debt due the corporation.
(b)
If the amount due on a subscription for shares remains unpaid for
a period of 20 days after written notice of demand for payment has
been given to the delinquent subscriber, the shares subscribed for
may be offered for sale by the corporation for a price in money
equaling or exceeding the sum of the full balance owed by the delinquent
subscriber plus the expenses incidental to the sale. If the shares
subscribed for are sold pursuant to this paragraph, the corporation
shall pay to the delinquent subscriber or to the delinquent subscriber's
legal representative the lesser of (i) the excess of net proceeds
realized by the corporation over the sum of the amount owed by the
delinquent subscriber plus the expenses incidental to the sale,
and (ii) the amount actually paid by the delinquent subscriber.
If the shares subscribed for are not sold pursuant to this paragraph,
the corporation may collect the amount due in the same manner as
a debt due the corporation or cancel the subscription in accordance
with paragraph (c).
(c)
If the amount due on a subscription for shares remains unpaid for
a period of 20 days after written notice of demand for payment has
been given to the delinquent subscriber and the shares subscribed
for by the delinquent subscriber have not been sold pursuant to
paragraph (b), the corporation may cancel the subscription, in which
event the shares subscribed for must be restored to the status of
authorized but unissued shares, the corporation may retain the portion
of the subscription price actually paid that does not exceed ten
percent of the subscription price, and the corporation shall refund
to the delinquent subscriber or the delinquent subscriber's legal
representative that portion of the subscription price actually paid
which exceeds ten percent of the subscription price. [TCR 94-124]
11-405 CONSIDERATION FOR SHARE; VALUE AND PAYMENT; LIABILITY.
Subdivision
1. Consideration; procedure. Subject to any restrictions in
the articles:
(a)
Shares may be issued for any consideration, including, without limitation,
money or other tangible or intangible property received by the corporation
or to be received by the corporation under a written agreement,
or services rendered to the corporation or to be rendered to the
corporation under a written agreement, as authorized by resolution
approved by the affirmative vote of a majority of the directors
present, or approved by the affirmative vote of the holders of a
majority of the voting power of the shares present, valuing all
nonmonetary consideration and establishing a price in money or other
consideration, or a minimum price, or a general formula or method
by which the price will be determined; and
(b)
Upon authorization in accordance with section 11-402, the corporation
may, without any new or additional consideration, issue its own
shares in exchange for or in conversion of its outstanding shares,
or issue its own shares pro-rata to its shareholders or the shareholders
of one or more classes or series, to effectuate share dividends,
divisions, or combinations. No shares of a class or series, shares
of which are then outstanding, shall be issued to the holders of
shares of another class or series (except in exchange for or in
conversion of outstanding shares of the other class or series),
unless the issuance either is expressly provided for in the articles
or is approved at a meeting by the affirmative vote of the holders
of a majority of the voting power of all shares of the same class
or series as the shares to be issued.
Subdivision
2. Value; liability. The determinations of the board or the
shareholders as to the amount or fair value or the fairness to the
corporation of the consideration received or to be received by the
corporation for its shares or the terms of payments, as well as the
agreement to issue shares for that consideration, are presumed to
be proper if they are made in good faith and on the basis of accounting
methods, or a fair valuation or other method, reasonable in the circumstances,
and unless otherwise required by the articles, the consideration may
be less than the par value, if any, of the shares. Directors or shareholders
who are present and entitled to vote, and who, intentionally or without
reasonable investigation, fail to vote against approving an issue
of shares for a consideration that is unfair to the corporation, or
overvalue property or services received or to be received by the corporation
as consideration for shares issued, are jointly and severally liable
to the corporation for the benefit of the then shareholders who did
not consent to and are damaged by the action, to the extent of the
damages of those shareholders. A director or shareholder against whom
a claim is asserted pursuant to this subdivision, except in case of
knowing participation in a deliberate fraud, is entitled to contribution
on an equitable basis from other directors or shareholders who are
liable under this section.
Subdivision
3. Payment; liability; contribution; statute of limitations.
(a) A corporation shall issue only shares that are nonassessable or
that are assessable but are issued with the unanimous consent of the
shareholders. "Nonassessable" shares are shares for which
the agreed consideration has been fully paid, delivered, or rendered
to the corporation. Consideration in the form of a promissory note,
a check, or a written agreement to transfer property or render services
to a corporation in the future is fully paid when the note, check,
or written agreement is delivered to the corporation.
(b)
If shares are issued in violation of paragraph (a), the following
persons are jointly and severally liable to the corporation for
the difference between the agreed consideration for the shares and
the consideration actually received by the corporation:
(1)
A director or shareholder who was present and entitled to vote
but who failed to vote against the issuance of the shares knowing
of the violation;
(2)
The person to whom the shares were issued; and
(3)
A successor or transferee of the interest in the corporation of
a person described in clause (1) or (2), including a purchaser
of shares, a subsequent assignee, successor, or transferee, a
pledgee, a holder of any other security interest in the assets
of the corporation or shares granted by the person described in
clause (1) or (2), or a legal representative of or for the person
or estate of the person, which successor, transferee, purchaser,
assignee, pledgee, holder, or representative acquired the interest
knowing of the violation.
(c)
(1) A pledgee or holder of any other security interest in all or
any shares that have been issued in violation of paragraph (a) is
not liable under paragraph (b) if all those shares are surrendered
to the corporation. The surrender does not impair any rights of
the pledgee or holder of any other security interest against the
pledgor or person granting the security interest.
(2)
A pledgee, holder of any other security interest, or legal representative
is liable under paragraph (b) only in that capacity. The liability
of the person under paragraph (b) is limited to the assets held
in that capacity for the person or estate of the person described
in clause (1) or (2) of paragraph (b).
(3)
Each person liable under paragraph (b) has a full right of contribution
on an equitable basis from all other persons liable under paragraph
(b) for the same transaction.
(4)
An action shall not be maintained against a person under paragraph
(b) unless commenced within two years from the date on which shares
are issued in violation of paragraph (a). [TCR 94-124]
11-413 PREEMPTIVE RIGHTS.
Subdivision
1. Presumption; modification. Unless denied or limited in the
articles or by the board pursuant to section 11-401, subdivision 2,
clause (b), a shareholder of a corporation has the preemptive rights
provided in this section.
Subdivision
2. Definition. A preemptive right is the right of a shareholder
to acquire a certain fraction of the unissued securities or rights
to purchase securities of a corporation before the corporation may
offer them to other persons.
Subdivision
3. When right accrues. A shareholder has a preemptive right
whenever the corporation proposes to issue new or additional shares
or rights to purchase shares of the same series as the series held
by the shareholder or, if a class of shares has no series, the same
class as the class held by the shareholder, or new or additional securities
other than shares, or rights to purchase securities other than shares,
that are exchangeable for, convertible into, or carry a right to acquire
new or additional shares of the same series as the series held by
the shareholder or, if a class of shares has no series, the same class
as the class held by the shareholder.
Subdivision
4. Exemptions. A shareholder does not have a preemptive right
to acquire securities or rights to purchase securities that are:
(a)
Issued for a consideration other than money;
(b)
Issued pursuant to a plan of merger or exchange;
(c)
Issued pursuant to an employee or incentive benefit plan approved
at a meeting by the affirmative vote of the holders of a majority
of the voting power of all shares entitled to vote;
(d)
Issued upon exercise of previously issued rights to purchase securities
of the corporation;
(e)
Issued pursuant to a public offering of the corporation's securities
or rights to purchase securities. For purposes of this clause, "public
offering" means an offering of the corporation's securities
or rights to purchase securities if the resale or other distribution
of those securities or rights to purchase securities is not restricted
by Tribal, state or federal securities laws; or
(f)
Issued pursuant to a plan of reorganization approved by a court
of competent jurisdiction pursuant to a law of this Tribe or a statute
of the United States.
Subdivision
5. Fraction to be acquired. The fraction of the new issue that
each shareholder may acquire by exercise of a preemptive right is
the ratio that the number of shares of that class or series owned
by the shareholder before the new issue bears to the total number
of shares of that class or series issued and outstanding before the
new issue.
Subdivision
6. Waiver. A shareholder may waive a preemptive right in writing.
The waiver is binding upon the shareholder whether or not consideration
has been given for the waiver. Unless otherwise provided in the waiver,
a waiver of preemptive rights is effective only for the proposed issuance
described in the waiver.
Subdivision
7. Notice. When proposing the issuance of securities with respect
to which shareholders have preemptive rights under this section, the
board shall cause notice to be given to each shareholder entitled
to preemptive rights. The notice shall be given at least ten days
before the date by which the shareholder must exercise a preemptive
right and shall contain:
(a)
The number or amount of securities with respect to which the shareholder
has a preemptive right, and the method used to determine that number
or amount;
(b)
The price and other terms and conditions upon which the shareholder
may purchase them; and
(c)
The time within which and the method by which the shareholder must
exercise the right.
Subdivision
8. Issuance to others. Securities that are subject to preemptive
rights but not acquired by shareholders in the exercise of those rights
may, for a period not exceeding one year after the date fixed by the
board for the exercise of those preemptive rights, be issued to persons
the board determines, at a price not less than, and on terms no more
favorable to the purchaser than, those offered to the shareholders.
Securities that are not issued during that one year period shall,
at the expiration of the period, again become subject to preemptive
rights of shareholders.
Subdivision
9. Modification. No amendment to the articles which has the
effect of denying, limiting, or modifying the preemptive rights 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]
11-417 SHARE CERTIFICATES; ISSUANCE AND CONTENTS; UNCERTIFICATED
SHARES.
Subdivision
1. Certificated; uncertificated. The shares of a corporation
shall be either certificated shares or uncertificated shares. Each
holder of certificated shares issued in accordance with section 11-405,
subdivision 3, paragraph (a) is entitled to a certificate of shares.
Subdivision
2. Certificates; signature required. Certificates shall be
signed by an agent or officer authorized in the articles or bylaws
to sign share certificates or, in the absence of an authorization,
by an officer.
Subdivision
3. Signature valid. If a person signs or has a facsimile signature
placed upon a certificate while an officer, transfer agent, or registrar
of a corporation, the certificate may be issued by the corporation,
even if the person has ceased to have that capacity before the certificate
is issued, with the same effect as if the person had that capacity
at the date of its issue.
Subdivision
4. Form of certificate. A certificate representing shares of
a corporation shall contain on its face:
(a)
The name of the corporation;
(b)
A statement that the corporation is incorporated under the laws
of the Winnebago Tribe of Nebraska;
(c)
The name of the person to whom it is issued; and
(d)
The number and class of shares, and the designation of the series,
if any, that the certificate represents.
Subdivision
5. Limitations set forth. A certificate representing shares
issued by a corporation authorized to issue shares of more than one
class or series shall set forth upon the face or back of the certificate,
or shall state that the corporation will furnish to an shareholder
upon request and without charge, a full statement of the designations,
preferences, limitations, and relative rights of the shares of each
class or series authorized to be issued, so far as they have been
determined, and the authority of the board to determine the relative
rights and preferences of subsequent classes or series.
Subdivision
6. Prima facie evidence. A certificate signed as provided in
subdivision 2 is prima facie evidence of the ownership of the shares
referred to in the certificate.
Subdivision
7. Uncertificated shares. Unless uncertificated shares are
prohibited by the articles or bylaws, a resolution approved by the
affirmative vote of a majority of the directors present may provide
that some or all of any or all classes and series of its shares will
be uncertificated shares. The resolution does not apply to shares
represented by a certificate until the certificate is surrendered
to the corporation. Within a reasonable time after the issuance or
transfer of uncertificated shares, the corporation shall send to the
new shareholder the information required by this section to be stated
on certificates. Except as otherwise expressly provided by statute,
the rights and obligations of the holders of certificated and uncertificated
shares of the same class and series are identical. [TCR 94-124]
11-419 LOST SHARE CERTIFICATES; REPLACEMENT.
Subdivision
1. Issuance. A new share certificate may be issued to replace
one that is alleged to have been lost, stolen, or destroyed. The owner
must (i) notify the issuer within a reasonable time after having notice
of the loss and request a replacement before the issuer has notice
that the security has been acquired by a bona fide purchaser; (ii)
file with the issuer a sufficient indemnity bond; and (iii) satisfy
any other reasonable requirements imposed by the issuer.
Subdivision
2. Not overissue. The issuance of a new certificate under this
section does not constitute an overissue of the shares it represents.
[TCR 94-124]
11-423 FRACTIONAL SHARES.
Subdivision
1. Issuance; alternative exchange. A corporation may issue
fractions of a share originally or upon transfer. If it does not issue
fractions of a share, it shall in connection with an original issuance
of shares:
(a)
Arrange for the disposition of fractional interests by those entitled
to them;
(b)
Pay in money the fair value of fractions of a share as of the time
when persons entitled to receive the fractions are determined; or
(c)
Issue scrip or warrants in registered or bearer form that entitle
the holder to receive a certificate for a full share upon the surrender
of the scrip or warrants aggregating a full share.
Subdivision
2. Restrictions; rights. A corporation shall not pay money
for fractional shares if that action would result in the cancellation
of more than 20 percent of the outstanding shares of a class. A determination
by the board of the fair value of fractions of a share is conclusive
in the absence of fraud. A certificate or a transaction statement
for a fractional share does, but scrip or warrants do not unless they
provide otherwise, entitle the shareholder to exercise voting rights
or to receive distributions. The board may cause scrip or warrants
to be issued subject to the condition that they become void if not
exchanged for full shares before a specified date, or that the shares
for which scrip or warrants are exchangeable may be sold by the corporation
and the proceeds distributed to the holder of the scrip or warrants,
or to any other condition or set of conditions the board may impose.
[TCR 94-124]
11-425 LIABILITY OF SUBSCRIBERS AND SHAREHOLDERS WITH RESPECT TO
SHARES.
A subscriber
for shares or a shareholder of a corporation is under no obligation
to the corporation or its creditors with respect to the shares subscribed
for or owned, except to pay to the corporation the full consideration
for which the shares are issued or to be issued. [TCR 94-124]
11-429 RESTRICTION ON TRANSFER OR REGISTRATION OF SECURITIES.
Subdivision
1. How imposed. A restriction on the transfer or registration
of transfer of securities of a corporation may be imposed in the articles,
in the bylaws, by a resolution adopted by the shareholders, or by
an agreement among or other written action by a number of shareholders
or holders of other securities or among them and the corporation.
A restriction is not binding with respect to securities issued prior
to the adoption of the restriction, unless the holders of those securities
are parties to the agreement or voted in favor of the restriction.
Subdivision
2. Restrictions permitted. A written restriction on the transfer
or registration of transfer of securities of a corporation that is
not manifestly unreasonable under the circumstances and is noted conspicuously
on the face or back of the certificate or transaction statement may
be enforced against the holder of the restricted securities or a successor
or transferee of the holder, including a pledgee or a legal representative.
Unless noted conspicuously on the face or back of the certificate
or transaction statement, a restriction, even though permitted by
this section, is ineffective against a person without knowledge of
the restriction. A restriction under this section is deemed to be
noted conspicuously and is effective if the existence of the restriction
is stated on the certificate and reference is made to a separate document
creating or describing the restriction. [TCR 94-124]
11-431 REGULAR MEETINGS OF SHAREHOLDERS.
Subdivision
1. Frequency. Regular meetings of shareholders may be held
on an annual or other less frequent periodic basis, but need not be
held unless required by the articles or bylaws or by subdivision 2.
Subdivision
2. Demand by shareholder. If a regular meeting of shareholders
has not been held during the immediately preceding 15 months, shareholders
holding at least ten percent of the voting power of all shares entitled
to vote may demand a regular meeting of shareholders by written notice
of demand given to the chief executive officer or the chief financial
officer of the corporation. Within 30 days after receipt of the demand
by one of those officers, the board shall cause a regular meeting
of shareholders to be called and held on notice no later than 90 days
after receipt of the demand, all at the expense of the corporation.
If the board fails to cause a regular meeting to be called and held
as required by this subdivision, the shareholder or shareholders making
the demand may call the regular meeting by giving notice as required
by section 11-435, all at the expense of the corporation.
Subdivision
3. Time; place. A regular meeting, if any, shall be held on
the day or date and at the time and place fixed by, or in a manner
authorized by, the articles or bylaws, except that a meeting called
by or at the demand of a shareholder pursuant to subdivision 2 shall
be held on the Reservation.
