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The
Confederated Tribes of the Grand Ronde Community of Oregon [Ordinances]
Last
amended: 2003
| |
Date
Originally Adopted: 08-02-00 |
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Subject:
Governmental Corporations Ordinance |
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Date
Amended: 7-3-02 |
| |
Resolution
Number: 105-00; 123-02 |
Governmental Corporations Ordinance
Tribal
Code § 720
(a)
AUTHORITY AND PURPOSE
(1)
The authority for this Ordinance is found in the Tribal Constitution
under Article III, Section 1.
(2) The
purpose of this Ordinance is to set forth policies and procedures
for the governance of governmental corporations chartered under Tribal
law.
(b) BACKGROUND AND INTENT
(1)
The Tribe retains as one of its governmental powers, where consistent
with the trusteeship of the United States, the authority to commercially
utilize its resources for the economic benefit of the Tribe and to organize
corporations for this purpose. This Ordinance establishes policies and
procedures consistent with this authority to regulate the
incorporation, governance and dissolution of governmental corporations
as distinct arms of the Tribal government, subject to the provisions
of the Tribe's Constitution.
(2) The
Tribal Council has found that to promote the efficient use of Tribal
assets it is necessary for the development and management of economic
enterprises to be separated from other governmental functions of the
Tribe and placed within the responsibility of persons and entities
separate from the Tribal Council, so that commercial development may
take place within, and based upon, objective economic and financial
principals.
(3) The Tribal Council has found that it is in the best interests
of the Tribe for governmental corporations to operate separate, independent,
and autonomous from the Tribal Council, except in limited circumstances.
(c) PRIVILEGES AND IMMUNITIES
The corporations established under this Ordinance shall be considered
to be governmental agencies and instrumentalities of the Tribe, created
to carry out the responsibilities of the Tribal Council for Tribal economic
development and the advancement of Tribal members. Such corporations,
their officers, and employees are, therefore, entitled to all of the
privileges and immunities enjoyed by the Tribe; including, but not limited
to, immunities from suit in federal, state and tribal courts, and federal
and state taxation or regulation, except as specifically set out in
the corporate charters granted pursuant to this Ordinance or as specifically
waived by Tribal Council, other Tribal Ordinances or applicable federal
law.
(d)
SUBSIDIARY CORPORATION
Any corporation created pursuant to this Ordinance may, by obtaining
a charter from the Tribal Council pursuant to this Ordinance, establish
a subsidiary corporation in which the parent corporation retains all
of the stock of the subsidiary corporation. A subsidiary corporation
and its officers and employees have all the same powers, privileges
and immunities, as any other corporation established pursuant to this
Ordinance.
(e) OWNERSHIP
Every corporation created pursuant to this Ordinance shall have at all
times one-hundred (100%) percent of its stock owned by the Tribe or
another Tribal corporation created pursuant to this Ordinance. The Tribe
shall be represented solely at all times by and through its Tribal Council.
Tribal Council meetings may serve as shareholder meetings when the Tribe
is the
shareholder.
(f) POWERS, DURATION
The powers of corporations created pursuant to this Ordinance shall
be set out in the charters of the corporations. The duration of corporations
created under this Ordinance shall be perpetual unless a different duration
is stated in the charter.
(g) TRIBAL COURTS -JURISDICTION, ENFORCEMENT OF ORDINANCE
Notwithstanding the immunity from suit conveyed upon corporations created
pursuant to this Ordinance, the provisions of this Ordinance or Tribal
resolutions passed pursuant to this Ordinance may be enforced against
any such corporation, parent or subsidiary, its directors or officers
by an action brought in accordance with section (u), when brought by
Tribal Council or a parent corporation.
(h) ASSETS
The assets every corporation created under this Ordinance shall be separate
and distinct from those of the Tribe. In no case shall Tribal assets
not specifically pledged in a manner permitted by law be considered
assets of a corporation created under this Ordinance for any purpose.
(i) AUDIT
The Tribal Council, by duly adopted resolution, may at any time require
that any corporation created under this Ordinance be audited by an independent
auditor hired by the Tribal Council and shall have the absolute right
to require access to all Corporate documents necessary for such an audit.
(j) ANNUAL MEETING, ANNUAL REPORT TO TRIBAL COUNCIL, ANNUAL BUDGET
The Board of Directors and management of each corporation created pursuant
to this Ordinance shall hold at least one meeting per year, on thirty
(30) days notice, on Tribal land, at which the Board shall answer any
questions asked of them by members of Tribal Council. Each Board shall
also file a full report of the financial and business activities of
the corporation with the Tribal Council on an annual basis. Each Board
shall present to the Tribe's Finance Officer a proposed budget by October
31 of each year. The Tribe's Finance Officer shall arrange a presentation
of the proposed budget to Tribal Council and Tribal Council shall provide
comments, if any, to each Board by December 1 of the same year.
(k) PROCESS FOR INCORPORATION
(1)
Incorporators. One or more persons or a corporation chartered
under this Ordinance may act as the incorporator or incorporators
of a corporation by presenting articles of incorporation to the Tribal
Council for chartering.
(2) Articles of Incorporation.
(A)
The articles of incorporation must set forth:
1.
the corporate name of the corporation;
2. the street address of the corporation's initial registered
office located on Grand Ronde Tribal lands and the name of its
initial registered agent at that office; and
3. the name and address of each incorporator.
(B)
The articles of incorporation may set forth:
1.
the names and address of the individuals who are to serve as the
initial directors.
2.
provisions not inconsistent with law regarding:
(i)
the purpose or purposes for which the corporation is organized;
(ii)
managing the business and regulating the affairs of the corporation;
(iii) defining, limiting and regulating the powers of the corporation
or its board of directors; and
3.
any provision that under this Ordinance is required or permitted
to be set forth in the bylaws.
(C)
The articles of incorporation need not restate any of the corporate
powers enumerated in this Ordinance.
(3) Incorporation.
(A)
Unless a delayed effective date is specified, the corporate existence
begins when the articles of incorporation have been approved and
the corporation chartered by resolution of Tribal Council.
(B) The resolution of Tribal Council chartering the corporation
is conclusive proof that the incorporators satisfied all conditions
precedent to incorporation except in a proceeding by the Tribe to
cancel or revoke the incorporation or involuntarily dissolve the
corporation.
(4) Liability
for Pre-incorporation Transactions. All persons purporting to
act as or on behalf of a corporation, knowing there was no incorporation
under this Ordinance, are jointly and severally liable for all liabilities
created while so acting, unless such actions are subsequently ratified
by the corporation's board of directors.
(5) Organization
of Corporation. After incorporation, the initial directors shall
hold an organizational meeting, on Grand Ronde Tribal lands, at the
call of a majority of the directors, to complete the organization
of the corporation by appointing officers, adopting bylaws, and carrying
on any other business brought before the meeting.
(6) Bylaws.
(A)
The board of directors shall adopt the initial bylaws for the corporation.
(B) The bylaws of a corporation may contain any provision for managing
the business and regulating the affairs of the corporation that
is not inconsistent with applicable law or the corporation's articles
of incorporation.
(l) CORPORATE PURPOSES AND POWERS
(1) Corporate
Purposes. Every corporation incorporated under this Ordinance
has the purpose of engaging in any lawful business unless a more limited
purpose is set forth in the articles of incorporation or charter.
(2) A corporation engaging in a business whose activity is subject
to regulation under other laws of the Tribe may incorporate under
this Ordinance, subject to all limitations of the other tribal law.
(3) General
Powers.
(A)
to make and amend bylaws, not inconsistent with its articles of
incorporation, its charter, or the laws of the Tribe, for managing
the business and regulating the affairs of the corporation.
(B) to purchase, receive, lease or otherwise acquire and own, hold,
improve, use, and otherwise deal with, real or personal property,
or any legal or equitable interest in property, wherever located
subject to the limitations set forth in this Ordinance, its corporate
charter, or articles of incorporation.
(C)
to sell, convey, mortgage, pledge, lease, exchange and otherwise
dispose of all or any part of its property subject to the limitations
set forth in this Ordinance, its corporate charter, or articles
of incorporation.
(D) to make contracts and guarantees, incur liabilities, borrow
money, issue its notes, bonds, and other obligations, and secure
any of its obligations by mortgage or pledge of any of its property,
franchises or income subject to the limitations set forth in this
Ordinance, its corporate charter, or articles of incorporation.
(E)
to lend money, invest and reinvest its funds and receive and hold
real and personal property as security for repayment subject to
the limitations set forth in this Ordinance, its corporate charter,
or articles of incorporation.
