2007 Oregon Code - Chapter 65 :: Chapter 65 - Nonprofit Corporations
Chapter 65 Nonprofit
Corporations
2007 EDITION
NONPROFIT CORPORATIONS
CORPORATIONS AND PARTNERSHIPS
GENERAL PROVISIONS
(Definitions)
65.001 Definitions
(Filing Documents)
65.004 Filing
requirements
65.007 Filing,
service, copying and certification fees
65.011 Effective
time and date of document
65.014 Correcting
filed document
65.016 Forms;
rules
65.017 Filing
duty of Secretary of State
65.021 Appeal
from Secretary of States refusal to file document
65.024 Evidentiary
effect of certified copy of filed document or secretarys certificate
65.027 Certificate
of existence or authorization
(Secretary of State)
65.031 Powers
(Notice)
65.034 Notice
(Private Foundations)
65.036 Private
foundations
(Judicial Relief)
65.038 Judicial
relief
(Attorney General)
65.040 Notice
to Attorney General; effect of failure to notify
(Religious Corporations)
65.042 Religious
corporations; constitutional protections
INCORPORATION
65.044 Incorporators
65.047 Articles
of incorporation
65.051 Incorporation
65.054 Liability
for preincorporation transactions
65.057 Organization
of corporation
65.061 Bylaws
65.064 Emergency
bylaws and powers
65.067 Corporation
sole
PURPOSES AND POWERS
65.074 Purposes
65.077 General
powers
65.081 Emergency
powers
65.084 Challenge
of corporate authority; remedy
NAME
65.094 Corporate
name
65.097 Reserved
name
65.101 Registered
name
OFFICE AND AGENT
65.111 Registered
office and registered agent
65.114 Change
of registered office or registered agent
65.117 Resignation
of registered agent
65.121 Service
on the corporation
MEMBERS AND MEMBERSHIPS
(Admission of Members)
65.131 Admission
65.134 Consideration
65.137 No
requirement for members
(Members Rights and Obligations)
65.144 Differences
in rights and obligations of members
65.147 Transfers
65.151 Members
liability to third parties
65.154 Members
liability for dues, assessments and fees
65.157 Creditors
action against member
(Resignation and Termination)
65.164 Resignation
65.167 Termination,
expulsion or suspension
65.171 Acquiring
memberships
(Derivative Suits)
65.174 Derivative
suits
(Delegates)
65.177 Delegates
MEMBERSHIP MEETINGS AND VOTING
(Meetings and Action Without Meetings)
65.201 Annual
and regular meetings
65.204 Special
meeting
65.207 Court-ordered
meeting; attorney fees
65.211 Action
without meeting
65.214 Notice
of meeting
65.217 Waiver
of notice
65.221 Record
date
65.222 Action
by written ballot
(Voting)
65.224 Members
list for meeting; attorney fees
65.227 Voting
entitlement of members
65.231 Proxies
65.234 Adjournment
65.237 Corporations
acceptance of votes
65.241 Quorum
requirements
65.244 Voting
requirements
65.247 Cumulative
voting for directors
65.251 Other
methods of electing directors
(Voting Agreements)
65.254 Voting
agreements
DIRECTORS AND OFFICERS
(Board of Directors)
65.301 Requirement
for and duties of board
65.304 Qualifications
of directors
65.307 Number
of directors
65.311 Election,
designation and appointment of directors
65.314 Terms
of directors generally
65.317 Staggered
terms for directors
65.321 Resignation
of directors
65.324 Removal
of directors elected by members or directors
65.327 Removal
of directors by judicial proceeding
65.331 Removal
of designated or appointed directors
65.334 Vacancy
on board
65.335 Compensation
of directors
(Meetings and Action of Board)
65.337 Regular
and special meetings
65.341 Action
without meeting
65.344 Call
and notice of meetings
65.347 Waiver
of notice
65.351 Quorum
and voting
65.354 Committees
(Standards of Conduct)
65.357 General
standards for directors
65.361 Director
conflict of interest
65.364 Loans
to or guarantees for directors and officers
65.367 Liability
for unlawful distributions
65.369 Liability
of qualified directors
(Officers)
65.371 Required
officers
65.374 Duties
and authority of officers
65.377 Standards
of conduct for officers
65.381 Resignation
and removal of officers
65.384 Contract
rights of officers
(Indemnification)
65.387 Definitions
for ORS 65.387 to 65.414
65.391 Authority
to indemnify
65.394 Mandatory
indemnification
65.397 Advance
for expenses
65.401 Court-ordered
indemnification
65.404 Determination
and authorization of indemnification
65.407 Indemnification
of officers, employees and agents
65.411 Insurance
65.414 Application
of ORS 65.387 to 65.411
AMENDMENT OF ARTICLES OF INCORPORATION AND
BYLAWS
(Amendment of Articles of Incorporation)
65.431 Authority
65.434 Amendment
by directors
65.437 Amendment
by board of directors and members
65.441 Class
voting by members on amendments
65.447 Articles
of amendment
65.451 Restated
articles of incorporation
65.454 Amendment