Subdivision
4. Elections required; other business. At each regular meeting
of shareholders there shall be an election of qualified successors
for directors who serve for an indefinite term or whose terms have
expired or are due to expire within six months after the date of the
meeting. No other particular business is required to be transacted
at a regular meeting. Any business appropriate for action by the shareholders
may be transacted at a regular meeting. [TCR 94-124]
11-433 SPECIAL MEETINGS OF SHAREHOLDERS.
Subdivision
1. Who may call. Special meetings of the shareholders may be
called for any purpose or purposes at any time, by:
(a)
The chief executive officer;
(b)
The chief financial officer;
(c)
Two or more directors;
(d)
A person authorized in the articles or bylaws to call special meetings;
or
(e)
A shareholder or shareholders holding ten percent or more of the
voting power of all shares entitled to vote, except that a special
meeting for the purpose of considering any action to directly or
indirectly facilitate or effect a business combination, including
any action to change or otherwise affect the composition of the
board of directors for that purpose, must be called by 25 percent
or more of the voting power of all shares entitled to vote.
Subdivision
2. Demand by shareholders. A shareholder or shareholders holding
the voting power specified in subdivision 1, paragraph (e), may demand
a special meeting of shareholders by written notice of demand given
to the chief executive officer or chief financial officer of the corporation
and containing the purposes of the meeting. Within 30 days after receipt
of the demand by one of those officers, the board shall cause a special
meeting of shareholders to be called and held on notice not later
than 90 days after receipt of the demand, all at the expense of the
corporation. If the board fails to cause a special meeting to be called
and held as required by this subdivision, the shareholder or shareholders
making the demand may call the meeting by giving notice as required
by section 11-435, all at the expense of the corporation.
Subdivision
3. Time; place. Special meetings shall be held on the date
and at the time and place fixed by the chief executive officer, the
chief financial officer, the board, or a person authorized by the
articles or bylaws to call a meeting, except that a special meeting
called by or at the demand of a shareholder or shareholders pursuant
to subdivision 2 shall be held on the Reservation.
Subdivision
4. Business limited. The business transacted at a special meeting
is limited to the purposes stated in the notice of the meeting. Any
business transacted at a special meeting that is not included in those
stated purposes is voidable by or on behalf of the corporation, unless
all of the shareholders have waived notice of the meeting in accordance
with section 11-435, subdivision 4. [TCR 94-124]
11-435 NOTICE.
Subdivision
1. To whom given. Except as otherwise provided in this Code,
notice of all meetings of shareholders shall be given to every holder
of shares entitled to vote, unless:
(a)
the meeting is an adjourned meeting and the date, time, and place
of the meeting were announced at the time of adjournment; or
(b)
the following have been mailed by first class mail to a shareholder
at the address in the corporate records and returned undeliverable:
(1)
two consecutive annual meeting notices and notices of any special
meetings held during the period between the two annual meetings;
or
(2)
all payments of dividends sent during a 12-month period, provided
there are at least two sent during the 12-month period.
An action or meeting that is taken or held without notice under
clause (2) has the same force and effect as if notice was given.
If the shareholder delivers a written notice of the shareholder's
current address to the corporation, the notice requirement is
reinstated.
Subdivision
2. When given. In all instances where a specific minimum notice
period has not otherwise been fixed by law, the notice shall be given
at least ten days before the date of the meeting, or a shorter time
provided in the articles or bylaws, and not more than 60 days before
the date of the meeting.
Subdivision
3. Contents. The notice shall contain the date, time, and place
of the meeting, and any other information required by this Code. In
the case of a special meeting, the notice shall contain a statement
of the purposes of the meeting. The notice may also contain any other
information required by the articles or bylaws or deemed necessary
or desirable by the board or by any other person or persons calling
the meeting.
Subdivision
4. Waiver, objections. A shareholder may waive notice of a
meeting of shareholders. A waiver of notice by a shareholder 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 shareholder at a meeting is a waiver of notice of that meeting,
except where the shareholder objects at the beginning of the meeting
to the transaction of business because the meeting is not lawfully
called or convened, or objects before a vote on an item of business
because the item may not lawfully be considered at that meeting and
does not participate in the consideration of the item at that meeting.
[TCR 94-124]
11-436 ELECTRONIC COMMUNICATIONS.
Subdivision
1. Electronic conferences. If and to the extent authorized
in the bylaws or by the board of a closely held corporation, a conference
among shareholders by any means of communication through which the
shareholders may simultaneously hear each other during the conference
constitutes a regular or special meeting of shareholders, if the same
notice is given of the conference to every holder of shares entitled
to vote as would be required by this Code for a meeting, and if the
number of shares held by the shareholders participating in the conference
would be sufficient to constitute a quorum at a meeting. Participation
in a conference by that means constitutes presence at the meeting
in person or by proxy if all the other requirements of section 11-449
are met.
Subdivision
2. Participation by electronic means. If and to the extent
authorized in the bylaws or by the board of a closely held corporation,
a shareholder may participate in a regular or special meeting of shareholders
not described in subdivision 1 by any means of communication through
which the shareholder, other shareholders so participating, and all
shareholders physically present at the meeting may simultaneously
hear each other during the meeting. Participation in a meeting by
that means constitutes presence at the meeting in person or by proxy
if all the other requirements of section 11-449 are met.
Subdivision
3. Waiver. Waiver of notice of a meeting by means of communication
described in subdivisions 1 and 2 may be given in the manner provided
in section 11-435, subdivision 4. Participation in a meeting by means
of communication described in subdivisions 1 and 2 is a waiver of
notice of that meeting, except where the shareholder objects at the
beginning of the meeting to the transaction of business because the
meeting is not lawfully called or convened, or objects before a vote
on an item of business because the item may not lawfully be considered
at the meeting and does not participate in the consideration of the
item at that meeting. [TCR 94-124]
11-437 ACT OF THE SHAREHOLDERS.
Subdivision
1. Majority required. The shareholders shall take action by
the affirmative vote of the holders of the greater of (1) a majority
of the voting power of the shares present and entitled to vote on
that item of business, or (2) a majority of the voting power of the
minimum number of the shares entitled to vote that would constitute
a quorum for the transaction of business at the meeting, except where
this Code or the articles require 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 control.
Subdivision
2. Voting by class. In any case where a class or series of
shares is entitled by this Code, the articles, the bylaws, or the
terms of the shares to vote as a class or series, the matter being
voted upon must also receive the affirmative vote of the holders of
the same proportion of the shares present of that class or series,
or of the total outstanding shares of that class or series, as the
proportion required pursuant to subdivision 1, unless the articles
require a larger proportion. Unless otherwise stated in the articles
or bylaws in the case of voting as a class, the minimum percentage
of the total number of shares of the class or series which must be
present shall be equal to the minimum percentage of all outstanding
shares entitled to vote required to be present under section 11-443.
[TCR 94-124]
11-441 ACTION WITHOUT A MEETING.
An action
required or permitted to be taken at a meeting of the shareholders may
be taken without a meeting by written action signed by all of the shareholders
entitled to vote on that action. The written action is effective when
it has been signed by all of those shareholders, unless a different
effective time is provided in the written action. [TCR 94-124]
11-443 QUORUM.
The holders
of a majority of the voting power of the shares entitled to vote at
a meeting are a quorum for the transaction of business, unless a larger
or smaller proportion or number is provided in the articles or bylaws.
If a quorum is present when a duly called or held meeting is convened,
the shareholders present may continue to transact business until adjournment,
even though the withdrawal of a number of shareholders originally present
leaves less than the proportion or number otherwise required for a quorum.
[TCR 94-124]
11-445 VOTING RIGHTS.
Subdivision
1. Determination. The board may fix a date not more than 60
days, or a shorter time period provided in the articles or bylaws,
before the date of a meeting of shareholders as the date for the determination
of the holders of shares entitled to notice of and entitled to vote
at the meeting. When a date is so fixed, only shareholders on that
date are entitled to notice of and permitted to vote at that meeting
of shareholders.
Subdivision
2. Certification of beneficial owner. A resolution approved
by the affirmative vote of a majority of the directors present may
establish procedure whereby a shareholder may certify in writing to
the corporation that all or a portion of the shares registered in
the name of the shareholder are held for the account of one or more
beneficial owners. Upon receipt by the corporation of the writing,
the persons specified as beneficial owners, rather than the actual
shareholder, are deemed the shareholders for the purposes specified
in the writing.
Subdivision
3. One vote per share. Unless otherwise provided in the articles
or in the terms of the shares, a shareholder has one vote for each
share held.
Subdivision
4. Nonshareholders. The articles may give or prescribe the
manner of giving a creditor, security holder, or other person a right
to vote under this section.
Subdivision
5. Jointly owned shares. Shares owned by two or more shareholders
may be voted by any one of them unless the corporation receives written
notice from any one of them denying the authority of that person to
vote those shares.
Subdivision
6. Manner of voting; presumption. Except as provided in subdivision
5, a holder of shares entitled to vote may vote any portion of the
shares in any way the shareholder chooses. If a shareholder votes
without designating the proportion or number of shares voted in a
particular way, the shareholder is deemed to have voted all of the
shares in that way. [TCR 94-124]
11-447 VOTING OF SHARES BY ORGANIZATIONS AND LEGAL REPRESENTATIVES.
Subdivision
1. Shares held by other corporation. Shares of a corporation
registered in the name of another tribal or foreign corporation may
be voted by the chief executive officer or another legal representative
of that corporation.
Subdivision
2. Shares held by subsidiary. Except as provided in subdivision
3, shares of a corporation registered in the name of a subsidiary
are not entitled to vote on any matter.
Subdivision
3. Shares controlled in fiduciary capacity. Shares of a corporation
in the name of or under the control of the corporation or a subsidiary
in a fiduciary capacity are not entitled to vote on any matter, except
to the extent that the settler or beneficial owner possesses and exercises
a right to vote or gives the corporation binding instructions on how
to vote the shares.
Subdivision
4. Voting by certain representatives. Shares under the control
of a person in a capacity as a personal representative, an administrator,
executor, guardian, conservator, or attorney-in-fact may be voted
by the person, either in person or by proxy, without registration
of those shares in the name of the person. Shares registered in the
name of a trustee of a trust or in the name of a custodian may be
voted by the person, either in person or by proxy, but a trustee of
a trust or a custodian shall not vote shares held by the person unless
they are registered in the name of the person.
Subdivision
5. Voting by trustee in bankruptcy or receiver. Shares registered
in the name of a trustee in bankruptcy or a receiver may be voted
by the trustee or receiver either in person or by proxy. Shares under
the control of a trustee in bankruptcy or a receiver may be voted
by the trustee or receiver without registering the shares in the name
of the trustee or receiver, if authority to do so is contained in
an appropriate order of the court by which the trustee or receiver
was appointed.
Subdivision
6. Shares held by other organizations. Shares registered in
the name of an organization not described in subdivisions 1 to 5 may
be voted either in person or by proxy by the legal representative
of that organization.
Subdivision
7. Pledged shares. A shareholder whose shares are pledged may
vote those shares until the shares are registered in the name of the
pledgee. If the corporation pledges its own shares under section 11-553,
subdivision 1, the corporation shall not be entitled to vote the shares
at a meeting or otherwise. [TCR 94-124]
11-449 PROXIES.
Subdivision
1. Authorization. A shareholder may cast or authorize the casting
of a vote by filing a written appointment of a proxy with an officer
of the corporation at or before the meeting at which the appointment
is to be effective. A written appointment of a proxy may be signed
by the shareholder or authorized by the shareholder by transmission
of a telegram, cablegram, or other means of electronic transmission,
provided that the telegram, cablegram, or other means of electronic
transmission must set forth or be submitted with information from
which it can be determined that the telegram, cablegram, or other
electronic transmission was authorized by the shareholder. Any reproduction
of the writing or transmission may be substituted or used in lieu
of the original writing or transmission for any purpose for which
the original transmission could be used, provided that the copy, facsimile
telecommunication, or other reproduction is a complete and legible
reproduction of the entire original writing or transmission. An appointment
of a proxy for shares held jointly by two or more shareholders is
valid if signed or otherwise authorized by any one of them, unless
the corporation receives from any one of those shareholders written
notice either denying the authority of that person to appoint a proxy
or appointing a different proxy.
Subdivision
2. Duration. The appointment of a proxy is valid for 11 months,
unless a longer period is expressly provided in the appointment. No
appointment is irrevocable unless the appointment is coupled with
an interest in the shares or in the corporation.
Subdivision
3. Termination. An appointment may be terminated at will, unless
the appointment is coupled with an interest, in which case it shall
not be terminated except in accordance with the terms of an agreement,
if any, between the parties to the appointment. Termination may be
made by filing written notice of the termination of the appointment
with an officer of the corporation, or by filing a new written appointment
of a proxy with an officer of the corporation. Termination in either
manner revokes all prior proxy appointments and is effective when
filed with an officer of the corporation.
Subdivision
4. Revocation by death, incapacity. The death or incapacity
of a person appointing a proxy does not revoke the authority of the
proxy, unless written notice of the death or incapacity is received
by an officer of the corporation before the proxy exercises the authority
under that appointment.
Subdivision
5. Multiple proxies. Unless the appointment specifically provides
otherwise, if two or more persons are appointed as proxies for a shareholder:
(a)
Any one of them may vote the shares on each item of business in
accordance with specific instructions contained in the appointment;
and
(b)
If no specific instructions are contained in the appointment with
respect to voting the shares on a particular item of business, the
shares shall be voted as a majority of the proxies determine. If
the proxies are equally divided, the shares shall not be voted.
Subdivision
6. Vote of proxy accepted; liability. Unless the appointment
of a proxy contains a restriction, limitation, or specific reservation
of authority, the corporation may accept a vote or action taken by
a person named in the appointment. The vote of a proxy is final, binding,
and not subject to challenge, but the proxy is liable to the shareholder
or beneficial owner for damages resulting from a failure to exercise
the proxy or from an exercise of the proxy in violation of the authority
granted in the appointment.
Subdivision
7. Limited authority. If a proxy is given authority by a shareholder
to vote on less than all items of business considered at a meeting
of shareholders, the shareholder is considered to be present and entitled
to vote by the proxy for purposes of section 11-437, subdivision 1,
only with respect to those items of business for which the proxy has
authority to vote. A proxy who is given authority by a shareholder
who abstains with respect to an item of business is considered to
have authority to vote on the item of business for purposes of this
subdivision. [TCR 94-124]
11-453 VOTING TRUSTS.
Subdivision
1. Authorization; period; termination. Shares in a corporation
may be transferred to a trustee pursuant to written agreement, for
the purpose of conferring on the trustee the right to vote and otherwise
represent the beneficial owner of those shares for a period not exceeding
15 years, except that if the agreement is made in connection with
an indebtedness of the corporation, the voting trust may extend until
the indebtedness is discharged. Unless otherwise specified in the
agreement, the voting trust may be terminated at any time by the beneficial
owners of a majority of the voting power of the shares held by the
trustee. A copy of the agreement shall be filed with the corporation.
Subdivision
2. Voting by trustees. Unless otherwise provided in the trust
agreement, if there are two or more trustees, the manner of voting
is determined as provided in section 11-445, subdivision 5. [TCR 94-124]
11-455 SHAREHOLDER VOTING AGREEMENTS.
A written
agreement among persons who are then shareholders or subscribers for
shares to be issued, relating to the voting of their shares, is valid
and specifically enforceable by and against the parties to the agreement.
The agreement may override the provisions of section 11-449 regarding
proxies and is not subject to the provisions of section 11-453 regarding
voting trusts. [TCR 94-124]
11-457 SHAREHOLDER CONTROL AGREEMENTS.
Subdivision
1. Authorized. A written agreement among the shareholders of
a corporation and the subscribers for shares to be issued, relating
to the control of any phase of the business and affairs of the corporation,
its liquidation and dissolution, or the relations among shareholders
of or subscribers to shares of the corporation is valid and specifically
enforceable as provided in subdivision 2.
Subdivision
2. Method of approval; enforceability; copies. (a) A written
agreement among persons described in subdivision 1 that relates to
the control of or the liquidation and dissolution of the corporation,
the relations among them, or any phase of the business and affairs
of the corporation, including, without limitation, the management
of its business, the declaration and payment of distributions, the
election of directors or officers, the employment of shareholders
by the corporation, or the arbitration of disputes, is valid and specifically
enforceable, if the agreement is signed by all persons who are then
the shareholders of the corporation, whether or not the shareholders
all have voting shares, and the subscribers for shares, whether or
not voting shares, to be issued.