(F) to appoint officers, employees and agents of the corporation,
define their duties and fix their compensation, provided however,
that compensation of director level and higher employees shall be
approved by Tribal Council.
(G) to pay pensions and establish pension plans, pension trusts
and benefit or incentive plans for any or all of its current or
former directors, officers, employees and agents.
(H) to transact any lawful business that will aid corporate and
Tribal governmental policies.
(I)
to make payments or donations, or do any other act, not inconsistent
with law, that furthers the business and affairs of the corporation.
(4) Ultra
Vires.
(A)
Except as provided in subsection (B) below, the validity of corporate
action may not be challenged on the ground that the corporation
lacks or lacked power to act.
(B)
A corporation's power to act may be challenged:
1.
in an action by the Tribal Council or a parent corporation the
corporation to enjoin the act pursuant to section (u); or
2. in an action by the corporation, directly, derivatively, or
through a receiver, trustee or other legal representative, against
an incumbent or former director, officer, employee or agent of
the corporation pursuant to section (u).
(5) Policies
and Procedures.
(A)
Each corporation shall adopt policies and procedures appropriate
for the corporation's business, including the following:
1.
Financial Systems and Controls.
2. Feasibility Determination and Due Diligence Procedures.
3. Investment Evaluation Procedures, if applicable, to the corporation's
business.
4.
Human Resource Policies and Procedures.
(B)
The Boards of Directors of each governmental corporation shall diligently
proceed to bring such corporate policies and procedures into compliance
with this subsection (l)(5), shall provide Tribal Council copies
of all proposed policies and procedures by August 15, 2002, prior
to implementation, and shall implement all policies and procedures
no later than September 1, 2002.
(6) Financial
Reports. Each Corporation shall submit the following financial
reports to the Tribal Council or its designee:
(A)
Balance sheet, profit and loss statement and cash flow statement
on a monthly basis; and
(B)
Any other reports to such Corporation's Board of Directors containing
financial information as prepared in the ordinary course of business.
(7) Legal
Representation. Any legal services a corporation may require shall
be handled through the Tribal Attorney's Office.
(m) CORPORATE NAME
(1) A
corporate name must contain the word "corporation," "incorporated,"
"company," or "limited," or the abbreviation "corp.,"
"inc.," "co.," or "ltd."
(2) A
corporate name must be distinguishable from the name of a corporation
incorporated or chartered pursuant to this Ordinance.
(3) A corporation may use the name of another corporation chartered
under this Ordinance if the proposed user corporation has merged with
the other corporation; has been formed by reorganization of the other
corporation; or has acquired all or substantially all of the assets,
including the corporate name, of the other corporation.
(n) REGISTERED OFFICE AND AGENT
(1) Registered
Office and Registered Agent. Each corporation chartered under
this Ordinance, must continuously maintain:
(A)
a registered office, on Grand Ronde tribal lands, that may be the
same as any of its places of business; and
(B) a registered agent, who may be:
1.
a corporation chartered under this Ordinance whose business offices
is identical with the registered office; or
2.
an individual whose business office is identical to the registered
office.
(o) SHARES
(1) Issued
and Outstanding Shares. A corporation may issue shares as authorized
by the articles of incorporation. Shares that are issued are outstanding
shares until they are
reacquired, redeemed or canceled.
(2) Stock -Alienation. No stock in any corporation created
pursuant to this Ordinance and owned by a corporation created pursuant
to this Ordinance may be alienated except
through dissolution.
(3) Liability of Shareholder. Unless otherwise provided in
the charter or articles of incorporation, a shareholder of a corporation
is not personally liable for the acts or debts of the corporation
except that a shareholder may become personally liable by reason of
its own acts or conduct.
(4) Form
and Content of Certificates.
(A)
Shares may but need not be represented by certificates. Unless this
Ordinance or another Ordinance expressly provides otherwise, the
rights and obligations of a shareholder is identical whether or
not its shares are represented by certificates.
(B)
If issued, each share certificate must state on its face at a minimum:
1.
the name of the issuing corporation and that it is organized under
the laws of the Tribe;
2. the name of the entity to whom issued; and
3. the number of shares the certificate represents.
(C)
If issued, each share certificate (1) must be signed by two officers
designated in the bylaws or by the board of directors; and (2) may
bear the corporate seal or its facsimile.
(D)
If the person who signed a share certificate no longer holds office
when the certificate is issued, the certificate is nevertheless
valid.
(5) Shares
Without Certificates. Unless the articles of incorporation or
bylaws provide otherwise, the board of directors of a corporation
may authorize the issuance of shares without certificates. The authorization
does not affect shares already represented by certificates until they
are surrendered to the corporation.
(6) Distributions
to Shareholder.
(A)
A corporation chartered under this Ordinance shall distribute all
profits of the corporation to its shareholder except that a corporation
may retain reserves necessary to carry on corporate business in
a reasonably prudent manner and as recommended by the board of directors
and approved by the shareholder, subject to further limitations
set forth in the articles of incorporation and the limitation in
subsection (B) below.
(B)
No distribution may be made if, after giving it effect:
1.
the corporation would not be able to pay its debts as they become
due in the usual course of business; or
2.
the corporation's total assets would be less than the sum of its
total liabilities plus (unless the articles of incorporation permit
otherwise) the amount that would be needed, if the corporation
were to be dissolved at the time of the distribution to satisfy
the preferential rights upon dissolution of shareholder show preferential
rights are superior to those receiving the distribution.
(C)
The board of directors may base a determination that a distribution
is not prohibited under subsection (B) above either on financial
statements prepared on the basis of accounting practices and principles
that are reasonable in the circumstances or on a fair valuation
or other method that is reasonable in the
circumstances.
(D) The effect of a distribution under subsection (B) above is measured:
1.
in the case of distribution by purchase, redemption, or other
acquisition of the corporation's shares, as of the earlier of
(i) the date money or other property is transferred or debt incurred
by the corporation or (ii) the date the shareholder ceases to
be a shareholder with respect to the acquired shares;
2. in the case of any other distribution of indebtedness, as of
the date the indebtedness is distributed;
3.
in all other cases, as of (i) the date the distribution is authorized
if the payment occurs within 120 days after the date of authorization
or (ii) the date the payment is made if it occurs more than 120
days after the date of authorization.
(E)
A corporation's indebtedness to a shareholder incurred by reason
of a distribution made in accordance with this section is at parity
with the corporation's indebtedness to its general, unsecured creditors
except to the extent subordinated by agreement.
(p) SHAREHOLDER MEETINGS
(1) Annual
Meeting.
(A)
A corporation shall hold annually, at a time stated in or fixed
in accordance with the bylaws, a meeting of the shareholder.
(B)
Annual shareholder meetings shall be held on Grand Ronde Tribal
lands at the place stated in or fixed in accordance with the bylaws.
If no place is stated in or fixed in accordance with the bylaws,
annual meetings shall be held at the corporation's principal office.
(C)
The failure to hold an annual meeting at the time stated in or fixed
in accordance with a corporation's bylaws does not affect the validity
of any corporate action.
(2) Special
Meeting.
(A)
A corporation shall hold a special meeting of its shareholder:
1.
on call of its board of directors or the person or persons authorized
to do so by the articles or incorporation or bylaws; or
2.
if the shareholder signs, dates and delivers to the corporation's
secretary written demand for the meeting describing the purpose
or purposes for which it is to be held.
(B)
Special shareholder meetings shall be held on Grand Ronde Tribal
lands, unless otherwise directed by the shareholder, at the place
stated in or fixed in accordance with the bylaws.
(C)
Only business within the purpose or purposes described in the meeting
notice required by section (p)(4)(C) may be conducted at a special
shareholder meeting.
(3) Action
Without Meeting.
(A)
Action required or permitted by this Ordinance to be taken at a
shareholder's meeting may be taken without a meeting. The action
must be evidenced by one or more written consents describing the
action taken, signed by the shareholder and delivered to the corporation
for inclusion in the minutes or filing with the corporate records.
(B) A consent signed under this section has the effect of a meeting
vote and may be described as such in any documents.
(4) Notice
of Meeting.
(A)
A corporation shall notify its shareholder of the date, time and
place of each annual and special shareholder's meeting no fewer
than 30 nor more than 60 days before the meeting date.
(B) Unless this Ordinance or the articles of incorporation require
otherwise, notice of an annual meeting need not include a description
of the purpose or purposes for which the meeting is called.
(C) Notice of a special meeting must include a description of the
purposes or purposes for which the meeting is called.
(D)
Unless the bylaws require otherwise, if an annual or special shareholder's
meeting is adjourned to a different date, time or place, notice
need not be given of the new date, time or place if the new date,
time or place is announced at the meeting before adjournment.