pursuant to court order
65.457 Effect
of amendment and restatement
(Amendment of Bylaws)
65.461 Amendment
by directors
65.464 Amendment
by directors and members
65.467 Approval
by third persons
MERGER
65.481 Approval
of plan of merger
65.484 Limitations
on mergers by public benefit or religious corporations
65.487 Action
on plan by board, members and third persons
65.491 Articles
of merger
65.494 Effect
of merger
65.497 Merger
with foreign corporation
65.501 Effect
of merger on bequests, devises and gifts
65.504 Merger
with business corporation
65.531
65.534
DISTRIBUTIONS
65.551 Prohibited
distributions
65.554 Authorized
distributions
DISSOLUTION
(Voluntary Dissolution)
65.621 Dissolution
by incorporators
65.624 Dissolution
by directors, members and third persons
65.627 Notices
to Attorney General
65.631 Articles
of dissolution
65.634 Revocation
of dissolution
65.637 Effect
of dissolution
65.641 Known
claims against dissolved corporation
65.644 Unknown
claims against dissolved corporation
(Administrative Dissolution)
65.647 Grounds
for administrative dissolution
65.651 Procedure
for and effect of administrative dissolution
65.654 Reinstatement
following administrative dissolution
65.657 Appeal
from denial of reinstatement
(Judicial Dissolution)
65.661 Grounds
for judicial dissolution
65.664 Procedure
for judicial dissolution
65.667 Receivership
or custodianship
65.671 Judgment
of dissolution
(Disposition of Assets)
65.674 Deposit
with Department of State Lands
FOREIGN CORPORATIONS
(Authority to Transact Business)
65.701 Authority
to transact business required
65.704 Consequences
of transacting business without authority
65.707 Application
for authority to transact business
65.711 Amendment
to application for authority
65.714 Effect
of authority
65.717 Corporate
name of foreign corporation
65.721 Registered
office and registered agent of foreign corporation
65.724 Change
of registered office or registered agent of foreign corporation
65.727 Resignation
of registered agent of foreign corporation
65.731 Service
on foreign corporation
(Withdrawal)
65.734 Withdrawal
of foreign corporation
(Administrative Revocation of Authority)
65.737 Grounds
for administrative revocation
65.741 Procedure
for and effect of administrative revocation
65.744 Appeal
from administrative revocation
65.747 Reinstatement
following administrative revocation
(Judicial Revocation of Authority)
65.751 Grounds
for judicial revocation
65.754 Procedure
for judicial revocation of authority
65.757 Judgment
of revocation
RECORDS AND REPORTS
(Records)
65.771 Corporate
records
65.774 Inspection
of records by members
65.777 Scope
of inspection right
65.781 Court-ordered
inspection; attorney fees
65.782 Limitations
on use of membership list
(Reports)
65.784 Report
to members and other persons of indemnification
65.787 Annual
report
TRANSFER OF ASSETS OF HOSPITAL
65.800 Definitions
for ORS 65.803 to 65.815
65.803 Hospitals
operated by nonprofit corporation; transfer of assets; approval by Attorney
General
65.805 Notice
to Attorney General; fee; trade secrets
65.807 Public
hearing; waiver; notice
65.809 Time
for Attorney General decision; nature of decision; appeal
65.811 Disapproval
of proposed transfer of assets
65.813 Consultants;
cost; rules; fee
65.815 Rules
CEMETERIES AND CREMATORIES
65.855 Lands
of cemetery or crematory corporation; exemption from execution, taxation and
condemnation
65.860 Revenues;
restrictions on uses of revenue
65.865 Selling
land unsuited for burials
65.870 Burial
lots or space; use, exemption from taxation, execution and liens; lien for
purchase price of gravestone
65.875 Recording
plan; power to improve and regulate grounds
MISCELLANEOUS
65.951 Short
title
65.954 Reservation
of power to amend or repeal
65.957 Application
to existing domestic corporations; exemptions
65.959 Application
to corporations relating to condominiums, planned communities or timeshare
estates
65.961 Application
to qualified foreign corporations
65.964 Saving
provisions
65.967 Severability
PENALTY
65.990 Penalty
for signing false document
GENERAL PROVISIONS
(Definitions)
65.001
Definitions. As used in this
chapter, unless otherwise specifically provided:
(1) Anniversary means that day each year
exactly one or more years after the date of filing by the Office of the
Secretary of State of the articles of incorporation in the case of a domestic
corporation or the date of filing by the Office of the Secretary of State of an
application for authority to transact business in the case of a foreign
corporation. An event which would otherwise cause an anniversary to fall on
February 29 shall be deemed to have occurred on February 28.