(b)
The agreement is enforceable by the persons described in subdivision
1 who are parties to it and is binding upon and enforceable against
only those persons and other persons having knowledge of the existence
of the agreement. A copy of the agreement shall be filed with the
corporation. The existence and location of a copy of the agreement
shall be noted conspicuously on the face or back of each certificate
for shares issued by the corporation and on each transaction statement.
(c)
A shareholder, a beneficial owner of shares, or another person having
a security interest in shares has the right upon written demand
to obtain a copy of the agreement from the corporation at the expense
of the corporation.
Subdivision
3. Liability. The effect of an agreement authorized by this
section is to relieve the board and the director or directors in their
capacities as directors of, and to impose upon the parties to the
agreement, the liability for acts or omissions imposed by law upon
directors to the extent that and so long as the discretion or powers
of the directors in the management of the business and affairs of
the corporation are exercised by the shareholders under a provision
in the agreement. A shareholder is not liable pursuant to this subdivision
by virtue of a shareholder vote, if the shareholder had no right to
vote on the action.
Subdivision
4. Other agreements. This section does not apply to, limit,
or restrict agreements otherwise valid, nor is the procedure set forth
in this section the exclusive method of agreement among shareholders
or between the shareholders and the corporation with respect to any
of the matters described in this section. [TCR 94-124]
11-461 BOOKS AND RECORDS; INSPECTION.
Subdivision
1. Share register, dates of issuance. (a) A corporation shall
keep at its principal executive office, or at another place or places
within the United States determined by the board, a share register
not more than one year old, containing the names and addresses of
the shareholders and the number and classes of shares held by each
shareholder.
(b)
A corporation shall also keep, at its principal executive office,
or at another place or places within the United States determined
by the board, a record of the date on which certificates or transaction
statements representing shares were issued.
Subdivision
2. Other documents required. A corporation shall keep at its
principal executive office, or, if its principal executive office
is outside the Reservation, shall make available at its registered
office within ten days after receipt by an officer of the corporation
of a written demand for them made by a person described in subdivision
4, originals or copies of:
(a)
Records of all proceedings of shareholders for the last three years;
(b)
Records of all proceedings of the board for the last three years;
(c)
Its articles and all amendments currently in effect;
(d)
Its bylaws and all amendments currently in effect;
(e)
Financial statements required by section 11-463 and the financial
statement for the most recent interim period prepared in the course
of the operation of the corporation for distribution to the shareholders
or to a governmental agency as a matter a public record;
(f)
Reports made to shareholders generally within the last three years;
(g)
A statement of the names and usual business addresses of its directors
and principal officers;
(h)
Voting trust agreements described in section 11-453;
(i)
Shareholder control agreements described in section 11-457; and
(j)
A copy of agreements, contracts, or other arrangements or portions
of them incorporated by reference under section 11-401, subdivision
3.
Subdivision
3. Financial records. A corporation shall keep appropriate
and complete financial records.
Subdivision
4. Right to inspect. (a) A shareholder, beneficial owner, or
a holder of a voting trust certificate of a corporation that is not
a publicly held corporation has an absolute right, upon written demand,
to examine and copy, in person or by a legal representative, at any
reasonable time:
(1)
The share register; and
(2)
All documents referred to in subdivision 2.
(b)
A shareholder, beneficial owner, or a holder of a voting trust certificate
of a corporation that is not a publicly held corporation has a right,
upon written demand, to examine and copy, in person or by a legal
representative, other corporate records at any reasonable time only
if the shareholder, beneficial owner, or holder of a voting trust
certificate demonstrates a proper purpose for the examination.
(c)
A shareholder, beneficial owner, or a holder of a voting trust certificate
of a publicly held corporation has, upon written demand stating
the purpose and acknowledged before the Tribal Secretary, a right
at any reasonable time to examine and copy the corporation's share
register and other corporate records reasonably related to the stated
purpose and described with reasonable particularity in the written
demand upon demonstrating the stated purpose to be a proper purpose.
The acknowledged or verified demand must be directed to the corporation
at its registered office on the Reservation or at its principal
place of business.
(d)
For purposes of this section, a "proper purpose" is one
reasonably related to the person's interest as a shareholder, beneficial
owner, or holder of a voting trust certificate of the corporation.
Subdivision
5. Protective orders. On application of the corporation, the
court may issue a protective order permitting the corporation to withhold
portions of the records of proceedings of the board for a reasonable
period of time, not to exceed 12 months, in order to prevent premature
disclosure of confidential information which would be likely to cause
competitive injury to the corporation. A protective order may be renewed
for successive reasonable periods of time, each not to exceed 12 months
and in total not to exceed 36 months, for good cause shown. In the
event a protective order is issued, the statute of limitations for
any action which the shareholder, beneficial owner, or holder of a
voting trust certificate might bring as a result of information withheld
automatically extends for the period of delay. If the court does not
issue a protective order with respect to any portion of the records
of proceedings as requested by the corporation, it shall award reasonable
expenses, including attorney's fees and disbursements, to the shareholder,
beneficial owner, or holder of a voting trust certificate. This subdivision
does not limit the right of the court to grant other protective orders
or impose other reasonable restrictions on the nature of the corporate
records that may be copied or examined under subdivision 4 or the
use or distribution of the records by the demanding shareholder, beneficial
owner, or holder of a voting trust certificate.
Subdivision
6. Other use prohibited. A shareholder, beneficial owner, or
holder of a voting trust certificate who has gained access under this
section to any corporate record including the share register may not
use or furnish to another for use the corporate record or a portion
of the contents for any purpose other than a proper purpose. Upon
application of the corporation, the court may issue a protective order
or order other relief as may be necessary to enforce the provisions
of this subdivision.
Subdivision
7. Cost of copies. Copies of the share register and all documents
referred to in subdivision 2, if required to be furnished under this
section, shall be furnished at the expense of the corporation. In
all other cases, the corporation may charge the requesting party a
reasonable fee to cover the expenses of providing the copy.
Subdivision
8. Computerized records. The records maintained by a corporation,
including its share register, financial records, and minute books,
may utilize any information storage technique, including, for example,
punched holes, printed or magnetized spots, or micro-images, even
though that makes them illegible visually, if the records can be converted
accurately and within a reasonable time, into a form that is legible
visually and whose contents are assembled by related subject matter
to permit convenient use by people in the normal course of business.
A corporation shall convert any of the records referred to in subdivision
4 upon the request of a person entitled to inspect them, and the expense
of the conversion shall be borne by the person who bears the expense
of copying pursuant to subdivision 7. A copy of the conversion is
admissible in evidence, and shall be accepted for all other purposes,
to the same extent as the existing or original records would be if
they were legible visually. [TCR 94-124]
11-463 FINANCIAL STATEMENTS.
A corporation
shall, upon written request by a shareholder, furnish annual financial
statements, including at least a balance sheet as of the end of each
fiscal year and a statement of income for the fiscal year, which shall
be prepared on the basis of accounting methods reasonable in the circumstances
and may be consolidated statements of the corporation and one or more
of its subsidiaries. In the case of statements audited by a public accountant,
each copy shall be accompanied by a report setting forth the opinion
of the accountant on the statements; in other cases, each copy shall
be accompanied by a statement of the chief financial officer or other
person in charge of the corporation's financial records stating the
reasonable belief of the person that the financial statements were prepared
in accordance with accounting methods reasonable in the circumstances,
describing the basis of presentation, and describing any respects in
which the financial statements were not prepared on a basis consistent
with those prepared for the previous year. [TCR 94-124]
11-467 EQUITABLE REMEDIES.
If a corporation
or an officer or director of the corporation violates a provision of
this Code, the court may, in an action brought by a shareholder of the
corporation, grant any equitable relief it deems just and reasonable
in the circumstances and award expenses, including attorney's fees and
disbursements, to the shareholder. [TCR 94-124]
11-471 RIGHTS OF DISSENTING SHAREHOLDERS.
Subdivision
1. Actions creating rights. A shareholder of a corporation
may dissent from, and obtain payment for the fair value of the shareholder's
shares in the event of, any of the following corporate actions:
(a)
An amendment of the articles that materially and adversely affects
the rights or preferences of the shares of the dissenting shareholder
in that it:
(1)
alters or abolishes a preferential right of the shares;
(2)
creates, alters, or abolishes a right in respect of the redemption
of the shares, including a provision respecting a sinking fund
for the redemption or repurchase of the shares;
(3)
alters or abolishes a preemptive right of the holder of the shares
to acquire shares, securities other than shares, or rights to
purchase shares or securities other than shares;
(4)
excludes or limits the right of a shareholder to vote on a matter,
or to cumulate votes, except as the right may be excluded or limited
through the authorization or issuance of securities of an existing
or new class or series with similar or different voting rights;
(b)
A sale, lease, transfer, or other disposition of all or substantially
all of the property and assets of the corporation not made in the
usual or regular course of its business, but not including a disposition
in dissolution described in section 11-725, subdivision 2, or a
disposition pursuant to an order of a court, or a disposition for
cash on terms requiring that all or substantially all of the net
proceeds of disposition be distributed to the shareholders in accordance
with their respective interests within one year after the date of
disposition;
(c)
A plan of merger, whether or not under this Code, to which the corporation
is a party, except as provided in subdivision 3;
(d)
A plan of exchange, whether or not under this Code, to which the
corporation is a party as the corporation whose shares will be acquired
by the acquiring corporation, if the shares of the shareholder are
entitled to be voted on the plan; or
(e)
Any other corporate action taken pursuant to a shareholder vote
with respect to which the articles, the bylaws, or a resolution
approved by the board directs that dissenting shareholders may obtain
payment for their shares.
Subdivision
2. Beneficial owners. (a) A shareholder shall not assert dissenter's
rights as to less than all of the shares registered in the name of
the shareholder, unless the shareholder dissents with respect to all
the shares that are beneficially owned by another person but registered
in the name of the shareholder and discloses the name and address
of each beneficial owner on whose behalf the shareholder dissents.
In that event, the rights of the dissenter shall be determined as
if the shares as to which the shareholder has dissented and the other
shares were registered in the names of different shareholders.
(b)
A beneficial owner of shares who is not the shareholder may assert
dissenter's rights with respect to shares held on behalf of the
beneficial owner, and shall be treated as a dissenting shareholder
under the terms of this section and section 11-473, if the beneficial
owner submits to the corporation at the time of or before the assertion
of the rights a written consent of the shareholder.
Subdivision
3. Rights not to apply. The right to obtain payment under this
section does not apply to a shareholder of the surviving corporation
in a merger, if the shares of the shareholder are not entitled to
be voted on the merger.
Subdivision
4. Other rights. The shareholders of a corporation who have
a right under this section to obtain payment for their shares do not
have a right at law or in equity to have a corporate action described
in subdivision 1 set aside or rescinded, except when the corporate
action is fraudulent with regard to the complaining shareholder or
the corporation. [TCR 94-124]
11-473 PROCEDURES FOR ASSERTING DISSENTER'S RIGHTS.
Subdivision
1. Definitions. (a) For purposes of this section, the terms
defined in this subdivision have the meanings given them.
(b)
"Corporation" means the issuer of the shares held by a
dissenter before the corporate action referred to in section 11-471,
subdivision 1 or the successor by merger of that issuer.
(c)
"Fair value of the shares" means the value of the shares
of a corporation immediately before the effective date of the corporate
action referred to in section 11-471, subdivision 1.
(d)
"Interest" means interest commencing five days after the
effective date of the corporate action referred to in section 11-471,
subdivision 1, up to and including the date of payment, calculated
at the rate provided by the laws of the Tribe for interest on verdicts
and judgments, or if the laws of the Tribe do not establish a rate,
then at the rate provided by the laws of the State of Nebraska for
interest on verdicts and judgments.
Subdivision
2. Notice of action. If a corporation calls a shareholder meeting
at which any action described in section 11-471, subdivision 1 is
to be voted upon, the notice of the meeting shall inform each shareholder
of the right to dissent and shall include a copy of section 11-471
and this section and a brief description of the procedure to be followed
under these sections.
Subdivision
3. Notice of dissent. If the proposed action must be approved
by the shareholders, a shareholder who wishes to exercise dissenter's
rights must file with the corporation before the vote on the proposed
action a written notice of intent to demand the fair value of the
shares owned by the shareholder and must not vote the shares in favor
of the proposed action.
Subdivision
4. Notice of procedure; deposit of shares. (a) After the proposed
action has been approved by the board and, if necessary, the shareholders,
the corporation shall send to all shareholders who have complied with
subdivision-3 and to all shareholders entitled to dissent if no shareholder
vote was required, a notice that contains:
(1)
The address to which a demand for payment and certificates of
certificated shares must be sent in order to obtain payment and
the date by which they must be received;
(2)
Any restrictions on transfer of uncertificated shares that will
apply after the demand for payment is received;
(3)
A form to be used to certify the date on which the shareholder,
or the beneficial owner on whose behalf the shareholder dissents,
acquired the shares or an interest in them and to demand payment;
and
(4)
A copy of section 11-471 and this section and a brief description
of the procedures to be followed under these sections.
(b)
In order to receive the fair value of the shares, a dissenting shareholder
must demand payment and deposit certificated shares or comply with
any restrictions on transfer of uncertificated shares within 30
days after the notice was given, but the dissenter retains all other
rights of a shareholder until the proposed action takes effect.
Subdivision
5. Payment; return of shares. (a) After the corporate action
takes effect, or after the corporation receives a valid demand for
payment, whichever is later, the corporation shall remit to each dissenting
shareholder who has complied with subdivisions 3 and 4 the amount
the corporation estimates to be the fair value of the shares, plus
interest, accompanied by:
(1)
the corporation's closing balance sheet and statement of income
for a fiscal year ending not more than 16 months before the effective
date of the corporate action, together with the latest available
interim financial statements;
(2)
an estimate by the corporation of the fair value of the shares
and a brief description of the method used to reach the estimate;
and
(3)
a copy of section 11-471 and this section, and a brief description
of the procedure to be followed in demanding supplemental payment.
(b)
The corporation may withhold the remittance described in paragraph
(a) from a person who was not a shareholder on the date the action
dissented from was first announced to the public or who is dissenting
on behalf of a person who was not a beneficial owner on that date.
If the dissenter has complied with subdivisions 3 and 4, the corporation
shall forward to the dissenter the materials described in paragraph
(a), a statement of the reason for withholding the remittance, and
an offer to pay to the dissenter the amount listed in the materials
if the dissenter agrees to accept that amount in full satisfaction.
The dissenter may decline the offer and demand payment under subdivision
6. Failure to do so entitles the dissenter only to the amount offered.
If the dissenter makes demand, subdivisions 7 and 8 apply.
(c)
If the corporation fails to remit payment within 60 days of the
deposit of certificates or the imposition of transfer restrictions
on uncertificated shares, it shall return all deposited certificates
and cancel all transfer restrictions. However, the corporation may
again give notice under subdivision 4 and require deposit or restrict
transfer at a later time.
Subdivision
6. Supplemental payment; demand. If a dissenter believes that
the amount remitted under subdivision 5 is less than the fair value
of the shares plus interest, the dissenter may give written notice
to the corporation of the dissenter's own estimate of the fair value
of the shares, plus interest, within 30 days after the corporation
mails the remittance under subdivision 5, and demand payment of the
difference. Otherwise, a dissenter is entitled only to the amount
remitted by the corporation.
Subdivision
7. Petition; determination. If the corporation receives a demand
under subdivision 6, it shall, within 60 days after receiving the
demand, either pay to the dissenter the amount demanded or agreed
to by the dissenter after discussion with the corporation or file
in court a petition requesting that the court determine the fair value
of the shares, plus interest. The petition shall name as parties all
dissenters who have demanded payment under subdivision 6 and who have
not reached agreement with the corporation. The jurisdiction of the
court is plenary and exclusive. The court may appoint appraisers,
with powers and authorities the court deems proper, to receive evidence
on and recommend the amount of the fair value of the shares. The court
shall determine whether the shareholder or shareholders in question
have fully complied with the requirements of this section, and shall
determine the fair value of the shares, taking into account any and
all factors the court finds relevant, computed by any method or combination
of methods that the court, in its discretion sees fit to use, whether
or not used by the corporation or by a dissenter. The fair value of
the shares as determined by the court is binding on all shareholders,
wherever located. A dissenter is entitled to judgment for the amount
by which the fair value of the shares as determined by the court,
plus interest, exceeds the amount, if any, remitted under subdivision
5, but shall not be liable to the corporation for the amount, if any,
by which the amount, if any, remitted to the dissenter under subdivision
5 exceeds the fair value of the shares as determined by the court,
plus interest.