(5) Waiver
of Notice.
(A)
A shareholder may waive any notice required by this Ordinance, the
articles of incorporation, or bylaws before or after the date and
time stated in the notice. The waiver must be in writing, be signed
by the shareholder and be delivered to the corporation for inclusion
in the minutes or filing with the corporate records.
(B)
Attendance at a meeting by the shareholder's authorized representative:
1.
waives objection to lack of notice or defective notice of the
meeting, unless the shareholder at the beginning of the meeting
objects to holding the meeting or transacting business at the
meeting;
2. waives objection to consideration of a particular matter
at the meeting that is not within the purpose or purposes describe
in the meeting notice, unless the shareholder objects to considering
the matter when it is presented.
(6) Shareholder
Management Functions.
Unless otherwise provided in the charter of articles of incorporation
of corporations chartered under this Ordinance, shareholders shall
have limited management functions. Shareholder control will take the
form of voting at shareholder meetings or giving written consents
with respect to (a) election and removal of directors; (b) adoption,
amendment, and repeal of bylaws in accordance with subsection (v)(7);
(c) shareholder resolutions, including ratification of actions of
the board of directors, and (d) extraordinary corporate matters (i.e.,
amendments of the articles of incorporation, sale or lease of assets
not in the regular course of business, merger, consolidation, dissolution,
etc.). In general, shareholders elect the board of directors who manage
the corporation by determining corporate policy and appointing officers
to execute such policy; can intrude on the managerial discretion of
the board only to a limited extent; and control such extraordinary
matters as are beyond the scope of ordinary management.
(q) DIRECTORS
(1) Requirement
For And Duties Of Boards of Directors.
(A)
Each corporation must have a board of directors.
(B) All corporate powers shall be exercised by or under the authority
of, and the business and affairs of the corporation managed under
the direction of, its board of directors, subject to any limitations
set forth in its charter or the articles of incorporation.
(2) Organization.
The Tribal Council shall by resolution appoint the initial, organizing
directors of all corporations created pursuant to this Ordinance.
(3) Qualifications of Directors. The articles of incorporation
may describe qualifications for directors.
(4) Number
and Election of Directors.
(A)
A board of directors must consist of one or more individuals, with
the number specified or fixed in accordance with the charter, articles
of incorporation
or bylaws.
(B) The articles of incorporation or bylaws may establish a variable
range for the size of the board of directors by fixing a minimum
and maximum number of
directors.
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(C) Directors are elected at the first annual shareholder's meeting
and at each annual meeting thereafter unless their terms are staggered
under the charter or
articles.
(5) Terms
of Directors Generally.
(A)
The terms of the initial directors of a corporation expire at the
first shareholder's meeting at which directors are elected.
(B)
The terms of all other directors expire at the next annual shareholder's
meeting following their election unless their terms are staggered
under the charter or articles of incorporation.
(C) A decrease in the number of directors does not shorten an incumbent
director's term.
(D)
The term of a director elected to fill a vacancy expires at the
next time set for expiration of the term for which the director
was elected to complete.
(E) Despite the expiration of a director's term, he or she continues
to serve until his or her successor is elected and qualifies or
until there is a decrease in the number of directors.
(6) Resignation
of Directors.
(A)
A director may resign at any time by delivering written notice to
the board of directors or its chairman.
(B)
A resignation is effective when the notice is delivered unless the
notice specifies a later effective date.
(7) Removal
of Directors by Shareholders.
(A)
The shareholder may remove one or more directors with or without
cause, unless the articles of incorporation provides that the directors
may be removed only for cause.
(B) A director may be removed by the shareholder only at a meeting
called for the purpose of removing him or her and the meeting notice
must state that purpose, or one of the purposes, of the meeting
is removal of the director. If Tribe through its Tribal Council
is the shareholder then a Tribal Council meeting may serve as the
requisite shareholder meeting.
(8) Vacancy
on Board.
(A)
Unless the articles of incorporation provide otherwise, if a vacancy
occurs on a board of directors, including a vacancy resulting from
an increase in the number of directors the shareholder may fill
the vacancy.
(B) A vacancy that will occur at a specific later date (by reason
of resignation effective at a later date under section (q)(6)(b)
or otherwise) may be filled before the vacancy occurs but the new
director may not take office until the vacancy occurs.
(9) Compensation
of Directors. Unless the articles of incorporation or bylaws provide
otherwise, the shareholder may fix the compensation of directors;
provided however, that if the Tribe is not the shareholder, such compensation
must be approved by Tribal Council.
(10)
Meetings of Board.
(A)
The board of directors may hold regular and special meetings.
(B) Unless the articles of incorporation or bylaws provide otherwise,
the board of directors may permit any or all directors to participate
in a regular or special meeting by, or conduct the meeting through
the use of, any means of communication by which all directors participating
may simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present
in person at the meeting.
(C)
All regular board meetings of the corporation chartered under this
Ordinance shall be conducted on Grand Ronde Tribal lands.
(D) All members of the Tribal Council shall receive reasonable advance
written notice of regular and special board meetings and shall be
invited to attend.
(11)
Action Without Meeting.
(A)
Unless the articles of incorporation or bylaws provide otherwise,
action required or permitted by this Ordinance to be taken at a
board of directors' meeting may be taken without a meeting if the
action is taken by all members of the board. The action must be
evidenced by one or more written consents describing the action
taken, signed by each director, and included in the minutes or filed
with the corporate records reflecting the action taken.
(B)
Action taken under this section is effective when the last director
signs the consent, unless the consent specifies a different effective
date.
(C) A consent signed under this section has the effect of a meeting
vote and may be described as such in any documents.
(12)
Notice of Meeting.
(A)
Unless the articles of incorporation or bylaws provide otherwise,
regular meetings of the board of directors may be held without notice
of the date, time, place or purpose of the meeting, except as provided
in subsection 10(D) above.
(B) Unless the articles of incorporation or bylaws provide for a
longer or shorter period, special meetings of the board of directors
must be preceded by at least two days' notice of the date, time
and place of the meeting. The notice need not describe the purpose
of the special meeting unless required by the articles of
incorporation or bylaws.
(13)
Waiver of Notice.
(A)
A director may waive any notice required to directors by this Ordinance,
the articles of incorporation, or bylaws before or after the date
and time stated in the notice. Except as provided in subsection
(B) below, the waiver must be in writing, signed by the director
entitled to the notice, and filed with the minutes or corporate
records.
(B) A director's attendance at or participation in a meeting waives
any required notice to him or her of the meeting unless the director
at the beginning of the meeting (or promptly upon his or her arrival)
objects to holding the meeting or transacting business at the meeting
and does not thereafter vote or assent to action
taken at the meeting.
(14)
Quorum and Voting.
(A)
Unless the articles of incorporation or bylaws require a greater
number, a quorum of a board of directors consists of:
1.
a majority of the fixed number of directors if the corporation
has a fixed board size; or
2. a majority of the number of directors in office immediately
before the meeting begins, if the corporation has a variable-range
size board.
(B)
The articles of incorporation or bylaws may authorize a quorum of
a board of directors to consist of no fewer than one-third of the
fixed or number of directors in office, as determined under subsection
(A) above.
(C) If a quorum is present when a vote is taken, the affirmative
vote of a majority of directors present is the act of the board
of directors unless the articles of incorporation or bylaws require
the vote of a greater number of directors.
(D) A director who is present at a meeting of the board of directors
or a committee of the board of directors when corporate action is
taken is deemed to have assented to the action taken unless (1)
he objects at the beginning of the meeting (or promptly upon his
arrival) to holding it or transacting business at the meeting; (2)
his dissent or abstention from the action taken is entered in the
minutes of the meeting; or (3) he delivers written notice of his
dissent or abstention to the presiding officer of the meeting before
its adjournment or to the corporation immediately after adjournment
of the meeting. The right of dissent or abstention is not available
to a director who votes in favor of the action taken.
(15)
Committees.
(A)
Unless the articles of incorporation or bylaws provide otherwise,
a board of directors may create one or more committees and appoint
members of the board of directors to serve on them. Each committee
may have three or more members, who serve at the pleasure of the
board of directors.
(B)
The creation of a committee and appointment of members to it must
be approved by the greater of (1) a majority of all the directors
in office when the action is taken, or (2) the number of directors
required by the articles of incorporation or bylaws to take action
under section (q)( 14).
(C)
Sections (q)( 10) through (q)( 14), which govern meetings, action
without meetings, notice and waiver of notice, and quorum and voting
requirements of the board of directors, apply to committees and
their members as well.
(D) To the extent specified by the board of directors or in the
articles of incorporation or bylaws, each committee may exercise
the authority of the board of directors under section (q)( 1).