(2) Approved by the members or approval
by the members means approved or ratified by the members entitled to vote on
the issue through either:
(a) The affirmative vote of a majority of
the votes of such members represented and voting at a duly held meeting at
which a quorum is present or the affirmative vote of such greater proportion
including the votes of any required proportion of the members of any class as
the articles, bylaws or this chapter may provide for specified types of member
action; or
(b) A written ballot or written consent in
conformity with this chapter.
(3) Articles of incorporation or articles
include amended and restated articles of incorporation and articles of merger,
and corrections thereto.
(4) Board or board of directors means
the individual or individuals vested with overall management of the affairs of
the domestic or foreign corporation, irrespective of the name by which the
individual or individuals are designated, except that no individual or group of
individuals are the board of directors because of powers delegated to that
individual or group pursuant to ORS 65.301.
(5) Bylaws means the code or codes of
rules, other than the articles adopted pursuant to this chapter or the laws
governing a foreign corporation for the regulation or management of the affairs
of the domestic or foreign corporation, irrespective of the name or names by
which such rules are designated.
(6) Class means a group of memberships
which have the same rights with respect to voting, dissolution, redemption and
transfer. For the purpose of this section, rights shall be considered the same
if they are determined by a formula applied uniformly.
(7) Contact address means a mailing
address at which a person affiliated with the organization will receive and
transmit to the organization notices intended for the foreign or domestic
corporation when it is either not practical to send such notices to the
registered agent, or a duplicate notice is desirable. The contact address may
be the principal place of business, if any, or the business or residence
address of any person associated with the corporation or foreign corporation
who has consented to serve, but shall not be the address of the registered
agent.
(8) Corporation or domestic corporation
means a nonprofit corporation that is not a foreign corporation, and that is
incorporated under or subject to the provisions of this chapter.
(9) Delegates means those persons
elected or appointed to vote in a representative assembly for the election of a
director or directors or on other matters.
(10) Deliver includes mail.
(11) Directors means individuals
designated in the articles or bylaws or elected by the incorporators to act as
members of the board, and their successors.
(12) Distribution means the payment of a
dividend or any part of the income or profit of a corporation to its members,
directors or officers, and does not include payment of value for property
received or services performed or payment of benefits in furtherance of the
corporations purposes.
(13) Domestic business corporation means
a for profit corporation incorporated under ORS chapter 60.
(14) Domestic limited liability company
means an entity that is an unincorporated association having one or more
members and that is organized under ORS chapter 63.
(15) Domestic professional corporation
means a corporation organized under ORS chapter 58 for the purpose of rendering
professional services and for the purposes provided under ORS chapter 58.
(16) Effective date of notice has the
meaning given that term in ORS 65.034.
(17) Employee does not include an
officer or director who is not employed by the corporation with compensation
for services beyond those encompassed by board membership.
(18) Entity includes a corporation,
foreign corporation, business corporation and foreign business corporation,
profit and nonprofit unincorporated association, corporation sole, business
trust, estate, partnership, trust, two or more persons having a joint or common
economic interest, any state, the
(19) File, filed or filing means
reviewed, accepted and entered in the Office of the Secretary of State.
(20) Foreign business corporation means
a for profit corporation incorporated under the laws of a state other than this
state.
(21) Foreign corporation means a
corporation organized under a law other than the law of this state which would
be a nonprofit corporation if formed under the laws of this state.
(22) Foreign limited liability company
means an entity that is an unincorporated association organized under the laws
of a state other than this state, under the laws of a federally recognized
Indian tribe or under the laws of a foreign country and that is organized under
a statute under which an association may be formed that affords to each of its
members limited liability with respect to liabilities of the entity.