Subdivision
8. Costs; fees; expenses. (a) The court shall determine the
costs and expenses of a proceeding under subdivision 7, including
the reasonable expenses and compensation of any appraisers appointed
by the court, and shall assess those costs and expenses against the
corporation, except that the court may assess part or all of those
costs and expenses against a dissenter whose action in demanding payment
under subdivision 6 is found to be arbitrary, vexatious, or not in
good faith.
(b)
If the court finds that the corporation has failed to comply substantially
with this section, the court may assess all fees and expenses of
any experts or attorneys as the court deems equitable. These fees
and expenses may also be assessed against a person who has acted
arbitrarily, vexatiously, or not in good faith in bringing the proceeding,
and may be awarded to a party injured by those actions.
(c)
The court may award, in its discretion, fees and expenses to an
attorney for the dissenters out of the amount awarded to the dissenters,
if any. [TCR 94-124]
LOANS; OBLIGATIONS; DISTRIBUTIONS
| 11-501
Loans; guarantees; suretyship. |
11-557
Liability of shareholders for illegal distributions. |
| 11-505
Advances. |
11-559
Liability of directors for illegal distributions. |
| 11-521
Indemnification. |
|
| 11-551
Distributions. |
|
|
11-553
Power to acquire shares.
|
|
11-501 LOANS; GUARANTEES; SURETYSHIP.
Subdivision
1. Prerequisites. A corporation may lend money to, guarantee
an obligation of, become a surety for, or otherwise financially assist
a person, if the transaction, or a class of transactions to which
the transaction belongs, is approved by the affirmative vote of a
majority of the directors present and:
(a)
Is in the usual and regular course of business of the corporation;
(b)
Is with, or for the benefit of, a related corporation, an organization
in which the corporation has a financial interest, an organization
with which the corporation has a business relationship, or an organization
to which the corporation has the power to make donations;
(c)
Is with, or for the benefit of, an officer or other employee of
the corporation or a subsidiary, including an officer or employee
who is a director of the corporation or a subsidiary, and may reasonably
be expected, in the judgment of the board, to benefit the corporation;
or
(d)
Has been approved 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 person
or persons, or
(2)
the unanimous affirmative vote of the holders of all outstanding
shares, whether or not entitled to vote.
Subdivision
2. Interest; security. A loan, guaranty, surety contract, or
other financial assistance under subdivision 1 may be with or without
interest and may be unsecured or may be secured in any manner, including,
without limitation, a grant of a security interest in shares of the
corporation.
Subdivision
3. Banking authority not granted. This section does not grant
any authority to act as a bank or to carry on the business of banking.
[TCR 94-124]
11-505 ADVANCES.
A corporation
may, without a vote of the directors, advance money to its directors,
officers, or employees to cover expenses that can reasonably be anticipated
to be incurred by them in the performance of their duties and for which
they would be entitled to reimbursement in the absence of an advance.
[TCR 94-124]
11-521 INDEMNIFICATION.
Subdivision
1. Definitions. (a) For purposes of this section, the terms
defined in this subdivision have the meanings given them.
(b)
"Corporation" includes a tribal or foreign corporation
that was the predecessor of the corporation referred to in this
section in a merger or other transaction in which the predecessor"s
existence ceased upon consummation of the transaction.
(c)
"Official capacity" means (1) with respect to a director,
the position of director in a corporation, (2) with respect to a
person other than a director, the elective or appointive office
or position held by an officer, member of a committee of the board,
or the employment relationship undertaken by an employee of the
corporation, and (3) with respect to a director, officer, or employee
of the corporation who, while a director, officer, or employee of
the corporation, is or was serving at the request of the corporation
or whose duties in that position involve or involved service as
a director, officer, partner, trustee, employee, or agent of another
organization or employee benefit plan, the position of that person
as a director, officer, partner, trustee, employee, or agent, as
the case may be, of the other organization or employee benefit plan.
(d)
"Proceeding" means a threatened, pending, or completed
civil, criminal, administrative, arbitration, or investigative proceeding,
including a proceeding by or in the right of the corporation.
(e)
"Special legal counsel" means counsel who has not represented
the corporation or a related corporation, or a director, officer,
member of a committee of the board, or employee, whose indemnification
is in issue.
Subdivision
2. Indemnification mandatory; standard. (a) Subject to the
provisions of subdivision 4, a corporation shall indemnify a person
made or threatened to be made a party to a proceeding by reason of
the former or present official capacity of the person against judgments,
penalties, fines, including, without limitation, excise taxes assessed
against the person with respect to an employee benefit plan, settlements,
and reasonable expenses, including attorney's fees and disbursements,
incurred by the person in connection with the proceeding, if, with
respect to the acts or omissions of the person complained of in the
proceeding, the person:
(1)
Has not been indemnified by another organization or employee benefit
plan for the same judgments, penalties, fines, including, without
limitation, excise taxes assessed against the person with respect
to an employee benefit plan, settlements, and reasonable expenses,
including attorney's fees and disbursements, incurred by the person
in connection with the proceeding with respect to the same acts
or omissions;
(2)
Acted in good faith;
(3)
Received no improper personal benefit and section 11-255, if applicable,
has been satisfied;
(4)
In the case of a criminal proceeding, had no reasonable cause
to believe the conduct was unlawful; and
(5)
In the case of acts or omissions occurring in the official capacity
described in subdivision 1, paragraph (c), clause (1) or (2),
reasonably believed that the conduct was in the best interests
of the corporation, or in the case of acts or omissions occurring
in the official capacity described in subdivision 1, paragraph
(c), clause (3), reasonably believed that the conduct was not
opposed to the best interests of the corporation. If the person's
acts or omissions complained of in the proceeding relate to conduct
as a director, officer, trustee, employee, or agent of an employee
benefit plan, the conduct is not considered to be opposed to the
best interests of the corporation if the person reasonably believed
that the conduct was in the best interests of the participants
or beneficiaries of the employee benefit plan.
(b)
The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent
does not, of itself, establish that the person did not meet the
criteria set forth in this subdivision.
Subdivision
3. Advances. Subject to the provisions of subdivision 4, if
a person is made or threatened to be made a party to a proceeding,
the person is entitled, upon written request to the corporation, to
payment or reimbursement by the corporation of reasonable expenses,
including attorney's fees and disbursements, incurred by the person
in advance of the final disposition of the proceeding, (a) upon receipt
by the corporation of a written affirmation by the person of a good
faith belief that the criteria for indemnification set forth in subdivision
2 have been satisfied and a written undertaking by the person to repay
all amounts so paid or reimbursed by the corporation, if it is ultimately
determined that the criteria for indemnification have not been satisfied,
and (b) after a determination that the facts then known to those making
the determination would not preclude indemnification under this section.
The written undertaking required by clause (a) is an unlimited general
obligation of the person making it, but need not be secured and shall
be accepted without reference to financial ability to make the repayment.
Subdivision
4. Prohibition or limit on indemnification or advances. The
articles or bylaws either may prohibit indemnification or advances
of expenses otherwise required by this section or may impose conditions
on indemnification or advances of expenses in addition to the conditions
contained in subdivisions 2 and 3 including, without limitation, monetary
limits on indemnification or advances of expenses, if the conditions
apply equally to all persons or to all persons within a given class.
A prohibition or limit on indemnification or advances may not apply
to or affect the right of a person to indemnification or advances
of expenses with respect to any acts or omissions of the person occurring
prior to the effective date of a provision in the articles or the
date of adoption of a provision in the bylaws establishing the prohibition
or limit on indemnification or advances.
Subdivision
5. Reimbursement to witnesses. This section does not require,
or limit the ability of, a corporation to reimburse expenses, including
attorney's fees and disbursements, incurred by a person in connection
with an appearance as a witness in a proceeding at a time when the
person has not been made or threatened to be made a party to a proceeding.
Subdivision
6. Determination of eligibility. (a) All determinations of
whether indemnification of a person is required because the criteria
set forth in subdivision 2 have been satisfied and whether a person
is entitled to payment or reimbursement of expenses in advance of
the final disposition of a proceeding as provided in subdivision 3
shall be made:
(1)
By the board by a majority of a quorum; directors who are at the
time parties to the proceeding shall not be counted for determining
either a majority or the presence of a quorum;
(2)
If a quorum under clause (1) cannot be obtained, by a majority
of a committee of the board, consisting solely of two or more
directors not at the time parties to the proceeding, duly designated
to act in the matter by a majority of the full board including
directors who are parties;
(3)
If a determination is not made under clause (1) or (2), by special
legal counsel, selected either by a majority of the board or a
committee by vote pursuant to clause (1) or (2) or, if the requisite
quorum of the full board cannot be obtained and the committee
cannot be established, by a majority of the full board including
directors who are parties;
(4)
If a determination is not made under clauses (1) to (3), by the
shareholders, excluding the votes of shares held by parties to
the proceeding; or
(5)
If an adverse determination is made under clauses (1) to (4) or
under paragraph (b), or if no determination is made under clauses
(1) to (4) or under paragraph (b) within 60 days after (i) the
later to occur of the termination of a proceeding or a written
request for indemnification to the corporation or (ii) a written
request for an advance of expenses, as the case may be, by the
court, which may be the same court in which the proceeding involving
the person's liability took place, upon application of the person
and any notice the court requires. The person seeking indemnification
or payment or reimbursement of expenses pursuant to this clause
has the burden of establishing that the person is entitled to
indemnification or payment or reimbursement of expenses.
(b)
With respect to a person who is not, and was not at the time of
the acts or omissions complained of in the proceedings, a director,
officer, or person possessing, directly or indirectly, the power
to direct or cause the direction of the management or policies of
the corporation, the determination whether indemnification of this
person is required because the criteria set forth in subdivision
2 have been satisfied and whether this person is entitled to payment
or reimbursement of expenses in advance of the final disposition
of a proceeding as provided in subdivision 3 may be made by an annually
appointed committee of the board, having at least one member who
is a director. The committee shall report at least annually to the
board concerning its actions.
Subdivision
7. Insurance. A corporation may purchase and maintain insurance
on behalf of a person in that person's official capacity against any
liability asserted against and incurred by the person in or arising
from that capacity, whether or not the corporation would have been
required to indemnify the person against the liability under the provisions
of this section.
Subdivision
8. Disclosure. A corporation that indemnifies or advances expenses
to a person in accordance with this section in connection with a proceeding
by or on behalf of the corporation shall report to the shareholders
in writing the amount of the indemnification or advance and to whom
and on whose behalf it was paid not later than the next meeting of
shareholders.
Subdivision
9. Indemnification of other persons. Nothing in this section
shall be construed to limit the power of the corporation to indemnify
other persons by contract or otherwise. [TCR 94-124]
11-551 DISTRIBUTIONS.
Subdivision
1. When permitted. The board may authorize and cause the corporation
to make a distribution only if the board determines, in accordance
with subdivision 2, that the corporation will be able to pay its debts
in the ordinary course of business after making the distribution and
the board does not know before the distribution is made that the determination
was or has become erroneous, and the corporation may make the distribution
if it is able to pay its debts in the ordinary course of business
after making the distribution. The effect of a distribution on the
ability of the corporation to pay its debts in the ordinary course
of business after making the distribution shall be measured in accordance
with subdivision 3. The right of the board to authorize, and the corporation
to make, distributions may be prohibited, limited, or restricted by
or the rights and priorities of persons to receive distributions may
be established by, the articles or bylaws or an agreement.
Subdivision
2. Determination presumed proper. A determination that the
corporation will be able to pay its debts in the ordinary course of
business after the distribution is presumed to be proper if the determination
is made in compliance with the standard of conduct provided in section
11-251 on the basis of financial information prepared in accordance
with accounting methods, or a fair valuation or other method, reasonable
in the circumstances. No liability under section 11-251 or 11-559
will accrue if the requirements of this subdivision have been met.
Subdivision
3. Effect measured. (a) In the case of a distribution made
by a corporation in connection with a purchase, redemption, or other
acquisition of its shares, the effect of the distribution shall be
measured as of the date on which money or other property is transferred,
or indebtedness payable in installments or otherwise is incurred,
by the corporation, or as of the date on which the shareholder ceases
to be a shareholder of the corporation with respect to the shares,
whichever is the earliest.
(b)
The effect of any other distribution shall be measured as of the
date of its authorization if payment occurs 120 days or less following
the date of authorization or as of the date of payment if payment
occurs more than 120 days following the date of authorization.
(c)
Indebtedness of a corporation incurred or issued in a distribution
in accordance with this section to a shareholder who as a result
of the transaction is no longer a shareholder is on a parity with
the indebtedness of the corporation to its general unsecured creditors,
except to the extent subordinated, agreed to, or secured by a pledge
of any assets of the corporation or a related corporation, or subject
to any other agreement between the corporation and the shareholder.
(d)
Sections 11-551 to 11-559 supersede all other laws of the Tribe
with respect to distributions.
Subdivision
4. Restrictions. (a) A distribution may be made to the holders
of a class or series of shares only if:
(1)
All amounts payable to the holders of shares having a preference
for the payment of that kind of distribution, other than those
holders who give notice to the corporation of their agreement
to waive their rights to that payment, are paid; and
(2)
The payment of the distribution does not reduce the remaining
net assets of the corporation below the aggregate preferential
amount payable in the event of liquidation to the holders of shares
having preferential rights, unless the distribution is made to
those shareholders in the order and to the extent of their respective
priorities or the holders of shares who do not receive distributions
in that order give notice to the corporation of their agreement
to waive their rights to that distribution.
A determination
that the payment of the distribution does not reduce the remaining
net assets of the corporation below the aggregate preferential amount
payable in the event of liquidation to the holders of shares having
preferential rights is presumed to be proper if the determination
is made in compliance with the standard of conduct provided in section
11-251 on the basis of financial information prepared in accordance
with accounting methods, or a fair valuation, or other methods,
reasonable in the circumstances. Liability under section 11-251
or 11-559 will not arise if the requirements of this paragraph are
met.
(b)
If the money or property available for distribution is insufficient
to satisfy all preferences, the distributions shall be made pro-rata
according to the order of priority of preferences by classes and
by series within those classes unless those holders who do not receive
distributions in that order give notice to the corporation of their
agreement to waive their rights to that distribution. [TCR 94-124]
11-553 POWER TO ACQUIRE SHARES.
Subdivision
1. When permitted; status of shares. A corporation may acquire
its own shares, subject to section 11-551 and subdivision 3. If the
corporation pledges the shares to secure payment of the redemption
price thereof, then the corporation shall not be deemed to have acquired
the shares for the purposes of this subdivision until the pledge is
released. Shares acquired by a corporation constitute authorized but
unissued shares of the corporation, unless the articles provide that
they shall not be reissued, in which case the number of authorized
shares is reduced by the number of shares acquired.
Subdivision
2. Statement of cancellation. If the number of authorized shares
of a corporation is reduced by an acquisition of its shares, the corporation
shall, no later than the time it makes its next annual report to shareholders
or, if no report is made, no later than three months after the end
of the fiscal year in which the acquisition occurs, file with the
Tribal Secretary a statement of cancellation showing the reduction
in the authorized shares. The statement shall contain:
(a)
The name of the corporation;
(b)
The number of acquired shares canceled, itemized by classes and
series; and
(c)
The aggregate number of authorized shares itemized by classes and
series, after giving effect to the cancellation.
Subdivision
3. Limitation on share purchases. A publicly held corporation
shall not, directly or indirectly, purchase or agree to purchase any
shares entitled to vote from a person (or two or more persons who
act as a partnership, limited partnership, syndicate, or other group
pursuant to any written or oral agreement, arrangement, relationship,
understanding, or otherwise for the purpose of acquiring, owning,
or voting shares of the publicly held corporation) who beneficially
owns more than five percent of the voting power of the publicly held
corporation for more than the market value thereof if the shares have
been beneficially owned by the person for less than two years, unless
the purchase or agreement to purchase is approved at a meeting of
shareholders by the affirmative vote of the holders of a majority
of the voting power of all shares entitled to vote or the publicly
held corporation makes an offer, of at least equal value per share,
to all holders of shares of the class or series and to all holders
of any class or series into which the securities may be converted.