(E) A committee may not, however:
1.
authorize distributions;
2. approve or propose to the shareholder action that this Ordinance
requires to be approved by shareholder;
3.
fill vacancies on the board of directors or on any of its committees;
4. amend articles of incorporation;
5. adopt, amend or repeal bylaws;
6. approve a plan of merger not requiring shareholder approval;
7. authorize or approve reacquisition of shares, except according
to a formula or method prescribed by the board of directors; or
8. authorize or approve the issuance of shares.
(F)
The creation of, delegation of authority to, or action by a committee
does not alone constitute compliance by a director with the standards
of conduct described in section (q)( 16)( A).
(16)
Standards of Conduct for Directors.
(A)
General Standards for Directors include:
1.
a director shall discharge his or her duties as a director, including
his or her duties as a member of a committee:
(i)
in good faith;
(ii) with the care an ordinarily prudent person in a like position
would exercise under similar circumstances; and
(iii)
in a manner he or she reasonably believes to be in the best
interests of the corporation.
2.
In discharging his or her duties a director is entitled to rely
on information, opinions, reports, or statements, including financial
statements and other financial data, if prepared or presented
by:
(i)
one or more officers or employees of the corporation whom the
director reasonably believes to be reliable and competent in
the matters presented;
(ii) legal counsel, public accounts, or other persons as to
matters the director reasonably believes are within the person's
professional or expert competence; or
(iii) a committee of the board of directors of which he or she
is not a member if the director reasonably believes the committee
merits confidence.
3.
A director is not acting in good faith if he or she has knowledge
concerning the matter in question that makes reliance otherwise
permitted by subsection (2) unwarranted.
4. A director is not liable for any action taken as a director,
or any failure to take any action, if he or she performed the
duties of his or her office in compliance with this section.
(B)
Director Conflict of Interest.
1.
A conflict of interest transaction is a transaction with the corporation
in which a director of the corporation has a direct or indirect
interest, including voting on a matter before the board of directors
in which the director has a direct or indirect conflict of interest.
A conflict of interest transaction is not voidable by the corporation
solely because of the director's interest in the transaction if
any one of the following is true:
(i)
the material facts of the transaction and the director's interest
were disclosed or known to the board of directors or a committee
of the board of directors and the board or committee authorized,
approved or ratified the transaction;
(ii)
the material facts of the transaction and the director's interest
were disclosed or known to the shareholder and they authorized,
approved or ratified the transaction; or
(iii) the transaction was fair to the corporation.
2.
For purposes of this section, a director of the corporation has
an indirect interest in a transaction if (i) another entity in
which he or she has a material financial interest in or which
he or she is a general partner is a party to the transaction or
(ii) another entity of which he or she is a director, officer,
or trustee is a party to the transaction and the transaction is
or should be considered by the board of directors of the corporation.
3.
For purposes of subsection (q)(16)(B)(1), a conflict of interest
transaction is authorized, approved, or ratified if it receives
the affirmative vote of a majority of the directors on the board
of directors (or on the committee) who have no direct or indirect
interest in the transaction, but a transaction may not be authorized,
approved or ratified under this section by a single director.
If a majority of the directors who have no direct or indirect
interest in the transaction vote to authorize, approve or ratify
the transaction, a quorum is present for the purpose of taking
action under this section. The presence of, or a vote cast by,
a director with a direct or indirect interest in the transaction
does not affect the validity of any action taken under subsection
(B)(1) if the transaction is otherwise authorized, approved or
ratified as provided in that subsection.
4.
For purposes of subsection (q)(16)(B)(1), a conflict of interest
transaction is authorized, approved, or ratified if it receives
shareholder approval.
(17)
Director's Management Functions. Directors are required to
use their best judgment and independent discretion and are responsible
for the determination and execution of corporate policy, including
(a) policy decisions with respect to products, services, prices, wages,
employment and labor relations; (b) selection, supervision, and removal
of officers and possibly other executive personnel; (c) fixing of
executive compensation (subject to approval by Tribal Council under
section (l)(3)(F) of this Ordinance), pension, retirement, etc. plans;
(d) determination of dividends (subject to subsection (o)(6) hereof),
financing and capital changes; (e) delegation of authority for administrative
and possibly other action; (f) possible adoption, amendment and repeal
of bylaws; (g) possible participation, along with shareholder, in
approving various extraordinary corporate matters; and (h) supervision
and vigilance for the welfare of the corporation.
(r) OFFICERS
(1) Required
Officers.
(A)
A corporation has the officers described in its bylaws or appointed
by the board of directors in accordance with the bylaws.
(B)
A duly appointed officer may appoint one or more assistant officers
if authorized by the bylaws or the board of directors.
(C) The bylaws or the board of directors shall delegate to one of
the officers responsibility for preparing minutes of the directors'
and shareholder's meetings and for authenticating records of the
corporation.
(D) The same individual may simultaneously hold more than one office
in a corporation.
(2) Duties
of Officers. Each officer has the authority and shall perform
the duties set forth in the bylaws, or to the extent consistent with
the bylaws, the duties prescribed by the board of directors or by
direction of an officer authorized by the board of directors to prescribe
the duties of other officers.
(3) Officer's
Management Functions. Officers have such management functions
as are delegated to them by the board of directors, pursuant to the
charter, articles of incorporation, bylaws and resolutions of the
board. Apart from such express delegation, officers have the following
implied authority arising out of their offices unless otherwise
provided in the corporation's charter, articles of incorporation or
bylaws.
(A)
Chairman of the Board: The Chairman of the Board, if such an officer
be elected, presides, if present, at all meetings of the board of
directors and performs all other duties incident to the office or
properly required by the board of directors. If there is no President,
the Chairman of the Board also becomes the President of the corporation
and has the powers and duties prescribed in subsection (B) below.
(B) President or Chief Executive Officer: Subject to supervisory
powers of the board of directors, if any, as may be given by the
board of directors to the Chairman of the Board, if there be such
an officer, the President shall be the general manager and chief
executive officer of the Corporation and, subject to the control
of the board of directors, shall have general supervision over and
control of the business and officers of the corporation. In the
absence of the Chairman of the board of directors or if that office
is not filled, the President, if a member of the board of directors,
presides at all meetings of the Board. The President has general
power of management as well as any other powers and duties prescribed
by the Board, and shall be primarily responsible for carrying out
all orders and resolutions of the Board, but has no authority by
virtue of the office to bind the corporation.
(C) Chief Financial Officer or Treasurer: The chief financial officer
or treasurer has authority to receive and keep corporate moneys
and securities and to keep books of account. The chief financial
officer or treasurer has authority to disburse corporate funds in
payment of the just demands against the corporation or as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and to render to the board of directors from time
to time as may be required by the board of directors an account
of all transactions as chief financial officer or treasurer and
of the financial condition of the corporation. The chief financial
officer has such other powers and performs all duties incident to
the office or which may be properly prescribed by the board of directors,
the Chairman of the Board or the President, but has no authority
by virtue of the office to bind the corporation.
(D)
Secretary: The secretary keeps, or causes to be kept, at the corporation's
principal office, or such other place as the board of directors
may direct, a book of minutes of all meetings and actions of directors.
The secretary is responsible for notifying notice of all meetings
with the shareholder, directors and committees required to be given
by this Ordinance or the corporate bylaws, certifying corporate
records and keeping and attesting the corporate seal, if any. The
secretary has such powers and performs such other duties as may
be properly prescribed by the board of directors, chairman of the
board or the president, but has no authority by virtue of office
to bind the corporation.
(4) Standards
of Conduct for Officers.
(A)
An officer with discretionary authority shall discharge his or her
duties under that authority:
1.
in good faith;
2. with the care an ordinarily prudent person in a like position
would exercise under similar circumstances; and
3. in a manner he or she reasonably believes to be in the best
interests of the corporation;
(B)
In discharging his or her duties an officer is entitled to rely
on information, opinions, reports, or statements, including financial
statements and other financial data, if prepared or presented by:
1.
one or more officers or employees of the corporation whom the
officer reasonably believes to be reliable and competent in the
matters presented; or
2. legal counsel, public accountants, or other persons as to matters
the officer reasonably believes are within the person's professional
or expert competence.
(C)
An officer is not acting in good faith if he or she has knowledge
concerning the matter in question that makes reliance otherwise
permitted by subsection (B)
unwarranted.
(D) An officer is not liable for any action taken as an officer,
or any failure to take any action, if he performed the duties of
his office in compliance with this section.