(23) Foreign professional corporation
means a professional corporation organized under the laws of a state other than
this state.
(24) Governmental subdivision includes
an authority, county, district and municipality.
(25) Includes denotes a partial
definition.
(26) Individual means a natural person
and includes the guardian of an incompetent individual.
(27) Means denotes an exhaustive
definition.
(28)(a) Member means any person or
persons entitled, pursuant to a domestic or foreign corporations articles or
bylaws, without regard to what a person is called in the articles or bylaws, to
vote on more than one occasion for the election of a director or directors.
(b) A person is not a member by virtue of
any of the following rights the person has:
(A) As a delegate;
(B) To designate or appoint a director or
directors;
(C) As a director; or
(D) As a holder of an evidence of
indebtedness issued or to be issued by the corporation.
(c) Notwithstanding the provisions of
paragraph (a) of this subsection, a person is not a member if the persons
membership rights have been eliminated as provided in ORS 65.164 or 65.167.
(29) Membership refers to the rights and
obligations a member or members, as defined in this chapter, have pursuant to
this chapter.
(30) Mutual benefit corporation means a
domestic corporation which either is formed as a mutual benefit corporation
pursuant to ORS 65.044 to 65.067, is designated a mutual benefit corporation by
a statute or does not come within the definition of public benefit or religious
corporation.
(31) Nonprofit corporation means mutual
benefit corporations, public benefit corporations and religious corporations.
(32) Notice has the meaning given that
term in ORS 65.034.
(33) Office when used to refer to the
administrative unit directed by the Secretary of State, means the Office of the
Secretary of State.
(34) Person includes any individual or
entity.
(35) Principal office means the place,
in or out of this state, so designated in the most recent annual report filed
pursuant to ORS 65.787 or if no annual report is on file, as designated in the
articles of incorporation, or the application for authority to transact
business in this state, which shall be the place where the principal executive
offices of a domestic or foreign corporation are located, or if none, the
contact address.
(36) Proceeding includes civil,
criminal, administrative and investigatory action.
(37) Public benefit corporation means a
domestic corporation which:
(a) Is formed as a public benefit
corporation pursuant to ORS 65.044 to 65.067, is designated as a public benefit
corporation by a statute, is recognized as tax exempt under section 501 (c) (3)
of the Internal Revenue Code of 1986 or is otherwise organized for a public or
charitable purpose;
(b) Is restricted so that on dissolution
it must distribute its assets to an organization organized for a public or
charitable purpose, a religious corporation, the United States, a state or a
person which is recognized as exempt under section 501 (c) (3) of the Internal
Revenue Code of 1986; and
(c) Does not come within the definition of
religious corporation.
(38) Record date means the date
established under ORS 65.131 to 65.177 or 65.201 to 65.254 on which a
corporation determines the identity of its members and their membership rights
for the purposes of this chapter. The determinations shall be made as of the
time of close of transactions on the record date unless another time for doing
so is specified at the time the record date is fixed.
(39) Religious corporation means a
domestic corporation which is formed as a religious corporation pursuant to ORS
65.044 to 65.067, is designated a religious corporation by a statute or is
organized primarily or exclusively for religious purposes.
(40) Secretary, when used in the context
of a corporate official, means the corporate officer to whom the board of
directors has delegated responsibility under ORS 65.371 for preparing the
minutes of the directors and members meetings and for authenticating the
records of the corporation.
(41) State when referring to a part of
the
(42) Uncompensated officer means an
individual who serves in an office without compensation for personal service.
Payment solely for actual expenses in performing duties of the officer or a
stipend which is paid only to compensate the average expenses incurred over the
course of a year shall not be deemed to be compensation.
(43)
(44) Vote includes authorization by
written ballot and written consent, where permitted.
(45) Voting power means the total number
of votes entitled to be cast on the issue at the time the determination of voting
power is made, excluding a vote which is contingent upon the happening of a
condition or event which has not occurred at the time. Where a class is
entitled to vote as a class for directors, the determination of voting power of
the class shall be based on the percentage of the number of directors the class
is entitled to elect out of the total number of authorized directors. [1989
c.1010 §14; 1991 c.231 §1; 2001 c.315 §35; 2005 c.107 §4]
(Filing
Documents)
65.004
Filing requirements. (1) A
document must satisfy the requirements of this section, except as any other
provision of this chapter modifies these requirements, to be entitled to filing
by the Secretary of State under authority of this chapter.