For purposes of determining the period that shares have been beneficially
owned by a person:
(1)
shares acquired by the person by gift from a donor are deemed to
have first become beneficially owned by the person when the shares
were acquired by the donor;
(2)
shares acquired by a trust from the settlor of the trust, or shares
acquired from the trust by a beneficiary of the trust, are deemed
to have first become beneficially owned by the trust or the beneficiary
when the shares were acquired by the settlor; and
(3)
shares acquired by an estate or personal representative as a result
of the death or incapacity of a person, or shares acquired from
the estate or personal representative by an heir, devisee, or beneficiary
of the deceased or incapacitated person, are deemed to have first
become beneficially owned by the estate, personal representative,
heir, devisee, or beneficiary when the shares were acquired by the
deceased or incapacitated person. [TCR 94-124]
11-557 LIABILITY OF SHAREHOLDERS FOR ILLEGAL DISTRIBUTIONS.
Subdivision
1. Liability. A shareholder who receives a distribution made
in violation of the provisions of section 11-551 is liable to the
corporation, its receiver or other person winding up its affairs,
or a director under section 11-559, subdivision 2, but only to the
extent that the distribution received by the shareholder exceeded
the amount that properly could have been paid under section 11-551.
Subdivision
2. Statute of limitations. An action shall not be commenced
under this section more than two years from the date of the distribution.
[TCR 94-124]
11-559 LIABILITY OF DIRECTORS FOR ILLEGAL DISTRIBUTIONS.
Subdivision
1. Liability. In addition to any other liabilities, a director
who is present at a meeting and fails to vote against, or who consents
in writing to, a distribution made in violation of section 11-551
or a restriction contained in the articles or bylaws or an agreement,
and who fails to comply with the standard of conduct provided in section
11-251, is liable to the corporation jointly and severally with all
other directors so liable and to other directors under subdivision
3, but only to the extent that the distribution exceeded the amount
that properly could have been paid under section 11-551.
Subdivision
2. Contribution from shareholders. A director against whom
an action is brought under this section with respect to a distribution
may implead in that action all shareholders who received the distribution
and may compel pro-rata contribution from them in that action to the
extent provided in section 11-557, subdivision 1.
Subdivision
3. Impleader, contribution from directors. A director against
whom an action is brought under this section with respect to a distribution
may implead in that action all other directors who voted for or consented
in writing to the distribution and may compel pro-rata contribution
from them in that action.
Subdivision
4. Statute of limitations. An action shall not be commenced
under this section more than two years from the date of the distribution.
[TCR 94-124]
MERGER, EXCHANGE, TRANSFER
| 11-601
Merger, exchange, transfer. |
11-641
Effective date of merger or exchange; effect. |
| 11-611
Plan of merger or exchange. |
11-651
Merger or exchange with foreign corporation. |
| 11-613
Plan approval. |
11-661
Transfer of assets; when permitted. |
| 11-615
Articles of merger or exchange; certificate. |
|
| 11-621
Merger of subsidiary. |
|
|
11-631
Abandonment.
|
|
11-601 MERGER, EXCHANGE, TRANSFER.
Subdivision
1. Merger. Any two or more corporations may merge, resulting
in a single corporation, with or without a business purpose, pursuant
to a plan of merger approved in the manner provided in sections 11-611
to 11-651.
Subdivision
2. Exchange. A corporation may acquire all of the outstanding
shares of one or more classes or series of another corporation pursuant
to a plan of exchange approved in the manner provided in sections
11-611 to 11-615, and 11-631 to 11-651.
Subdivision
3. Transfer. A corporation may sell, lease, transfer, or otherwise
dispose of all or substantially all of its property and assets in
the manner provided in section 11-661.
Subdivision
4. Reserved. [TCR 94-124]
11-611 PLAN OF MERGER OR EXCHANGE.
Subdivision
1. Contents of plan. A plan of merger or exchange shall contain:
(a)
The names of the corporations proposing to merge or participate
in an exchange, and:
(1)
in the case of a merger, the name of the surviving corporation;
(2)
in the case of an exchange, the name of the acquiring corporation;
(b)
The terms and conditions of the proposed merger or exchange;
(c)
(1) In the case of a merger, the manner and basis of converting
the shares of the constituent corporations into securities of the
surviving corporation or of any other corporation, or, in whole
or in part, into money or other property; or
(2)
In the case of an exchange, the manner and basis of exchanging
the shares to be acquired for securities of the acquiring corporation
or any other corporation or, in whole or part, into money or other
property;
(d)
In the case of a merger, a statement of any amendments to the articles
of the surviving corporation proposed as part of the merger; and
(e)
Any other provisions with respect to the proposed merger or exchange
that are deemed necessary or desirable.
Subdivision
2. Other agreements. The procedure authorized by this section
does not limit the power of a corporation to acquire all or part of
the shares of one or more classes or series of another corporation
through a negotiated agreement with the shareholders or otherwise.
[TCR 94-124]
11-613 PLAN APPROVAL.
Subdivision
1. Board approval; notice to shareholders. A resolution containing
the plan of merger or exchange shall be approved by the affirmative
vote of a majority of the directors present at a meeting of the board
of each constituent corporation and shall then be submitted at a regular
or a special meeting to the shareholders of (i) each constituent corporation,
in the case of a plan of merger, and (ii) the corporation whose shares
will be acquired by the acquiring corporation in the exchange, in
the case of a plan of exchange. If shareholders holding any class
or series of stock of the corporation are entitled to vote on the
plan of merger or exchange pursuant to this section, written notice
shall be given to every shareholder of a corporation, whether or not
entitled to vote at the meeting, not less than 14 days nor more than
60 days before the meeting, in the manner provided in section 11-435
for notice of meetings of shareholders. The written notice shall state
that a purpose of the meeting is to consider the proposed plan of
merger or exchange. A copy or short description of the plan of merger
or exchange shall be included in or enclosed with the notice.
Subdivision
2. Approval by shareholders. (a) At the meeting a vote of the
shareholders shall be taken on the proposed plan. The plan of merger
or exchange is adopted when approved by the affirmative vote of the
holders of a majority of the voting power of all shares entitled to
vote. Except as provided in paragraph (b), a class or series of shares
of the corporation is entitled to vote as a class or series if any
provision of the plan would, if contained in a proposed amendment
to the articles, entitle the class or series of shares to vote as
a class or series and, in the case of an exchange, if the class or
series is included in the exchange.
(b)
A class or series of shares of the corporation is not entitled to
vote as a class or series solely because the plan of merger or exchange
effects a cancellation of the shares of the class or series if the
plan of merger or exchange effects a cancellation of all shares
of the corporation of all classes and series that are outstanding
immediately prior to the merger or exchange and shareholders of
shares of that class or series are entitled to obtain payment for
the fair value of their shares under section 11-471 in the event
of the merger or exchange.
Subdivision
3. When approval by shareholders not required. Notwithstanding
the provisions of subdivisions 1 and 2, submission of a plan of merger
to a vote at a meeting of shareholders of a surviving corporation
is not required if:
(a)
The articles of the corporation will not be amended in the transaction;
(b)
Each holder of shares of the corporation that were outstanding immediately
before the effective date of the transaction will hold the same
number of shares with identical rights immediately thereafter;
(c)
The number of shares of the corporation entitled to vote immediately
after the merger, plus the number of shares of the corporation entitled
to vote issuable on conversion of securities other than shares or
on the exercise of rights to purchase securities issued by virtue
of the terms of the transaction, will not exceed by more than 20
percent, the number of shares of the corporation entitled to vote
immediately before the transaction; and
(d)
The number of participating shares of the corporation immediately
after the merger, plus the number of participating shares of the
corporation issuable on conversion, or on the exercise of rights
to purchase, securities issued in the transaction, will not exceed
by more than 20 percent, the number of participating shares of the
corporation immediately before the transaction. "Participating
shares" are outstanding shares of the corporation that entitle
their holders to participate without limitation in distributions
by the corporation. [TCR 94-124]
11-615 ARTICLES OF MERGER OR EXCHANGE; CERTIFICATE.
Subdivision
1. Contents of articles. Upon receiving the approval required
by section 11-613, articles of merger or exchange shall be prepared
that contain:
(a)
The plan of merger or exchange; and
(b)
A statement that the plan has been approved by each corporation
pursuant to this Code.
Subdivision
2. Articles signed, filed. The articles of merger or exchange
shall be signed on behalf of each constituent corporation and filed
with the Tribal Secretary.
Subdivision
3. Certificate. The Tribal Secretary shall issue a certificate
of merger to the surviving corporation or its legal representative
and a certificate of exchange to the acquiring corporation or its
legal representative. [TCR 94-124]
11-621 MERGER OF SUBSIDIARY.
Subdivision
1. When authorized; contents of plan. A parent owning at least
90 percent of the outstanding shares of each class and series of a
subsidiary directly, or indirectly through related corporations, may
merge the subsidiary into itself or into any other subsidiary at least
90 percent of the outstanding shares of each class and series of which
is owned by the parent directly, or indirectly through related corporations,
without a vote of the shareholders of itself or any subsidiary or
may merge itself, or itself and one or more of the subsidiaries, into
one of the subsidiaries under this section. A resolution approved
by the affirmative vote of a majority of the directors of the parent
present shall set forth a plan of merger that contains:
(a)
The name of the subsidiary or subsidiaries, the name of the parent
and the name of the surviving corporation;
(b)
The manner and basis of converting the shares of the subsidiary
or subsidiaries or parent into securities of the parent, subsidiary,
or of another corporation or, in whole or in part, into money or
other property;
(c)
If the parent is a constituent corporation but is not the surviving
corporation in the merger, a provision for the pro-rata issuance
of shares of the surviving corporation to the holders of shares
of the parent on surrender of any certificates for shares of the
parent; and
(d)
If the surviving corporation is a subsidiary, a statement of any
amendments to the articles of the surviving corporation that will
be part of the merger.
If the
parent is a constituent corporation but is not the surviving corporation
in the merger, the resolution is not effective unless it is also approved
by the affirmative vote of the holders of a majority of the voting
power of all shares of the parent entitled to vote at a regular or
special meeting held in accordance with section 11-613 if the parent
is a tribal corporation or in accordance with the laws under which
it is incorporated if the parent is a foreign corporation.
Subdivision
2. Notice to shareholders of subsidiary. A copy of the plan
of merger shall be mailed to each shareholder, other than the parent
and any subsidiary, of each subsidiary that is a constituent corporation
in the merger.
Subdivision
3. Articles of merger, contents of articles. Articles of merger
shall be prepared that contain:
(a)
The plan of merger;
(b)
The number of outstanding shares of each class and series of each
subsidiary that is a constituent corporation in the merger and the
number of shares of each class and series of the subsidiary or subsidiaries
owned by the parent directly, or indirectly through related corporations;
(c)
The date a copy of the plan of merger was mailed to shareholders,
other than the parent or a subsidiary, of each subsidiary that is
a constituent corporation in the merger; and
(d)
A statement that the plan of merger has been approved by the parent
under this section.
Subdivision
4. Articles signed, filed. Within 30 days after a copy of the
plan of merger is mailed to shareholders of each subsidiary that is
a constituent corporation to the merger, or upon waiver of the mailing
by the holders of all outstanding shares of each subsidiary that is
a constituent corporation to the merger, the articles of merger shall
be signed on behalf of the parent and filed with the Tribal Secretary.
Subdivision
5. Certificate. The Tribal Secretary shall issue a certificate
of merger to the parent or its legal representative or, if the parent
is a constituent corporation but is not the surviving corporation
in the merger, to the surviving corporation or its legal representative.
Subdivision
6. Rights of dissenting shareholders. In the event all of the
stock of one or more tribal subsidiaries of the parent that is a constituent
party to a merger under this section is not owned by the parent directly,
or indirectly through related corporations, immediately prior to the
merger, the shareholders of each tribal subsidiary have dissenter's
rights under section 11-471, without regard to sections 11-471, subdivision
3, and 11-473. If the parent is a constituent corporation but is not
the surviving corporation in the merger, and the articles of incorporation
of the surviving corporation immediately after the merger differ from
the articles of incorporation of the parent immediately prior to the
merger in a manner that would entitle a shareholder of the parent
to dissenter's rights under section 11-471, subdivision 1, paragraph
(a), if the articles of incorporation of the surviving corporation
constituted an amendment to the articles of incorporation of the parent,
that shareholder of the parent has dissenter's rights as provided
under sections 11-471 and 11-473. Except as provided in this subdivision,
sections 11-471 and 11-473 do not apply to any merger effected under
this section.
Subdivision
7. Nonexclusivity. A merger among a parent and one or more
subsidiaries or among two or more subsidiaries of a parent may be
accomplished under sections 11-611, 11-613, and 11-615 instead of
this section, in which case this section does not apply. [TCR 94-124]
11-631 ABANDONMENT.
Subdivision
1. By shareholders or plan. After a plan of merger or exchange
has been approved by the shareholders entitled to vote on the approval
of the plan as provided in section 11-613, and before the effective
date of the plan, it may be abandoned:
(a)
If the shareholders of each of the constituent corporations entitled
to vote on the approval of the plan as provided in section 11-613
have approved the abandonment at a meeting by the affirmative vote
of the holders of a majority of the voting power of the shares entitled
to vote and, if the shareholders of a constituent corporation are
not entitled to vote on the approval of the plan under section 11-613,
the board of directors of the constituent corporation has approved
the abandonment by the affirmative vote of a majority of the directors
present;
(b)
If the plan itself provides for abandonment and all conditions for
abandonment set forth in the plan are met; or
(c)
Pursuant to subdivision 2.
Subdivision
2. By board. A plan of merger or exchange may be abandoned,
before the effective date of the plan, by a resolution of the board
of directors of any constituent corporation abandoning the plan of
merger or exchange approved by the affirmative vote of a majority
of the directors present, subject to the contract rights of any other
person under the plan.
Subdivision
3. Filing of articles. If articles of merger or exchange have
been filed with the Tribal Secretary, but have not yet become effective,
the constituent corporations, in the case of abandonment under subdivision
1, clause (a), the constituent corporations or any one of them, in
the case of abandonment under subdivision 1, clause (b), or the abandoning
corporation in the case of abandonment under subdivision 2, shall
file with the Tribal Secretary articles of abandonment that contain:
(a)
The names of the constituent corporations;
(b)
The provision of this section under which the plan is abandoned;
and
(c)
If the plan is abandoned under subdivision 2, the text of the resolution
approved by the affirmative vote of a majority of the directors
present abandoning the plan. [TCR 94-124]
11-641 EFFECTIVE DATE OF MERGER OR EXCHANGE; EFFECT.
Subdivision
1. Effective date. A merger or exchange is effective when the
articles of merger or exchange are filed with the Tribal Secretary
or on a later date specified in the articles of merger or exchange.
Subdivision
2. Effect on corporation. When a merger becomes effective:
(a)
The constituent corporations become a single corporation, the surviving
corporation;
(b)
The separate existence of all constituent corporations except the
surviving corporation ceases;
(c)
The surviving corporation has all the rights, privileges, immunities,
and powers, and is subject to all the duties and liabilities, of
a corporation incorporated under this Code;
(d)
The surviving corporation possesses all the rights, privileges,
immunities, and franchises, of a public as well as of a private
nature, of each of the constituent corporations. All property, real,
personal, and mixed, and all debts due on any account, including
subscriptions to shares, and all other choses in action, and every
other interest of or belonging to or due to each of the constituent
corporations vests in the surviving corporation without any further
act or deed. Confirmatory deeds, assignments, or similar instruments
to accomplish that vesting may be signed and delivered at any time
in the name of a constituent corporation by its current officers
or, if the corporation no longer exists, by its last officers. The
title to any real estate or any interest therein vested in any of
the constituent corporations does not revert nor in any way become
impaired by reason of the merger;
(e)
The surviving corporation is responsible and liable for all the
liabilities and obligations of each of the constituent corporations.
A claim of or against or a pending proceeding by or against a constituent
corporation may be prosecuted as if the merger had not taken place,
or the surviving corporation may be substituted in the place of
the constituent corporation. Neither the rights of creditors nor
any liens upon the property of a constituent corporation are impaired
by the merger; and
(f)
The articles of the surviving corporation are deemed to be amended
to the extent that changes in its articles, if any, are contained
in the plan of merger.