(5) Contracts
with Officers. Notwithstanding any other provisions of this Ordinance
or charters or articles of incorporation granted pursuant to provisions
of this Ordinance, all directors or officers of any governmental corporation
chartered under this Ordinance, and any firm in which said directors
or officers hold office, or are shareholders or owners, shall be disqualified
from dealing or contracting with tribal governmental corporations,
or subsidiaries thereof, as either a vendor, purchaser, or otherwise;
and such contracts or transactions shall be void, unless such contract
or transaction has been fully disclosed to, and approved by, the Tribal
Council; provided, this section shall not apply to the employment
contracts of persons employed in full time, management positions,
by a governmental corporation or a subsidiary thereof.
(6) Resignation
and Removal of Officers.
(A)
An officer may resign at any time by delivering notice to the corporation.
A resignation is effective when the notice is delivered unless the
notice specifies a later effective date. If a resignation is made
effective at a later date and the corporation accepts the future
effective date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that
the successor does not take office until the effective date.
(B)
A board of directors may remove any officer at any time with or
without cause.
(7) Contract
Rights of Officers.
(A)
The appointment of an officer does not itself create contract rights.
(B) An officer's removal does not affect the officer's contract
rights, if any, with the corporation. An officer's resignation does
not affect the corporation's contract rights, if any, with the officers.
(s) INDEMNIFICATION
(1) Definitions.
In this section:
(A)
"Corporation" includes any entity of a corporation in
a merger or other transaction in which the predecessor's existence
ceased upon consummation of the transaction.
(B) "Expenses" include legal counsel fees.
(C) "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan), or reasonable expenses incurred
with respect to a proceeding.
(D) "Official capacity" means: (i) when used with respect
to a director, the office of director in a corporation; and (ii)
when used with respect to an individual other than a director, as
contemplated in section (s)( 5), the office in a corporation held
by the officer or the employment or agency relationship undertaken
by the employee or agent on behalf of the corporation. "Official
capacity" does not include service for any other corporation
or any partnership, joint venture, trust, employee benefit plan,
or other enterprise.
(E) "Party" includes an individual who was, is, or is
threatened to be named defendant or respondent in a proceeding.
(F)
"Proceeding" means any threatened, pending, or completed
action, suit or proceeding, whether civil, criminal, administrative,
or investigative and whether formal or informal.
(G) "Tribe" means the Confederated Tribes of the Grand
Ronde Community of Oregon. All actions to be taken on behalf of
the Tribe under this Ordinance shall be taken solely by and through
its Tribal Council.
(2) Authority
to Indemnify.
(A)
Except as provided in subsection (D) below, a corporation may indemnify
an individual who is made a party to a proceeding because of conduct
by the individual while he or she is or was a director against liability
for reasonable expenses of litigation, including, but not limited
to costs, any judgment, and other
reasonable costs of defense, incurred in the proceeding if:
1.
he or she conducted himself or herself in good faith; and
2. he or she reasonably believed:
(i)
in the case of conduct in his or her official capacity with
the corporation, that his or her conduct was in the corporation's
best interests; and
(ii) in all other cases, that his or her conduct was at least
not opposed to the corporation's best interests; and
3.
in the case of any criminal proceeding, he or she had no reasonable
cause to believe his or her conduct was unlawful.
(B)
A director's conduct with respect to an employee benefit plan for
a purpose he or she reasonably believed to be in the interests of
the participants in and beneficiaries of the plan is conduct that
satisfies the requirement of subsection (s)(2)(A)(2)(ii).
(C)
The termination of a proceeding by judgment, order, settlement,
conviction or upon a plea of no contest or its equivalent is not,
of itself, determinative that the director did not meet the standard
of conduct described in this section.
(D) A corporation may not indemnify a director under this section:
1.
in connection with a proceeding by or in the right of the corporation
in which the director was adjudged liable to the corporation;
or
2.
in connection with any other proceeding charging improper personal
benefit to him or her, whether or not involving action in his
or her official capacity, in which he or she was adjudged liable
on the basis that personal benefit was improperly received by
him or her.
(3) Advance
for Expenses.
(A)
A corporation may pay for or reimburse the reasonable expenses incurred
by a director who is a party to a proceeding in advance of final
disposition of the proceeding if:
1.
the director furnishes the corporation a written affirmation of
his or her good faith belief that he or she has met the standard
of conduct described in section (s)( 2);
2. the director furnishes the corporation a written undertaking,
executed personally or on his or her behalf, to repay the advance
if it is ultimately determined that he or she did not meet the
standard of conduct; and
3.
a determination is made that the facts then known to those making
the determination would not preclude indemnification under this
Section.
(B)
The undertaking required in subsection (s)(3)(A)(2) must be an unlimited
general obligation of the director but need not be secured and may
be accepted without reference to financial ability to made repayment.
(C) Determinations and authorizations of payments under this section
shall be made in the manner specified in section (s)(4).
(4) Determination
and Authorization of Indemnification.
(A)
A corporation may not indemnify a director under section (s)(2) unless
authorized in the specific case after a determination has been made
that indemnification of the director is permissible in the circumstances
because he has met the standard of conduct set forth in section (s)(2).
(B)
The determination shall be made:
1.
by the board of directors by majority vote of a quorum consisting
of directors not at the time parties to the proceeding;
2.
if a quorum cannot be obtained under (1) above, by majority vote
of a committee duly designated by the board of directors (in which
designation directors who are parties may participate), consisting
solely of two or more directors not at the time parties to the
proceeding; or
3.
by the shareholder.
(C)
Authorization of indemnification and evaluation as to reasonableness
of expenses shall be made in the same manner as the determination
that indemnification is permissible.
(5) Indemnification
of Officers, Employees and Agents. Unless a corporations charter
or articles of incorporation provide otherwise:
(A)
the corporation may indemnify and advance expenses under this section
to an officer, employee or agent of the corporation who is not a
director to the same extent as to a director; and
(B)
a corporation may also indemnify and advance expenses to an officer,
employee, or agent who is not a director to the extent, consistent
with public policy, that may be provided by the charter, articles
of incorporation, bylaws, general or specific action of its board
of directors or a contract approved by the board of directors.
(6) Limitation
on Indemnification.
(A)
If the charter or articles of incorporation limit indemnification
or advance for expenses; indemnification and advance for expenses
are valid only to the extent consistent with the charter or articles.
(B) This section does not limit a corporations power to pay or reimburse
expenses incurred by a director in connection with his appearance
as a witness in a proceeding at a time when he has not been named
a defendant or respondent to the proceeding.
(t) INSURANCE
A corporation may purchase and maintain insurance on behalf of an individual
who is or was a director, officer, employee or agent of the corporation
or who while a director, officer, employee or agent of the corporation,
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust,
employee benefit plan, or other enterprise, against liability asserted
against or incurred by him or her in that capacity or arising from his
or her status as director, officer, employee or agent, whether or not
the corporation would have the power to indemnify him or her against
the same liability under section (s).
(u) DISPUTE RESOLUTION/ PROCEEDINGS
(1) Definitions.
In this section:
(A)
"Non-Significant Action" means those actions that are
not Significant Actions.
(B)
"Significant Action" means any action that:
1. is an Ultra Vires act;
2. is an unlawful act;
3. has or could cause material harm to the assets of the corporation
or the Tribe if no immediate action is taken; or
4.
has or could cause material harm to the reputation of the corporation
or the Tribe if no immediate action is taken.
(2) Procedure
for Dispute Resolution of Non-Significant Actions.
(A)
A shareholder corporation (who was a shareholder at the time of
the disputed action), parent corporation of such shareholder corporation
or Tribal Council, directly or derivatively, may only commence an
action to resolve disputes regarding Non-Significant actions of
a corporation, its directors or its officers through the following
procedure:
1.
The complainant shall bring its complaint about corporate actions
to the attention of the chairman of the board of directors. The
complaint shall be in writing and specify in reasonable detail
the nature of the complaint. The chairman shall schedule a meeting
between the complainant, the shareholder, the board of directors
and appropriate officers of the corporation to resolve the matter.
Such meeting shall be held within ten (10) working days of the
chairman's receipt of the complaint.
2. If the matter is not resolved within five (5) working days
after the meeting described in subsection (1) above, the matter
shall be resolved through formal mediation. The complainant and
the board of directors shall mutually select the mediator. If
the complainant and the board of directors cannot agree on a mediator
within five (5) working days, then, upon application of either
party to the dispute, the Chief Judge of Tribal Court shall select
a mediator. The cost of the mediation shall be shared by the parties.
(i)
The mediator shall be given any written statements of the parties
and may review any documents or other materials he or she deems
relevant to the dispute. The mediator shall call a meeting of
the parties within ten (10) working days after his or her appointment,
which meeting shall be attended by the parties authorized representatives
and such other persons as may be requested by the parties or
the mediator. These authorized representatives shall have authority
to settle the dispute and shall attempt in good faith to resolve
the dispute. The mediator may meet with the parties separately
as necessary to resolve the dispute.
(ii)
No minutes shall be kept with respect to any mediation proceedings
and the comments or findings of the mediator, together with
any written statements prepared, shall be non-binding, confidential
and without prejudice to the rights and remedies of any party.
The entire mediation process shall be completed within twenty
(20) working days of the date on which the initial meeting was
held, unless the parties agree otherwise in writing. If the
dispute is settled through the mediation process, the decision
will be implemented by written agreement signed by the parties.
(B)
If the matter is not resolved through the formal mediation process
set forth in subsection (A)( 2) above, the matter shall be resolved
through binding arbitration. The cost of the arbitration shall be
shared by the parties.
1.
The decisions and award of the arbitrator shall be final and binding.
The arbitration shall be conducted pursuant to arbitration and
State of Oregon set forth at ORS 36.300-36.365, as may from time
to time be amended, which statue is adopted as substantive law
of the Tribe, except to the extent inconsistent with other Tribal
law and the sovereign immunity of the Tribe. All reference to
"Circuit Court" in the Oregon arbitration and award
statute are deleted and replaced with "Tribal Court."
All reference to "jury" or "juries" are deleted.
2.
The arbitration shall be conducted by a single arbitrator selected
by mutual agreement of the parties. The arbitrator selected shall
be neutral and unbiased, except to the extent the arbitrator's
prior relationship with either party is fully disclosed and consented
to by the other party. If the parties are unable to agree upon
the arbitrator within ten (10) days after either party's demand
for arbitration, then, upon application of either party, the Chief
Judge of Tribal Court shall designate the arbitrator.
3. The parties to the arbitration shall be entitled to such discovery
as would be available to them in an action in Tribal Court. The
arbitrator shall have all the authority of Tribal Court incidental
to such discovery, including without limitation, authority to
issue orders to produce documents or other materials, to issue
orders to appear and submit to depositions and to impose appropriate
sanctions including, without limitation, award against a party
for failure to comply with any order.
4. The parties to arbitration may offer such evidence as they
desire and shall produce such additional evidence as the arbitrator
may deem necessary for understanding and determination of the
dispute. The arbitrator shall determine the admissibility of the
evidence offered. Evidence shall be taken in the presence of the
arbitrator and all of the parties, except where any of the parties
is absent, in default or has waived its right to be present.
5.
The arbitrator may require the plaintiff to pay any of defendant's
reasonable expenses (including attorneys fees) incurred in defending
the proceeding if it finds that the proceeding was commenced without
reasonable cause.
6.
The decision of the arbitrator pursuant this subsection (u)( 2)(
B) shall be enforceable in Tribal Court.
(3) Procedure
for Dispute Resolution of Significant Actions.
(A)
A shareholder corporation (who was a shareholder at the time of
the disputed action), parent corporation of such shareholder corporation
or Tribal Council, directly or derivatively, may commence an action
to resolve disputes regarding Significant Actions of a corporation,
its directors or its officers in Tribal Court.
(B) A complaint in a proceeding pursuant to this subsection (u)(3)
must allege with particularity and verify the demand made, if any,
to obtain action by the board of directors and either that the demand
was refused or ignored or why a demand was not made. Whether or
not a demand for action was made, if the corporation commences an
investigation of the changes made in the demand or complaint, the
court may stay any proceeding until the investigation is completed.
(C)
On termination of the proceeding, the court may require the plaintiff
to pay any defendant's reasonable expenses (including attorneys
fees) incurred in defending the proceeding if it finds that the
proceeding was commenced without reasonable cause.
(v) AMENDMENT OF ARTICLES OF INCORPORATION AND BYLAWS
(1) Authority
to Amend. A Corporation may amend its articles of incorporation
at any time to add or change a provision that is required or permitted
in the articles of incorporation or to delete a provision not required
in the articles of incorporation. Whether a provision is required
or permitted in the articles of incorporation is determined
as of the effective date of the amendment.
(2) Amendment by Board of Directors. Unless the charter or
articles of incorporation provide otherwise, a corporation's board
of directors may adopt the following amendments to the corporation's
articles of incorporation without shareholder action:
(A)
to delete the names and addresses of the initial directors;
(B) to delete the name and address of the initial registered agent
or registered office, if a statement of change is on file with the
Secretary of Tribal Council.
(3) Amendment
by Board of Directors and Shareholder.
(A)
A corporation's board of directors may propose one or more amendments
to the articles of incorporation for submission to the shareholder.
(B)
For the amendment to be adopted:
1.
the board of directors must recommend the amendment to the shareholder
unless the board of directors determines that because of conflict
of interest or other special circumstances it should make no recommendation
and communicates the basis for its determination to the shareholder
with the amendment; and
2. the shareholder must approve the amendment as provided in subsection
(E); and
3.
the Tribal Council must be provided 30 days advance notice of
the amendment.
(C)
The board of directors may condition its submission of the proposed
amendment on any basis.
(D) The corporation shall notify the shareholder of the purposed
shareholder's meeting in accordance with section (p)(4). The notice
of the meeting must also state that the purpose, or one of the purposes,
of the meeting is to consider the proposed amendment and contain
or be accompanied by a copy or summary of the amendment.
(E) Unless the Ordinance, charter, articles of incorporation require
a greater vote the amendment to be adopted must be approved by a
majority vote.
(4) Articles
of Amendment. A corporation amending its articles of incorporation
shall deliver to the Secretary of Tribal Council for filing articles
of amendment setting forth:
(A)
the name of the corporation;
(B) the text of each amendment adopted:
(C) if an amendment provides for an exchange of shares, provisions
for implementing the amendment if not contained in the amendment
itself;
(D)
the date of each amendment's adoption;
(E) if an amendment was adopted by the board of directors without
shareholder action, a statement to that effect and that shareholder
action was not required;
(F)
if an amendment was approved by the shareholder a statement to that
effect.
(5) Restated
Articles of Incorporation.
(A)
A corporation's board of directors may restate its articles of incorporation
at anytime with or without shareholder action.
(B)
The restatement may include one or more amendments to the articles.
If the restatement includes an amendment requiring shareholder approval,
it must be adopted as provided in section (p)( 3).
(C) If the board of directors submits a restatement for shareholder
action, the corporation shall notify the shareholder of the proposed
shareholder's meeting in accordance with section (p)(4). The notice
must also state that the purpose, or one of the purposes, of the
meeting is to consider the proposed restatement that
identifies any amendment of other change it would make in the articles.
(D) A corporation restating its articles of incorporation shall
deliver to the secretary of Tribal Council for filing articles of
restatement setting forth the name of the corporation and the text
of the restated articles of incorporation together with a certificate
setting forth:
1.
whether the restatement contains an amendment to the articles
requiring shareholder approval and, if it does not, that the board
of directors adopted the restatement; and
2. if the restatement contains an amendment to the articles requiring
shareholder approval, the information required by section (p)(4).
(E)
Duly adopted restated articles of incorporation supersede the original
articles of incorporation and all amendments to them.
(F) The Secretary of Tribal Council may certify restated articles
of incorporation, as the articles of incorporation currently in
effect, without including the certificate information required in
subsection (D) above.
(6) Effect
of Amendment. An amendment to articles of incorporation does not
affect a cause of action existing against or in favor of the corporation,
a proceeding to which the corporation is a party, or the existing
rights of persons (other than the authorized representatives of the
shareholder of the corporation). An amendment changing a
corporation's name does not abate an action, pursuant to section (u),
brought by or against the corporation in its former name.
(7) Amendment
by Board of Directors or Shareholder.
(A)
A corporation's board of directors may amend or repeal the corporation's
bylaws unless:
1.
the articles of incorporation or charter or this Ordinance reserve
this power exclusively to the shareholder in whole or part; or
2.
the shareholder's amendment or repealing a particular bylaw provide
expressly that the board of directors may not amend or repeal
that bylaw.
(B)
A corporation's shareholder may amend or repeal the corporation's
bylaws even though the bylaws may also be amended or repealed by
its board of directors.
(8) Bylaw
Increasing Quorum or Voting Requirement for Directors.
(A)
A bylaw that fixes a greater quorum or voting requirement for the
board of directors may be amended or repealed:
1.
if originally adopted by the shareholder, only by the shareholder;
2. if originally adopted by the board of directors, either by
the shareholder or by the board of directors.