Subdivision
3. Effect on shareholders. When a merger or exchange becomes
effective, the shares of the corporation or corporations to be converted
or exchanged under the terms of the plan cease to exist in the case
of a merger, or are deemed to be exchanged in the case of an exchange.
The holders of those shares are entitled only to the securities money,
or other property into which those shares have been converted or for
which those shares have been exchanged in accordance with the plan,
subject to any dissenter's rights under section 11-471. [TCR 94-124]
11-651 MERGER OR EXCHANGE WITH FOREIGN CORPORATION.
Subdivision
1. When permitted. A tribal corporation may merge with or participate
in an exchange with a foreign corporation by following the procedures
set forth in this section, if:
(1)
with respect to a merger, the merger is permitted by the laws of
the jurisdiction under which the foreign corporation is incorporated;
and
(2)
with respect to an exchange, the corporation whose shares will be
acquired is a tribal corporation, whether or not the exchange is
permitted by the laws of the jurisdiction under which the foreign
corporation is incorporated.
Subdivision
2. Laws applicable before transaction. Each tribal corporation
shall comply with the provisions of sections 11-601 to 11-651 with
respect to the merger or exchange of shares of corporations and each
foreign corporation shall comply with the applicable provisions of
the laws under which it was incorporated or by which it is governed.
Subdivision
3. Tribal surviving corporation. If the surviving corporation
in a merger will be a tribal corporation, it shall comply with all
the provisions of this Code.
Subdivision
4. Foreign surviving corporation. If the surviving corporation
in a merger will be a foreign corporation and will transact business
on the Reservation, it shall comply with any laws of the Tribe regarding
qualification by a foreign corporation to do business on the Reservation.
In every case the surviving corporation shall file with the Tribal
Secretary:
(a)
An agreement that it may be served with process on the Reservation
in a proceeding for the enforcement of an obligation of a constituent
corporation and in a proceeding for the enforcement of the rights
of a dissenting shareholder of a constituent corporation against
the surviving corporation;
(b)
An irrevocable appointment of the Tribal Secretary as its agent
to accept service of process in any proceeding, and an address to
which process may be forwarded; and
(c)
An agreement that it will promptly pay to the dissenting shareholders
of each tribal constituent corporation the amount, if any, to which
they are entitled under section 11-473. [TCR 94-124]
11-661 TRANSFER OF ASSETS; WHEN PERMITTED.
Subdivision
1. Shareholder approval; when not required. A corporation,
by affirmative vote of a majority of the directors present, may sell,
lease, transfer, or otherwise dispose of all or substantially all
of its property and assets in the usual and regular course of its
business and grant a security interest in all or substantially all
of its property and assets whether or not in the usual and regular
course of its business, upon those terms and conditions and for those
considerations, which may be money, securities, or other instruments
for the payment of money or other property, as the board deems expedient,
in which case no shareholder approval is required.
Subdivision
2. Shareholder approval; when required. A corporation, by affirmative
vote of a majority of the directors present, may sell, lease, transfer,
or otherwise dispose of all or substantially all of its property and
assets, including its good will, not in the usual and regular course
of its business, upon those terms and conditions and for those considerations,
which may be money, securities, or other instruments for the payment
of money or other property, as the board deems expedient, when approved
at a regular or special meeting of the shareholders by the affirmative
vote of the holders of a majority of the voting power of the shares
entitled to vote. Written notice of the meeting shall be given to
all shareholders whether or not they are entitled to vote at the meeting.
The written notice shall state that a purpose of the meeting is to
consider the sale, lease, transfer, or other disposition of all or
substantially all of the property and assets of the corporation.
Subdivision
3. Signing of documents. Confirmatory deeds, assignments, or
similar instruments to evidence a sale, lease, transfer, or other
disposition may be signed and delivered at any time in the name of
the transferor by its current officers or, if the corporation no longer
exists, by its last officers.
Subdivision
4. Transferee liability. The transferee is liable for the debts,
obligations, and liabilities of the transferor only to the extent
provided in the contract or agreement between the transferee and the
transferor or to the extent provided by this Code or other laws of
the Tribe. [TCR 94-124]
DISSOLUTION
| 11-701
Methods of dissolution. |
11-753
Procedure in involuntary or supervised voluntary dissolution. |
| 11-711
Voluntary dissolution by incorporators. |
11-755
Qualifications of receivers; powers. |
| 11-721
Voluntary dissolution by shareholders. |
11-757
Action by Tribal Council. |
| 11-723
Filing notice of intent to dissolve; effect. |
11-759
Filing claims in proceedings to dissolve. |
| 11-725
Procedure in dissolution. |
11-761
Discontinuance of dissolution proceedings. |
| 11-727
Dissolution procedure for corporations that give notice to creditors
and claimants. |
11-763
Decree of dissolution. |
| 11-7291
Dissolution procedure for corporation that do not give notice. |
11-765
Filing decree. |
| 11-731
Revocation of dissolution proceedings |
11-771
Deposit with Tribal Treasurer of amount due certain shareholders. |
| 11-734
Effective date of dissolution; certificate. |
11-781
Claims barred; exceptions. |
| 11-741
Supervised voluntary dissolution. |
11-783
Right to sue or defend after dissolution. |
|
11-751
Judicial intervention; equitable remedies or dissolution.
|
11-791
Omitted assets. |
11-701 METHODS OF DISSOLUTION.
A corporation
may be dissolved:
(a) By
the incorporators pursuant to section 11-711;
(b) By
the shareholders pursuant to sections 11-721 to 11-7291; or
(c) By
order of the court pursuant to sections 11-741 to 11-765. [TCR 94-124]
11-711 VOLUNTARY DISSOLUTION BY INCORPORATORS.
Subdivision
1. Manner. A corporation that has not issued shares may be
dissolved by the incorporators in the manner set forth in this section.
Subdivision
2. Articles of dissolution. (a) A majority of the incorporators
shall sign articles of dissolution containing:
(1)
The name of the corporation;
(2)
The date of incorporation;
(3)
A statement that shares have not been issued;
(4)
A statement that all consideration received from subscribers for
shares to be issued, less expenses incurred in the organization
of the corporation, has been returned to the subscribers; and
(5)
A statement that no debts remain unpaid.
(b)
The articles of dissolution shall be filed with the Tribal Secretary.
Subdivision
3. Effective date. When the articles of dissolution have been
filed with the Tribal Secretary, the corporation is dissolved.
Subdivision
4. Certificate. The Tribal Secretary shall issue to the dissolved
corporation or its legal representative a certificate of dissolution
that contains:
(a)
The name of the corporation;
(b)
The date and time the articles of dissolution were filed with the
Tribal Secretary; and
(c)
A statement that the corporation is dissolved. [TCR 94-124]
11-721 VOLUNTARY DISSOLUTION BY SHAREHOLDERS.
Subdivision
1. Manner. A corporation may be dissolved by the shareholders
when authorized in the manner set forth in this section.
Subdivision
2. Notice; approval. (a) Written notice shall be given to each
shareholder, whether or not entitled to vote at a meeting of shareholders,
within the time and in the manner provided in section 11-435 for notice
of meetings of shareholders and whether the meeting is a regular or
a special meeting, shall state that a purpose of the meeting is to
consider dissolving the corporation.
(b)
The proposed dissolution shall be submitted for approval at a meeting
of shareholders. If the proposed dissolution is approved at a meeting
by the affirmative vote of the holders of a majority of the voting
power of all shares entitled to vote, the dissolution shall be commenced.
[TCR 94-124]
11-723 FILING NOTICE OF INTENT TO DISSOLVE; EFFECT.
Subdivision
1. Contents. If dissolution of the corporation is approved
pursuant to section 11-721, subdivision 2, the corporation shall file
with the Tribal Secretary a notice of intent to dissolve. The notice
shall contain:
(a)
The name of the corporation;
(b)
The date and place of the meeting at which the resolution was approved
pursuant to section 11-721, subdivision 2; and
(c)
A statement that the requisite vote of the shareholders was received,
or that all shareholders entitled to vote signed a written action.
Subdivision
2. Winding up. When the notice of intent to dissolve has been
filed with the Tribal Secretary, and subject to section 11-731, the
corporation shall cease to carry on its business, except to the extent
necessary for the winding up of the corporation. The shareholders
shall retain the right to revoke the dissolution proceedings in accordance
with section 11-731 and the right to remove directors or fill vacancies
on the board. The corporate existence continues to the extent necessary
to wind up the affairs of the corporation until the dissolution proceedings
are revoked or articles of dissolution are filed with the Tribal Secretary.
Subdivision
3. Remedies continued. The filing with the Tribal Secretary
of a notice of intent to dissolve does not affect any remedy in favor
of the corporation or any remedy against it or its directors, officers,
or shareholders in those capacities, except as provided in sections
11-727, 11-7291, and 11-781. [TCR 94-124]
11-727 DISSOLUTION PROCEDURE FOR CORPORATIONS THAT GIVE NOTICE TO
CREDITORS AND CLAIMANTS.
Subdivision
1. When permitted; how given. When a notice of intent to dissolve
has been filed with the Tribal Secretary, the corporation may give
notice of the filing to each creditor of and claimant against the
corporation known or unknown, present or future, and contingent or
noncontingent. If notice to creditors and claimants is given, it must
be given by publishing the notice once each week for four successive
weeks in a legal newspaper on the Reservation and by giving written
notice to known creditors and claimants.
Subdivision
2. Contents. The notice to creditors and claimants shall contain:
(a)
A statement that the corporation is in the process of dissolving;
(b)
A statement that the corporation has filed with the Tribal Secretary
a notice of intent to dissolve;
(c)
The date of filing the notice of intent to dissolve;
(d)
The address of the office to which written claims against the corporation
must be presented; and
(e)
The date by which all the claims must be received, which shall be
the later of 90 days after published notice or, with respect to
a particular known creditor or claimant, 90 days after the date
on which written notice was given to that creditor or claimant.
Published notice is deemed given on the date of first publication
for the purpose of determining this date.
Subdivision
3. Claims against corporations that give notice. (a) A corporation
that gives notice to creditors and claimants has 30 days from the
receipt of each claim filed according to the procedures set forth
by the corporation on or before the date set forth in the notice to
accept or reject the claim by giving written notice to the person
submitting it. A claim not expressly rejected in this manner is deemed
accepted.
(b)
A creditor or claimant to whom notice is given and whose claim is
rejected by the corporation has 60 days from the date of rejection,
180 days from the date the corporation filed with the Tribal Secretary
the notice of intent to dissolve, or 90 days after the date on which
notice was given to the creditor or claimant, whichever is longer,
to pursue any other remedies with respect to the claim.
(c)
A creditor or claimant to whom notice is given who fails to file
a claim according to the procedures set forth by the corporation
on or before the date set forth in the notice is barred from suing
on that claim or otherwise realizing upon or enforcing it, except
as provided in section 11-781.
(d)
A creditor or claimant whose claim is rejected by the corporation
under paragraph (b) is barred from suing on that claim or otherwise
realizing upon or enforcing it, if the creditor or claimant does
not initiate legal, administrative, or arbitration proceedings with
respect to the claim within the time provided n paragraph (b).
Subdivision
4. Articles of dissolution; when filed. Articles of dissolution
for a corporation that has given notice to creditors and claimants
under this section must be filed with the Tribal Secretary after:
(1)
the 90-day period in subdivision 2, paragraph (e), has expired and
the payment of claims of all creditors and claimants filing a claim
within that period has been made or provided for; or
(2)
the longest of the periods described in subdivision 3, paragraph
(b), has expired and there are no pending legal, administrative,
or arbitration proceedings by or against the corporation commenced
within the time provided in subdivision 3, paragraph (b).
Subdivision
5. Contents of articles. The articles of dissolution must state:
(1)
the last date on which the notice was given and: (i) that the payment
of all creditors and claimants filing a claim within the 90-day
period in subdivision 2, paragraph (e), has been made or provided
for; or (ii) the date on which the longest of the periods described
in subdivision 3, paragraph (b), expired;
(2)
that the remaining property, assets, and claims of the corporation
have been distributed among its shareholders in accordance with
section 11-551, subdivision 4, or that adequate provision has been
made for that distribution; and
(3)
that there are no pending legal, administrative, or arbitration
proceedings by or against the corporation commenced within the time
provided in subdivision 3, paragraph (b), or that adequate provision
has been made for the satisfaction of any judgment, order, or decree
that may be entered against it in a pending proceeding. [TCR 94-124]
11-7291 DISSOLUTION PROCEDURE FOR CORPORATIONS THAT DO NOT GIVE NOTICE.
Subdivision
1 . Articles of dissolution; when filed. Articles of dissolution
for a corporation that has not given notice to creditors and claimants
in the manner provided in section 11-727 must be filed with the Tribal
Secretary after:
(1)
the payment of claims of all known creditors and claimants has been
made or provided for; or
(2)
at least two years have elapsed from the date of filing the notice
of intent to dissolve.
Subdivision
2. Contents of articles. The articles of dissolution must state:
(1)
if articles of dissolution are being filed pursuant to subdivision
1, clause (1), that all known debts, obligations, and liabilities
of the corporation have been paid and discharged or that adequate
provision has been made for payment or discharge;
(2)
that the remaining property, assets, and claims of the corporation
have been distributed among its shareholders in accordance with
section 11-551, subdivision 4, or that adequate provision has been
made for that distribution; and
(3)
that there are no pending legal, administrative, or arbitration
proceedings by or against the corporation, or that adequate provision
has been made for the satisfaction of any judgment, order, or decree
that may be entered against it in a pending proceeding.
Subdivision
3. Claims against corporations that do not give notice. (a)
If the corporation has paid or provided for all known creditors or
claimants at the time articles of dissolution are filed. A creditor
or claimant who does not file a claim or pursue a remedy in a legal,
administrative, or arbitration proceeding within two years after the
date of filing the notice of intent to dissolve is barred from suing
on that claim or otherwise realizing upon or enforcing it.
(b)
If the corporation has not paid or provided for all known creditors
and claimants at the time articles of dissolution are filed, a person
who does not file a claim or pursue a remedy in a legal, administrative,
or arbitration proceeding within two years after the date of filing
the notice of intent to dissolve is barred from suing on that claim
or otherwise realizing upon or enforcing it, except as provided
in section 11-781. [TCR 94-124]
11-731 REVOCATION OF DISSOLUTION PROCEEDINGS.
Subdivision
1. Generally. Dissolution proceedings commenced pursuant to
section 11-721 may be revoked prior to filing of articles of dissolution.
Subdivision
2. Notice to shareholders; approval. Written notice shall be
given to every shareholder entitled to vote at a shareholder's meeting
within the time and in the manner provided in section 11-435 for notice
of meetings of shareholders and shall state that a purpose of the
meeting is to consider the advisability of revoking the dissolution
proceedings. The proposed revocation shall be submitted to the shareholders
at the meeting. If the proposed revocation is approved at a meeting
by the affirmative vote of the holders of a majority of the voting
power of all shares entitled to vote, the dissolution proceedings
are revoked.
Subdivision
3. Effective date; effect. Revocation of dissolution proceedings
is effective when a notice of revocation is filed with the Tribal
Secretary. The corporation may thereafter resume business. [TCR 94-124]
11-734 EFFECTIVE DATE OF DISSOLUTION; CERTIFICATE.
Subdivision
1. Effective date. When the articles of dissolution have been
filed with the Tribal Secretary, the corporation is dissolved.
Subdivision
2. Certificate. The Tribal Secretary shall issue to the dissolved
corporation or its legal representative a certificate of dissolution
that contains:
(1)
the name of the corporation;
(2)
the date and time the articles of dissolution were filed with the
Tribal Secretary; and
(3)
a statement that the corporation is dissolved. [TCR 94-124]
11-741 SUPERVISED VOLUNTARY DISSOLUTION.
After the
notice of intent to dissolve has been filed with the Tribal Secretary
and before a certificate of dissolution has been issued, the corporation
or, for good cause shown, a shareholder or creditor may apply to the
court to have the dissolution conducted or continued under the supervision
of the court as provided in sections 11-751 to 11-781. [TCR 94-124]
11-751 JUDICIAL INTERVENTION; EQUITABLE REMEDIES OR DISSOLUTION.
Subdivision
1. When permitted. The court may grant any equitable relief
it deems just and reasonable in the circumstances or may dissolve
a corporation and liquidate its assets and business:
(a)
In a supervised voluntary dissolution pursuant to section 11-741;
(b)
In an action by a shareholder when it is established that:
(1)
the directors or the persons having the authority otherwise vested
in the board are deadlocked in the management of the corporate
affairs and the shareholders are unable to break the deadlock;
(2)
the directors or those in control of the corporation have acted
fraudulently, illegally, or in a manner unfairly prejudicial toward
one or more shareholders in their capacities as shareholders,
directors, or officers, or as employees of a closely held corporation;
(3)
the shareholders of the corporation are so divided in voting power
that, for a period that includes the time when two consecutive
regular meetings were held, they have failed to elect successors
to directors whose terms have expired or would have expired upon
the election and qualification of their successors;
(4)
the corporate assets are being misapplied or wasted; or
(5)
the period of duration as provided in the articles has expired
and has not been extended as provided in section 11-801;
(c)
In an action by a creditor when:
(1)
the claim of the creditor has been reduced to judgment and an
execution thereon has been returned unsatisfied; or
(2)
the corporation has admitted in writing that the corporation is
unable to pay its debts in the ordinary course of business; or
(d)
In an action by the Tribal Council to dissolve the corporation in
accordance with section 11-757 when it is established that a decree
of dissolution is appropriate.
Subdivision
2. Buy-out on motion. In an action under subdivision 1, clause
(b), involving a closely held corporation at the time the action is
commenced and in which one or more of the circumstances described
in that clause is established, the court may, upon motion of a corporation
or a shareholder or beneficial owner of shares of the corporation,
order the sale by a plaintiff or a defendant of all shares of the
corporation held by the plaintiff or defendant to either the corporation
or the moving shareholders, whichever is specified in the motion,
if the court determines in its discretion that an order would be fair
and equitable to all parties under all of the circumstances of the
case.
Within
five days after the entry of the order, the corporation shall provide
each selling shareholder or beneficial owner with the information
it is required to provide under section 11-473, subdivision 5, paragraph
(a).
If the
parties are unable to agree on fair value within 40 days of entry
of the order, the court shall determine the fair value of the shares
under the provisions of section 11-473, subdivision 7, and may allow
interest or costs as provided in section 11-473, subdivisions 1 and
8.
The purchase
price shall be paid in one or more installments as agreed on by the
parties, or, if no agreement can be reached within 40 days of entry
of the order, as ordered by the court. Upon entry of an order for
the sale of shares under this subdivision and provided that the corporation
or the moving shareholders post a bond in adequate amount with sufficient
sureties or otherwise satisfy the court that the full purchase price
of the shares, plus such additional costs, expenses, and fees as may
be awarded will be paid when due and payable, the selling shareholders
shall no longer have any rights or status as shareholders, officers,
or directors, except the right to receive the fair value of their
shares plus such other amounts as might be awarded.
Subdivision
3. Condition of corporation. In determining whether to order
equitable relief, dissolution, or a buyout, the court shall take into
consideration the financial condition of the corporation but shall
not refuse to order equitable relief, dissolution, or a buyout solely
on the ground that the corporation has accumulated or current operating
profits.
Subdivision
4. Considerations in granting relief involving closely held corporations.
In determining whether to order equitable relief, dissolution, or
a buyout, the court shall take into consideration the duty which all
shareholders in a closely held corporation owe one another to act
in an honest, fair, and reasonable manner in the operation of the
corporation and the reasonable expectations of the shareholders as
they exist at the inception and develop during the course of the shareholder's
relationship with the corporation and with each other.
Subdivision
5. Dissolution as remedy. In deciding whether to order dissolution,
the court shall consider whether lesser relief suggested by one or
more parties, such as any form of equitable relief, a buyout, or a
partial liquidation, would be adequate to permanently relieve the
circumstances established under subdivision 1, clause (b) or (c).
Lesser relief may be ordered in any case where it would be appropriate
under all the facts and circumstances of the case.
Subdivision
6. Expenses. If the court finds that a party to a proceeding
brought under this section has acted arbitrarily, vexatiously, or
otherwise not in good faith, it may in its discretion award reasonable
expenses, including attorney's\ fees and disbursements, to any of
the other parties.
Subdivision
7. Venue; parties. Proceedings under this section shall be
brought in the court. It is not necessary to make shareholders parties
to the action or proceeding unless relief is sought against them personally.
[TCR 94-124]
11-753 PROCEDURE IN INVOLUNTARY OR SUPERVISED VOLUNTARY DISSOLUTION.
Subdivision
1. Action before hearing. In dissolution proceedings the court
may issue injunctions, appoint receivers with all powers and duties
the court directs, take other actions required to preserve the corporate
assets wherever situated, and carry on the business of the corporation
until a full hearing can be held.
Subdivision
2. Action after hearing. After a full hearing has been held,
upon whatever notice the court directs 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 receiver to collect the corporate
assets, including all amounts owing to the corporation by subscribers
on account of any unpaid portion of the consideration for the issuance
of shares. A receiver has authority, subject to the order of the court,
to continue the business of the corporation and to sell, lease, transfer,
or otherwise dispose of all or any of the property and assets of the
corporation either at public or private sale.
Subdivision
3. Discharge of obligations. The assets of the corporation
or the proceeds resulting from a sale, lease, transfer, or other disposition
shall be applied in the following order of priority to the payment
and discharge or:
(a)
The costs and expenses of the proceedings, including attorney's
fees and disbursements;
(b)
Debts, taxes and assessments due the Tribe, its subdivisions, the
United States, states and their subdivisions, and other tribes and
their subdivisions, in that order;
(c)
Claims duly proved and allowed to employees under the provisions
of any applicable worker's compensation act; provided, that claims
under this clause shall not be allowed if the corporation carried
worker's compensation insurance, as provided by law, at the time
the injury was sustained;
(d)
Claims, including the value of all compensation paid in any medium
other than money, duly proved and allowed to employees for services
performed within three months preceding the appointment of the receiver,
if any; and
(e)
other claims duly proved and allowed.
Subdivision
4. Remainder to shareholders. After payment of the expenses
of receivership and claims of creditors duly proved, the remaining
assets, if any, shall be distributed to the shareholders in accordance
with section 11-551, subdivision 4. [TCR 94-124]
11-755 QUALIFICATIONS OF RECEIVERS; POWERS.
Subdivision
1. Qualifications. A receiver shall be a natural person or
a tribal corporation or a foreign corporation authorized to transact
business on the Reservation. A receiver shall give bond as directed
by the court with the sureties required by the court.
Subdivision
2. Powers. A receiver may sue and defend in the court as receiver
of the corporation. The court appointing the receiver has exclusive
jurisdiction of the corporation and its property. [TCR 94-124]
11-757 ACTION BY TRIBAL COUNCIL.
Subdivision
1. When permitted. A corporation may be dissolved involuntarily
by a decree of the court in an action filed by the Tribal Council
when it is established that:
(a)
The articles and certificate of incorporation were procured through
fraud;
(b)
The corporation was incorporated for a purpose not permitted by
section 11-101;
(c)
The corporation failed to comply with the requirements of sections
11-021 to 11-155 essential to incorporation under or election to
become governed by this Code;
(d)
The corporation has flagrantly violated a provision of this Code,
or has violated a provision of this Code more than once, or has
violated more than one provision of this Code; or
(e)
The corporation has acted, or failed to act, in a manner that constitutes
surrender or abandonment of the corporate franchise, privileges,
or enterprise.
Subdivision
2. Notice to corporation; correction. An action shall not be
commenced under this section until 30 days after notice to the corporation
by the Tribal Council of the reason for the filing of the action.
If the reason for filing the action is an act that the corporation
has done, or omitted to do, and the act or omission may be corrected
by an amendment of the articles or bylaws or by performance of or
abstention from the act, the Tribal Council shall give the corporation
30 additional days in which to effect the correction before filing
the action.
11-759 FILING CLAIMS IN PROCEEDINGS TO DISSOLVE.
Subdivision
1. In proceedings referred to in section 11-751 to dissolve a corporation,
the court may require all creditors and claimants of the corporation
to file their claims under oath with the Tribal Secretary or with
the receiver in a form prescribed by the court.
Subdivision
2. If the court requires the filing of claims, it shall fix a date,
which shall be not less than 120 days from the date of the order,
as the last day for the filing of claims, and shall prescribe the
notice of the fixed date that shall be given to creditors and claimants.
Before the fixed date, the court may extend the time for filing claims.
Creditors and claimants failing to file claims on or before the fixed
date may be barred, by order of court, from claiming an interest in
or receiving payment out of the property or assets of the corporation.
[TCR 94-124]
11-761 DISCONTINUANCE OF DISSOLUTION PROCEEDINGS.
The involuntary
or supervised voluntary dissolution of a corporation shall be discontinued
at any time during the dissolution proceedings when it is established
that cause for dissolution no longer exists. When this is established,
the court shall dismiss the proceedings and direct the receiver, if
any, to redeliver to the corporation all its remaining property and
assets. [TCR 94-124]
11-763 DECREE OF DISSOLUTION.
Subdivision
1. When entered. In an involuntary or supervised voluntary
dissolution after the costs and expenses of the proceedings and all
debts, obligations, and liabilities of the corporation have been paid
or discharged and all of its remaining property and assets have been
distributed to its shareholders or, if its property and assets are
not sufficient to satisfy and discharge the costs, expenses, debts,
obligations, and liabilities, when all the property and assets have
been applied so far as they will go to their payment according to
the priorities set forth in section 11-753, the court shall enter
a decree dissolving the corporation.
Subdivision
2. Effective date. When the decree dissolving the corporation
has been entered, the corporation is dissolved. [TCR 94-124]
11-765 FILING DECREE.
After the
court enters a decree dissolving a corporation, the Tribal Secretary
shall file a certified copy of the decree in his office. The Tribal
Secretary shall not charge a fee for filing the decree. [TCR 94-124]
11-771 DEPOSIT WITH TRIBAL TREASURER OF AMOUNT DUE CERTAIN SHAREHOLDERS.
Upon dissolution
of a corporation, the portion of the assets distributable to a shareholder
who is unknown or cannot be found, or who is under disability, if there
is no person legally competent to receive the distributive portion,
shall be reduced to money and deposited with the Tribal Treasurer. The
amount deposited is appropriated to the Tribal Treasurer and shall be
paid over to the shareholder or a legal representative, upon proof satisfactory
to the Tribal Treasurer of a right to payment. [TCR 94-124]
11-781 CLAIMS BARRED; EXCEPTIONS.
Subdivision
1. Claims barred. Except as provided in this section, a creditor
or claimant whose claims are barred under section 11-727, 11-7291,
or 11-759 includes a person who is or becomes a creditor or claimant
at any time before, during, or following the conclusion of dissolution
proceedings, and all those claiming through or under the creditor
or claimant.
Subdivision
2. Claims reopened. At any time within one year after articles
of dissolution have been filed with the Tribal Secretary pursuant
to section 11-727 or 11-7291, subdivision 1, clause (2), or a decree
of dissolution has been entered, a creditor or claimant who shows
good cause for not having previously filed the claim may apply to
the court to allow a claim:
(a)
Against the corporation to the extent of undistributed assets; or
(b)
If the undistributed assets are not sufficient to satisfy the claim,
against a shareholder, whose liability shall be limited to a portion
of the claim that is equal to the portion of the distributions to
shareholders in liquidation or dissolution received by the shareholder,
but in no event may a shareholder's liability exceed the amount
which that shareholder actually received in the dissolution.
Subdivision
3. Obligations incurred during dissolution proceedings. All
known contractual debts, obligations, and liabilities incurred in
the course of winding up the corporation's affairs shall be paid or
provided for by the corporation before the distribution of assets
to a shareholder. A person to whom this kind of debt, obligation,
or liability is owed but not paid may pursue any remedy before the
expiration of the applicable statute of limitations against the officers
and directors of the corporation who are responsible for, but who
fail to cause the corporation to pay or make provision for payment
of the debts, obligations, and liabilities or against shareholders
to the extent permitted under section 11-559. This subdivision does
not apply to dissolution under the supervision or order of the court.
[TCR 94-124]
11-783 RIGHT TO SUE OR DEFEND AFTER DISSOLUTION.
After a
corporation has been dissolved, any of its former officers, directors,
or shareholders may assert or defend, in the name of the corporation,
any claim by or against the corporation. [TCR 94-124]
11-791 OMITTED ASSETS.
Title to
assets remaining after payment of all debts, obligations, or liabilities
and after distributions to shareholders may be transferred by the court
to any person entitled to those assets.
EXTENSION
| 11-801
Extension after duration expired. |
11-805
Effect of extension.
|
11-801 EXTENSION AFTER DURATION EXPIRED.
Subdivision
1. Extension by amendment. A corporation whose period of duration
as provided in the articles has expired and which has continued to
do business despite that expiration may reinstate its articles and
extend the period of corporate duration, including making the duration
perpetual, at any time after the date of expiration by filing an amendment
to the articles as set forth in this section.
Subdivision
2. Contents of amendment. An amendment to the articles shall
be approved by the affirmative vote of a majority of the directors
present and shall include:
(a)
The date the period of duration expired under the articles;
(b)
A statement that the period of duration will be perpetual or, if
some shorter period is to be provided, the date to which the period
of duration is extended; and
(c)
A statement that the corporation has been in continuous operation
since before the date of expiration of its original period of duration.
Subdivision
3. Approval by shareholders. The amendment to the articles
shall be presented, after notice, to a meeting of the shareholders.
The amendment is adopted when approved by the shareholders pursuant
to section 11-135.
Subdivision
4. Filing. Articles of amendment conforming to section 11-139
shall be filed with the Tribal Secretary. [TCR 94-124]
11-805 EFFECT OF EXTENSION.
Filing
with the Tribal Secretary of articles of amendment extending the period
of duration of a corporation:
(a) Relates
back to the date of expiration of the original period of duration
of the corporation as provided in the articles;
(b) Validates
contracts or other acts within the authority of the articles, and
the corporation is liable for those contracts or acts; and
(c) Restores
to the corporation all the assets and rights of the corporation to
the extent they were held by the corporation before expiration of
its original period of duration, except those sold or otherwise distributed
after that time. [TCR 94-124]
CORPORATE REGISTRATION
11-821
Winnebago Tribal corporate registration.
11-821 WINNEBAGO TRIBAL CORPORATE REGISTRATION.
Subdivision
1. Information required. A tribal corporation shall once each
calendar year file with the Tribal Secretary a registration containing:
(a)
The name of the corporation;
(b)
The address of its principal executive office, if different from
the registered office address:
(c)
The address of its registered office;
(d)
The name of its registered agent;
(e)
The name and business address of the officer or other person exercising
the principal functions of the chief executive officer of the corporation;
and
(f)
The signature of a person authorized to sign the registration on
behalf of the corporation.
Subdivision
2. Information public. The information required by subdivision
1 is public data.
Subdivision
3. Loss of good standing. A corporation that fails to file
a registration pursuant to the requirements of subdivision 1 loses
its good standing. The corporation may regain its good standing by
filing a single annual registration and paying a $25.00 fee.
Subdivision
4. Notice of repeated violation. If a corporation fails for
three consecutive years to file a registration pursuant to the requirements
of subdivision 1, the Tribal Secretary shall give notice by first
class mail to the corporation at its registered office that it has
violated this section and is subject to dissolution by the office
of the Tribal Secretary if the delinquent registration is not filed
pursuant to subdivision 1 and the $25.00 fee paid within 60 days after
the mailing of the notice. For purposes of this subdivision, "delinquent
registration" means a single annual registration.
Subdivision
5. Penalty. (a) A corporation that has failed for three consecutive
years to file a registration pursuant to the requirements of subdivision
1, has been notified of the failure pursuant to subdivision 4, and
has failed to file the delinquent registration during the 60-day period
described in subdivision 4, shall be dissolved by the Tribal Secretary
as described in paragraph (b).
(b)
Immediately after the expiration of the 60-day period described
in paragraph (a), if the corporation has not filed the delinquent
registration, the Tribal Secretary shall issue a certificate of
involuntary dissolution, and a copy of the certificate shall be
filed in the office of the Tribal Secretary. The original certificate
shall be sent to the registered office of the corporation. The Tribal
Secretary shall annually inform the Tribal Council and the Tribal
Treasurer of the names of corporations dissolved under this section
during the preceding year. A corporation dissolved in this manner
is not entitled to the benefits of section 11-781. The liability,
if any, of the shareholders of a corporation dissolved in this manner
shall be determined and limited in accordance with section 11-557,
except that the shareholders shall have no liability to any director
of the corporation under section 11-559, subdivision 2.