(B)
A bylaw adopted or amended by the shareholder that fixes a greater
quorum or voting requirement for the board of directors may provide
that it may be amended or repealed only by a specified vote of either
the shareholder or the board of directors.
(C)
Action by the board of directors under subsection (A)(2) above to
adopt or amend a bylaw that changes the quorum or voting requirement
for the board of directors must meet the same quorum requirement
and be adopted by the same vote required to take action under the
quorum and voting requirement then in effect or
proposed to be adopted, whichever is greater.
(w) MERGER AND SHARE EXCHANGE
(1) Merger.
(A)
One or more corporations chartered under this Ordinance may merge
into another corporation if the board of directors of each corporation
adopts and its shareholder (if required by section (w)(3)) approves
a plan of merger.
(B)
The plan of merger must set forth:
1.
the name of each corporation planning to merge and the name of
the surviving corporation into which each other corporation plans
to merge;
2.
the terms and conditions of the merger; and
3. the manner and basis of converting the shares of each corporation
into shares, obligations, or other securities of the surviving
or any other corporation or into cash or other property in whose
or part.
(C)
The plan of merger may set forth:
1.
amendments to the articles of incorporation of the surviving corporation;
and
2.
other provisions relating to the merger.
(2) Share
Exchange.
(A)
A corporation chartered under this Ordinance may acquire all of
the outstanding shares of another corporation chartered under this
Ordinance if the board of directors of each corporation adopts and
its shareholder (if required by section (w)(3)) approves the exchange.
(B)
The plan of exchange must set forth:
1.
the name of the corporation whose shares will be acquired and
the name of the acquiring corporation;
2.
the terms and conditions of the exchange;
3. the manner and basis of exchanging the shares to be acquired
for shares, obligations, or other securities of the acquiring
or any other corporation or for cash or other property in whole
or part.
(C)
The plan of exchange may set forth other provisions relating to
the exchange.
(D)
This section does not limit the power of a corporation to acquire
the shares of another corporation chartered under this Ordinance
through a voluntary exchange or otherwise.
(3) Action
on Plan.
(A)
After adopting a plan of merger or share exchange, the board of
directors of each corporation party to the merger, and the board
of directors of the corporation whose shares will be acquired in
the share exchange, shall submit the plan of merger or share exchange
for approval by its shareholder.
(B)
For a plan of merger or share exchange to be approved:
1.
the board of directors must recommend the plan of merger or share
exchange to the shareholder, unless the board of directors determines
that because of conflict of interest or other special circumstances
it should make no recommendation and communicates the basis for
its determination to the shareholder with the plan; and
2.
the shareholder must approve the plan.
(C)
The board of directors may condition its submission of the proposed
merger or share exchange on any basis.
(D)
The corporation shall notify the shareholder of the proposed shareholder's
meeting in accordance with section (p)(4). The notice must also
state that the purpose, or one of the purposes, of the meeting is
to consider the plan of merger or share exchange and contain or
be accompanied by a copy or summary of the plan.
(4) Merger
of Subsidiary.
(A)
A parent corporation of a subsidiary corporation may merge the subsidiary
into itself without approval of the shareholder.
(B)
The board of directors of the parent shall adopt a plan of merger
that sets forth:
1.
the name of the parent and subsidiary; and
2. the manner and basis of converting the shares of the subsidiary
into shared, obligations or other securities of the parent or
any other corporation chartered under this Ordinance or into cash
or other property in whole or part.
(C)
Articles of merger under this section may not contain amendments
to the articles of incorporation of the parent corporation (except
for amendments enumerated in section (w)(1).
(5) Articles
of Merger or Share Exchange.
(A)
After a plan of merger or share exchange is approved by the shareholder,
or adopted by the board of directors if shareholder approval is
not required, the surviving or acquiring corporation shall deliver
to the secretary of Tribal Council for filing articles of merger
or share exchange setting forth:
1.
the plan of merger or share exchange;
2. if shareholder approval was not required, a statement to that
effect;
3.
if approval of the shareholder of one or more corporations party
to the merger or share exchange was required, the total number
of votes cast for and against the plan by each shareholder and
a statement that the number cast for the plan by the shareholders
was sufficient for approval.
(6) Effect
of Merger or Share Exchange.
(A)
When a merger takes effect:
1.
every other corporation party to the merger merges into the surviving
corporation and the separate existence of every corporation except
the surviving corporation ceases;
2. the title to all real and personal property owned by each corporation
party to the merger is vested in the surviving corporation without
reversion or impairment;
3. the surviving corporation has all liabilities of each corporation
party to the merger;
4.
a proceeding pending against any corporation party to the merger
may be continued as if the merger did not occur or the surviving
corporation may be substituted in the proceeding for the corporation
whose existence ceased;
5.
the articles of incorporation of the surviving corporation are
amended to the extent provided in the plan of merger; and
6. the shares of each corporation party to the merger that are
to be converted into shares, obligations, or other securities
of the surviving or any other corporation or into cash or other
property are converted and the former holders of the shares are
entitled only to the rights provided in the articles of merger.
(x) SALE OF ASSETS
(1) Sale
of Assets in Regular Course of Business and Mortgage of Assets.
(A)
A corporation may, on the terms and conditions and for the consideration
determined by the board of directors:
1.
sell, lease, exchange, or other wise dispose of all, or substantially
all, of its property in the usual and regular course of business,
2. mortgage, pledge, dedicate to the repayment of indebtedness
(whether with or without recourse), or otherwise encumber any
or all of its property whether or not in the usual and regular
course of business, or
3. transfer any or all of its property to a corporation all the
shares of which are owned by the corporation.
(B)
Unless the articles of incorporation require it, approval by the
shareholder of a transaction described in subsection (A) above is
not required.
(2) Sale
of Assets Other Than in Regular Course of Business.
(A)
A corporation may sell, lease, exchange, or otherwise dispose of
all, or substantially all, of its property (with or without the
good will), otherwise than in the usual and regular course of business,
on the terms and conditions and for the consideration determined
by the corporation's board of directors, if the board of
directors proposes and its shareholder approves the proposed transaction.
(B) For a transaction to be authorized:
1.
the board of directors must recommend the proposed transaction
to the shareholder unless the board of directors determines that
because of conflict of interest or other special circumstances
it should make no recommendation and communicates the basis for
its determination to the
shareholder with the submission of the proposed transaction; and
2. the shareholder must approve the transaction.
(C)
The board of directors may condition its submission of the proposed
transaction on any basis.
(D)
The corporation shall notify the shareholder of the proposed shareholder
meeting in accordance with section (p)(4). The notice must also
state that the purpose, or one of the purposes, of the meeting is
to consider the sale, lease, exchange, or other disposition of all
or substantially all, the property of the
corporation and contain or be accompanied by a description of the
transaction.
(E) After a sale, lease, exchange, or other disposition of property
is authorized, the transaction may be abandoned without further
shareholder action.
(F)
A transaction that constitutes a distribution is governed by section
(o)( 6) and not by this section.
(3) Excess
or Surplus Property. A corporation shall notify Tribal Council
of its intent to sell excess or surplus property and provide the Tribe
with 15 days advance notice and opportunity to purchase the property
to the extent practicable.
(y) DISSOLUTION
(1) Dissolution
by Incorporators or Initial Directors. A majority of the incorporators
or initial directors of a corporation that has commenced business
may dissolve the corporation by delivering to the Tribal Council Secretary
for filing articles of dissolution setting forth:
(A)
the name of the corporation;
(B) the date of its incorporation;
(C) that the corporation has not commenced business;
(D) that no debt of the corporation remains unpaid:
(E) that the net assets of the corporation remaining after winding
up have been distributed to the shareholder; and
(F)
that a majority of the incorporators or initial directors authorized
the dissolution.
(2) Dissolution
by Board of Directors and Shareholder.
(A)
A corporation's board of directors may propose dissolution for submission
to the shareholder.
(B)
For a proposal to dissolve to be adopted:
1.
the board of directors must recommend dissolution to the shareholder
unless the board of directors determines that because of conflict
of interest or other special circumstances it should make no recommendation
and communicates the basis for its determination to the shareholder;
and
2. the shareholder must approve the proposal to dissolve.
(C)
The board of directors may condition is submission of the proposal
for dissolution on any basis.
(D) The corporation shall notify the shareholder, of the proposed
shareholder's meeting in accordance with section (p)(4) The notice
must also state that the purpose, or one of the purposes, of the
meeting is to consider dissolving the corporation.
(3) Articles
of Dissolution.
(A)
At any time after dissolution is authorized, the corporation may
dissolve by delivering to the Tribal Council articles of dissolution
setting forth:
1.
the name of the corporation;
2. the date dissolution was authorized;
3.
statement that the dissolution was approved by the shareholder.
(B)
A corporation is dissolved upon the expiration of 15 days following
its delivery of the articles of dissolution to Tribal Council (the
effective date of the articles of dissolution).
(4) Revocation
of Dissolution.
(A)
A corporation may revoke its dissolution within 120 days of its
effective date.
(B)
Revocation of dissolution must be authorized in the same manner
as the dissolution was authorized unless that authorization permitted
revocation by action by the board of directors alone, in which event
the board of directors may revoke the dissolution without shareholder
action.
(C)
After the revocation of dissolution is authorized, the corporation
may revoke the dissolution by delivering to the Tribal Council Secretary
for filling articles of revocation of dissolution, together with
a copy of its articles of dissolution, that set forth:
1.
the name of the corporation;
2. the effective date of the dissolution that was revoked;
2. the date that the revocation of dissolution was authorized;
4. if the corporation's board of directors (or incorporators)
revoked the dissolution, a statement to that effect;
5.
if the corporation's board of directors revoked a dissolution
authorized by the shareholder, a statement that revocation was
permitted by action by the board of directors alone pursuant to
that authorization; and
6. if shareholder action was required to revoke the dissolution,
a statement that revocation was approved by the shareholder.
(D)
Unless a delayed effective date is specified, revocation of dissolution
if effective when articles of revocation of dissolution are filed.
(E) When the revocation of dissolution is effective, it relates
back to and takes effect as of the effective date of the dissolution
and the corporation resumes carrying on its business as if dissolution
had never occurred.
(5) Effect
of Dissolution.
(A)
A dissolved corporation continues its corporate existence, but may
not carry on any business except that appropriate to wind up and
liquidate its business and affairs, including:
1.
collection its assets;
2. disposing of its properties that will not be distributed in
kind to its shareholder;
3.
discharging or making provision for discharging its liabilities;
4. distributing its remaining property to its shareholder; and
5. doing every other act necessary to wind up and liquidate its
business and affairs.
(B)
Dissolution of a corporation does not:
1.
transfer title to the corporation's property;
2. prevent transfer of its shares or securities, although the
authorization to dissolve may provide for closing the corporations
share transfer records;
3. subject its directors or officers to standards of conduct different
from those prescribed in this Ordinance;
4.
change quorum or voting requirements for its board of directors
or shareholder; change provision for selection, resignation, or
removal of its directors or officers or both; or change provisions
for amending its bylaws;
5. prevent commencement of a proceeding by or against the corporation
in its corporate name;
6.
abate or suspend a proceeding pending by or against the corporation
on the effective date of dissolution; or
7. terminate the authority of the registered agent of the corporation.
(z) RECORDS
(1) Corporate
Records.
(A)
A corporation shall keep as permanent records minutes of all meetings
of its shareholder and board of directors, a record of all actions
taken by the shareholder or board of directors without a meeting,
and a record of all actions taken by a committee of the board of
directors in place of the board of directors on behalf of the corporation.
(B) A corporation shall maintain appropriate accounting records.
(C) A corporation or its agent shall maintain a record of its shareholder's
name and address.
(D)
A corporation shall maintain its records in written form or in another
form capable of conversion into written form within a reasonable
time.
(E) A corporation shall keep a copy of the following records at
its principal office:
1.
its articles or restate articles of incorporation and all amendments
to them currently in effect;
2. its bylaws or restated bylaws and all amendments to them currently
in effect;
3. the minutes of all shareholder meetings, and records of all
action taken by shareholder without a meeting, for the past three
years;
4. all written communications to shareholder generally within
the past three years, including financial statements furnished
for the past three years under section (z)(4);
5. a list of the names and business addresses of its current directors
and officers; and
6.
its most recent annual report delivered to the Tribal Council
Secretary under section (z)(5).
(2) Inspection
of Records by Shareholder.
(A)
Subject to section (z)(3), a shareholder of a corporation is entitled
to inspect and copy, during regular business hours at the corporation's
principal office, any of the records of the corporation described
in section (z)(1)(E) if it gives the corporation written notice
of its demand at least five business days before the date on which
it wishes to inspect and copy.
(B) A shareholder of a corporation is entitled to inspect and
copy during regular business hours at a reasonable location specified
by the corporation, any of the following records of the corporation
if the shareholder gives the corporation written notice of its
demand at least five business days before the date on which it
wishes to inspect and copy:
1.
excerpts from minutes of any meeting of the board of directors,
records of any action of a committee of the board of directors
while acting in place of the board of directors on behalf of
the corporation, minutes of any meeting of the shareholder,
and records of action taken by the shareholder or board of directors
without a meeting, to the extent not subject to inspection under
section (z)(2)(A);
2.
accounting records of the corporation; and
3. the shareholder record.
(C)
A shareholder may inspect and copy the records identified in subsection
(B) only if:
1.
the demand is made in good faith and for a proper purpose;
2. the shareholder describes with reasonable particularity its
purpose and the records wished to be inspected; and
3.
the records are directly connected with the stated purpose.
(D)
The right of inspection granted by this section may not be abolished
or limited by a corporation's articles of incorporation or bylaws.
(E)
This section does not effect:
1.
the right of a shareholder to inspect records provided under
this Ordinance; or
2.
the power of the Tribal Court, independently of this Ordinance,
to compel the production of corporate records for examination.
(3)
Scope of Inspection Right.
(A)
A shareholder's agent or attorney has the same inspection and
copying rights as the shareholder represented;
(B)
The right to copy records under section (z)(2) includes, if reasonable,
the right to receive copies made by photographic, xerographic,
or other means.
(4)
Financial Statements for Shareholder.
(A)
A corporation shall furnish its shareholder annual financial statements,
which may be consolidated or combined statements of the corporation
and one or more of its subsidiaries, as appropriate, that include
a balance sheet as of the end of the fiscal year, an income statement
for that year, and a statement of changes in shareholder's equity
for the year unless that information appears elsewhere in the
financial statements. If financial statements are prepared for
the corporation on the basis of generally accepted accounting
principles, the annual financial statements must also be prepared
on that basis.
(B)
If the annual financial statements are reported upon by a public
accountant, his or her report must be accompanied by a statement
of the president or the person responsible for the corporation's
accounting records:
1.
stating his reasonable belief whether the statements were prepared
on the basis of generally accepted accounting principles and,
if not, describing the basis of preparation; and
2. describing any respects in which the statements were not
prepared on a basis of accounting consistent with the statements
prepared for the preceding year.
(C)
A corporation shall provide the shareholder with the annual financial
statements within 120 days after the close of each fiscal year.
Thereafter, on written request from a shareholder.
(5)
Other Reports to Shareholder. If a corporation indemnifies
or advances expenses to a director under section (s)(2), (3) (4)
or (5) in connection with a proceeding by or the right of the corporation,
the corporation shall report the indemnification or advance in writing
to the shareholder with or before the notice of the next shareholder's
meeting.
(6)
Annual Report for Tribal Council.
(A)
Each corporation chartered under this Ordinance shall deliver
to the Tribal Council Secretary for filing an annual report that
sets forth:
1.
the name of the corporation;
2. the address of its registered office and the name of its
registered agent at that office on Grand Ronde Tribal lands;
3.
the address of its principal office;
4. the names and addresses of its directors and principal officers;
and
5. a brief description of the nature of its business.
(B)
Information in the annual report must be current as of the date
the annual report is executed on behalf of the corporation.
(C)
The first annual report must be delivered to the Tribal Council
Secretary between January 1 and April 1 of the year following
the calendar year in which the corporation was chartered. Subsequent
annual reports must be delivered to the Tribal Council Secretary
between January 1 and April 1 of the following calendar years.
(aa) APPLICATION TO CORPORATIONS EXISTING BEFORE ENACTMENT
This Ordinance shall apply to all governmental corporations, including
such corporations in existence before the enactment of this Ordinance,
provided however, that this Ordinance shall not apply to any
Non-Profit governmental corporations. All actions taken before the enactment
of this Ordinance by governmental corporations established before the
enactment this Ordinance shall be deemed to have been in accordance
with and not in violation of this Ordinance. To the extent the articles
of incorporation, bylaws or other corporate governance documents of
governmental corporations established prior to enactment of this Ordinance
are inconsistent with this Ordinance, Tribal Council, shareholders,
and the boards of directors of such governmental corporations shall
diligently proceed to bring such corporate documents into compliance
with this Ordinance, but in no event later than December 31, 2000.
I certify this to be a true copy of the Confederated Tribes of the Grand
Ronde Community of Oregon Governmental Corporations Ordinance.
_____________________________________
June Sell-Sherer, Tribal Council Secretary
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