Subdivision
6. Reinstatement. A corporation may retroactively reinstate
its corporate existence after statutory dissolution by filing a single
annual registration and paying a $25.00 fee. Filing the annual registration
with the Tribal Secretary:
(1)
returns the corporation to active status as of the date of the statutory
dissolution;
(2)
validates contracts or other acts within the authority of the articles,
and the corporation is liable for those contracts or acts; and
(3)
restores to the corporation all assets and rights of the corporation
and its shareholders to the extent they were held by the corporation
and its shareholders before the statutory dissolution occurred,
except to the extent that assets or rights were affected by acts
occurring after the dissolution or sold or otherwise distributed
after that time. [TCR 94-124]
ACTIONS AGAINST CORPORATIONS
| 11-901
Service of process on corporation. |
11-917
Court action; remedies and penalties.
|
11-901 SERVICE OF PROCESS ON CORPORATION.
Subdivision
1. Who may be served. A process, notice, or demand required
or permitted by law to be served upon a corporation may be served
either upon the registered agent, if any, of the corporation named
in the articles, or upon an officer of the corporation, or upon the
Tribal Secretary as provided in this section.
Subdivision
2. Service on Tribal Secretary; when permitted. If a corporation
has appointed and maintained a registered agent on the Reservation
but neither its registered agent nor an officer of the corporation
can be found at the registered office, or if a corporation fails to
appoint or maintain a registered agent on the Reservation and an officer
of the corporation cannot be found at the registered office, then
the Tribal Secretary is the agent of the corporation upon whom the
process, notice, or demand may be served. The return of a licensed
law enforcement official, or the affidavit of a person not a party,
that no registered agent or officer can be found at the registered
office on the Reservation is conclusive evidence that the corporation
has no registered agent or officer at its registered office. Service
on the Tribal Secretary of any process, notice, or demand is deemed
personal service upon the corporation and shall be made by filing
with the Tribal Secretary duplicate copies of the process, notice
or demand. The Tribal Secretary shall immediately forward, by certified
mail addressed to the corporation at its registered office, a copy
of the process, notice, or demand. Service on the Tribal Secretary
is returnable in not less than 30 days notwithstanding a shorter period
specified in the process, notice, or demand.
Subdivision
3. Record of service. There shall be maintained in the office
of the Tribal Secretary a record of all processes, notices, and demands
served upon the Tribal Secretary under this section, including the
date and time of service and the action taken with reference to it.
Subdivision
4. Other methods of service. Nothing in this section limits
the right of a person 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. [TCR 94-124]
11-917 COURT ACTION; REMEDIES AND PENALTIES.
Subdivision
1. Court action. The court shall have the authority to determine,
apply and enforce appropriate remedies and penalties, including, but
not limited to, civil fines, for violations of this Code, or of the
articles of incorporation or bylaws of any corporation formed pursuant
to this Code. The remedies available to corporations and their shareholders,
shall include declaratory and injunctive relief, and special writs
of mandamus, to compel actions necessary to secure the rights, obligations
or privileges of such parties, whether or not those rights, obligations
or privileges arise under this Code. A prevailing plaintiff in any
action shall be awarded costs and reasonable attorneys fees.
Subdivision
2. Tribal intervention. If it appears at any stage of a proceeding
in the court that the Tribe is, or is likely to be, interested therein,
or that it is a matter of general public interest, the court shall
order that a copy of the complaint or petition be served upon the
Tribal Council in the same manner prescribed for serving a summons
in a civil action. The Tribal Council shall intervene in a proceeding
when the Tribal Council determines that the public interest requires
it, whether or not the Tribal Council has been served. [TCR 94-124]
CORPORATIONS WHOLLY OWNED BY THE TRIBE
| 11-1001
Scope. |
11-1022
Liability of Tribe as shareholder. |
| 11-1002
Application. |
11-1023
Shareholder meetings. |
| 11-1003
Special powers, privileges and immunities of corporations wholly
owned by the Tribe. |
11-1030
Assets, distribution of income. |
| 11-1010
Board. |
11-1091
Voluntary dissolution by incorporators. |
|
11-1021
Shares in corporations wholly owned by the Tribe; shareholders;
voting.
|
|
11-1001 SCOPE.
Sections
11-1001 through 11-1091 apply to all tribal corporations wholly owned
by the Tribe, whether directly or as a subsidiary of another tribal
corporation wholly owned by the Tribe, as provided in section 11-1002.
11-1002 APPLICATION.
Subdivision
1. Corporations directly owned by the Tribe. The consent of
the Tribal Council shall be required prior to the incorporation under
this Code of any corporation to be wholly owned by the Tribe. For
this purpose, the incorporator shall file with the Tribal Secretary,
when the incorporator files the articles of incorporation of a corporation
to be wholly owned by the Tribe, a certified copy of a resolution
of the Tribal Council authorizing the formation of the corporation.
Subdivision
2. Corporations indirectly owned by the Tribe. The consent
of the board of directors of the corporation wholly owned by the Tribe
shall be required prior to the incorporation under this Code of a
subsidiary corporation to be wholly owned by a parent corporation
that is wholly owned by the Tribe. For this purpose, the incorporator
shall file with the Tribal Secretary, when the incorporator files
the articles of incorporation of a subsidiary corporation to be wholly
owned by a parent corporation that is wholly owned by the Tribe, a
certified copy of a resolution of the board of the parent corporation
authorizing the formation of the subsidiary corporation.
Subdivision
3. Designation in articles. The articles of a corporation wholly
owned, directly or indirectly, by the Tribe and subject to the provisions
of sections 11-1001 to 11-1091 shall expressly so state and when accepting
the articles for filing, the Tribal Secretary shall note that the
corporation is governed by the provisions of this Code applicable
to wholly owned tribal corporations. [TCR 94-124]
11-1003 SPECIAL POWERS, PRIVILEGES AND IMMUNITIES OF CORPORATIONS
WHOLLY OWNED BY THE TRIBE.
Subdivision
1. Scope. The special powers, privileges and immunities described
in this section shall be available only to a corporation wholly owned,
directly or indirectly, by the Tribe.
Subdivision
2. Jurisdictional and tax immunities. All of the rights, privileges
and immunities of the Tribe concerning federal, state, or local taxes,
regulations and jurisdiction are hereby conferred on all tribal corporations
wholly owned, directly or indirectly, by the Tribe to the same extent
that the Tribe would have such rights, privileges and immunities if
it engaged in the activities undertaken by the corporation. Absent
consent by the corporation, a corporation wholly owned, directly or
indirectly, by the Tribe shall not be subject to taxation by the Tribe,
except to the extent that such taxation is necessary and reasonably
appropriate to compensate the Tribe for services provided to the corporation
by the Tribe.
Subdivision
3. Sovereign immunity. The sovereign immunity of the Tribe
is hereby conferred on all tribal corporations wholly owned, directly
or indirectly, by the Tribe. A corporation wholly owned, directly
or indirectly, by the Tribe shall have the power to sue and is authorized
to consent to be sued in the court, and in all other courts of competent
jurisdiction, provided, however, that:
(a)
no such consent to suit shall be effective against the corporation
unless such consent is:
(1)
explicit,
(2)
contained in a written contract or commercial document to which
the corporation is a party, and
(3)
specifically approved by the board of directors of the corporation,
and
(b)
any recovery against such corporation shall be limited to the assets
of the corporation.
Any consent
to suit may be limited to the court or courts in which suit may be
brought, to the matters that may be made the subject of the suit and
to the assets or revenues of the corporation against which any judgment
may be executed. [TCR 94-124]
11-1010 BOARD.
Subdivision
1. Removal of directors. A director of a corporation wholly
owned, directly or indirectly, by the Tribe may be removed with or
without cause by the Tribal Council.
Subdivision
2. Loans to directors. A corporation wholly owned, directly
or indirectly, by the Tribe may not lend money to or guarantee the
personal obligation of a director, officer or employee of the corporation
under any circumstances. [TCR 94-124]
11-1021 SHARES IN CORPORATIONS WHOLLY OWNED BY THE TRIBE; SHAREHOLDERS;
VOTING.
Subdivision
1. Shares in wholly owned corporations. Share certificates
(or transaction statements for uncertificated shares) of corporations
wholly owned, directly, by the Tribe shall be issued in the name of
the Tribe, and all such shares shall be held by and for the Tribe.
No member of the Tribe shall have any personal ownership interest
in any corporation wholly owned, directly or indirectly, by the Tribe,
whether by virtue of such person's status as a member of the Tribe
or otherwise.
Subdivision
2. Shares. A corporation wholly owned, directly, by the Tribe
may not issue preferred or special shares.
Subdivision
3. Voting. A member of the Tribal Council shall be authorized
to vote shares of the corporation owned by the Tribe, as contemplated
by section 11-445, Subdivision 4 of this Code, in the following manner:
Each member shall have the right to vote that number of shares which
is equal to a fraction of the total shares owned by the Tribe. The
fraction is calculated by dividing the total number of shares owned
by the Tribe by the number of Tribal Council members holding such
office at the date on which the vote is taken. Each member of the
Tribal Council shall enjoy such voting rights in the corporation as
is provided by the Constitution and bylaws of the Tribe to such person
as a member of the Tribal Council. Such voting rights shall be enjoyed
for as long as such council member remains a duly elected member of
the Tribal Council. In voting the shares of a corporation wholly owned
by the Tribe, the members of the Tribal Council are acting not in
a personal capacity but in a representative capacity on behalf of
the Tribe itself.
Subdivision
4. Proxies illegal. Section 11-449 shall not apply to any corporation
wholly owned, directly or indirectly, by the Tribe. Any proxy given
for the voting of shares in a corporation wholly owned, directly or
indirectly, by the Tribe shall be void and unenforceable.
Subdivision
5. Voting trusts illegal. Section 11-453 shall not apply to
any corporation wholly owned, directly or indirectly, by the Tribe.
Any voting trust agreement for any interest held in a corporation
wholly owned, directly or indirectly, by the Tribe shall be void and
unenforceable.
Subdivision
6. Shareholder control agreements illegal. Section 11-457 shall
not apply to any corporation wholly owned, directly or indirectly,
by the Tribe.
Any shareholder
control agreement for any interest held in a corporation wholly owned,
directly or indirectly, by the Tribe shall be void and unenforceable.
Subdivision
7. No cumulative voting. Section 11-215 shall not apply to
any corporation wholly owned, directly or indirectly, by the Tribe.
[TCR 94-124]
11-1022 LIABILITY OF TRIBE AS SHAREHOLDER.
Neither
the Tribe nor any member of the Tribal Council shall be under any obligation
to a corporation wholly owned, directly or indirectly, by the Tribe
or to the creditors of any such corporation and the Tribe shall not
be deemed to have waived any of the Tribe's privileges or immunities
if the Tribe incorporates, owns or operates a corporation, directly
or indirectly. [TCR 94-124]
11-1023 SHAREHOLDER MEETINGS.
Subdivision
1. Annual meeting. Annual meetings of the Tribal Council, in
its capacity as the shareholders of a corporation wholly owned, directly,
by the Tribe, shall be held at such time and at such place on the
Reservation as the board of directors shall determine. If the board
of directors fails to set the time and date of meeting, it shall be
held on the second Tuesday in January of each year. At such annual
meeting, the Tribal Council, in its capacity as the shareholders of
the corporation, shall transact such business as may properly be brought
before the meeting. Such meetings may be called and held in the same
manner as applicable law provides for meetings of the Tribal Council.
Subdivision
2. Special meetings. Special meeting of the Tribal Council,
in its capacity as the shareholders of the corporation, may be called
and held for any purpose in the manner provided for the call and holding
of special meetings of the Tribal Council.
Subdivision
3. Notice of meetings. The board of directors shall notify
the Tribal Council of the date, time and place of the annual meeting
of shareholders at least 20 days before the meeting and of any special
meeting of the shareholders at least five days before the meeting.
Notices shall be deemed to be effective if placed in the U.S. Mail,
with proper first class postage affixed, at least 22 days (but not
more than 62 days) prior to an annual meeting, and at least 7 days
(but not more than 62 days) prior to a special meeting, or on the
date personally delivered to the Secretary of the Tribal Council.
Subdivision
4. Time and place of shareholder's meetings. Meetings of the
shareholders of the corporation shall be held at the principal place
of business or of the corporation or at such other location within
the Winnebago Nebraska Reservation at such time and place as the board
of directors shall fix.
Subdivision
5. Manner of meeting. Except as otherwise provided in these
Articles, the shareholders of the corporation may conduct regular
or special meetings through the use of any means and procedures which
are proper for meetings of the Tribal Council.
Subdivision
6. Presiding officer. The Chairman of the Tribal Council shall
preside over any shareholder's meeting. [TCR 94-124]
11-1030 ASSETS; DISTRIBUTION OF INCOME.
Subdivision
1. Assets. Subject to the contractual and sovereign rights
of others, including the Tribe, the corporation shall have as its
corporate assets, and the authority to acquire, manage, own, use,
pledge, encumber, or otherwise dispose of, the following:
(a)
all funds which the corporation may acquire by subscription, grant,
gift, loan or other means,
(b)
all interests in real and personal property, whether of a tangible
or intangible nature, which the corporation may acquire by subscription,
grant, gift, loan, purchase, lease or other means, and
(c)
all earnings, interest, dividends, accumulations, contract rights,
claims and other proceeds arising from any of the foregoing.
Subdivision
2. Distribution of net income to tribe required. All or that
portion of the net income of a corporation wholly owned, directly,
by the Tribe shall be distributed to the Tribe at such time as the
Tribal Council may determine. The net income of any wholly owned subsidiary
of such a corporation and the corporation's share of the net income
of any subsidiary of such a corporation, shall be determined in accordance
with generally accepted accounting principles. Upon request of the
Tribal Council, the board of directors of a corporation wholly owned,
directly, by the Tribe will, if the corporation controls a subsidiary,
cause the subsidiary to distribute to the corporation all or such
portion of the net income of the subsidiary as may be requested by
the Tribal Council. [TCR 94-124]
11-1091 VOLUNTARY DISSOLUTION BY INCORPORATORS.
A corporation
wholly owned, directly, by the Tribe with no shares having been issued
may be dissolved by a resolution adopted by the incorporators, or if
a board of directors has been appointed or elected, by the board of
directors and separately concurred in by a majority of the members of
the Tribal Council. [TCR 94-124]
EFFECTIVE DATE AND AUTHORITY
| 11-1101
Severability; effect of invalidity of part of this Code. |
11-1113
Authority.
|
|
11-1111
Effective date.
|
11-1117
No impairment of contracts. |
11-1101 SEVERABILITY; EFFECT OF INVALIDITY OF PART OF THIS CODE.
If the
court shall adjudge to be invalid or unconstitutional any clause, sentence,
paragraph, section, article or part of this Code, such judgment or decree
shall not affect, impair, invalidate or nullify the remainder of this
Code, but the effect thereof shall be confined to the clause, sentence,
paragraph, section, article or part of this Code as adjudged to be invalid
or unconstitutional. [TCR 94-124]
11-1111 EFFECTIVE DATE.
This Code
shall be in full force and effect according to its terms from and after
September 15, 1994. [TCR 94-124]
11-1113 AUTHORITY.
This Code
is enacted by the Winnebago Tribe of Nebraska Tribal Council under the
authority vested in the Tribal Council by Article IV, Section 1, clauses
(e), (i), (n) and (o) of the Constitution and Bylaws of the Winnebago
Tribe of Nebraska, as amended. The Tribal Council reserves the right
to repeal or amend the provisions of this Code, subject to the limitation
of section 11-1117. [TCR 94-124]
11-1117 NO IMPAIRMENT OF CONTRACTS.
Otherwise
lawful contracts and other obligations of any corporation shall not
be impaired by any subsequent action of the Tribe or the Tribal Council.
Actions to restrain any attempts to impair contracts of tribal corporations,
or to declare such actions null and void, shall be available to any
interested party in court. Nothing in this section shall be construed
to restrict the general application of law, or of this Code to the acts
and contracts of tribal corporations. [TCR 94-124]
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