(2) The document must be one required or
permitted to be filed in the Office of the Secretary of State.
(3) The document shall contain the
information required by this chapter. It may contain other information as well.
(4) The document must be legible.
(5) The document must be written in the
alphabet used to write the English language, but may include Arabic or Roman
numerals and incidental punctuation. The certificate of existence required of
foreign corporations need not be in English if accompanied by a reasonably
authenticated English translation.
(6) The document must be executed:
(a) By a fiduciary, receiver or trustee,
if the corporation is in the hands of a receiver, trustee or other
court-appointed fiduciary;
(b) By an incorporator, if directors have
not been selected or its execution is before the organizational meeting;
(c) By the person specified in any section
of this chapter that required the document be filed; or
(d) By the chairperson of the board of
directors of a domestic or foreign corporation, its president or otherwise by
another of its officers.
(7) The document shall state beneath or
opposite the signature the name of the person and the capacity in which the
person signs. The document may, but is not required to, contain:
(a) The corporate seal;
(b) An attestation by the secretary or an
assistant secretary; or
(c) An acknowledgment, verification or
proof.
(8) If the Secretary of State has
prescribed a mandatory form for a document under ORS 65.016, the document must
be in or on the prescribed form.
(9) The document must be delivered to the
Office of the Secretary of State for filing and must be accompanied by the
correct filing fee.
(10) A document is deemed filed or
effective only as provided in ORS 56.080, 65.001, 65.011, 65.014 and 65.017. [Amended
by 1999 c.486 §10]
65.007
Filing, service, copying and certification fees. The Secretary of State shall collect the
fees described in ORS 56.140 for each document delivered for filing under this
chapter and for process served on the secretary under this chapter. The
secretary may collect the fees described in ORS 56.140 for copying any public
record under this chapter, certifying the copy or certifying to other facts of
record under this chapter. [1989
c.1010 §§5,5a; 1991 c.132 §5; 1999 c.652 §12]
65.011
Effective time and date of document. (1) Except as provided in subsection (2) of this section, ORS 56.080
and 65.014, a document accepted for filing after review is effective:
(a) On the date it is filed by the
Secretary of State; and
(b) At the time, if any, specified in the
document as its effective time or at 12:01 a.m. on that date if no effective
time is specified.
(2) If a document specifies a delayed
effective time and date, the document becomes effective at the time and date
specified. If a document specifies a delayed effective date but no time, the
document becomes effective at 12:01 a.m. on that date. A delayed effective date
for a document may not be later than the 90th day after the date it is filed. [1989
c.1010 §6]
65.014
Correcting filed document.
(1) A domestic or foreign corporation may correct a document filed by the
Secretary of State other than an annual report, if the document:
(a) Contains an incorrect statement; or
(b) Was defectively executed, attested,
sealed, verified or acknowledged.
(2) Errors in annual reports may be
corrected as provided in ORS 65.787.
(3) A domestic or foreign corporation
seeking to correct a document shall deliver the articles of correction to the
Office of the Secretary of State for filing. The articles shall include the following:
(a) A description of the incorrect
document, including its filing date or a copy of the document;
(b) A description of the incorrect
statement and the reason it is incorrect or a description of the manner in
which the execution, attestation, seal, verification or acknowledgment is
defective; and
(c) A correction of the incorrect
statement or defective execution, attestation, seal, verification or
acknowledgment.
(4) Articles of correction are effective
on the effective date of the document they correct except as to persons relying
on the uncorrected document and adversely affected by the correction. As to
those persons, articles of correction are effective when filed by the Secretary
of State.
(5) An incorrect document with a delayed
effective date may also be corrected by withdrawal and new filing pursuant to
the provisions of ORS 56.080. [1989 c.1010 §7]
65.016
Forms; rules. Upon request,
the Secretary of State may furnish forms for documents required or permitted to
be filed by this chapter. The Secretary of State may by rule require the use of
the forms. [1989 c.1010 §4; 1995 c.215 §13]
65.017
Filing duty of Secretary of State. (1) If a document delivered to the Office of the Secretary of State
for filing satisfies the requirements of ORS 65.004, the Secretary of State
shall file it.
(2) The Secretary of State files a
document by indicating thereon that it has been filed by the Secretary of State
and the date of filing. The time of filing shall be deemed to be 12:01 a.m. on
that date. After filing a document, except those referred to in ORS 65.114,
65.671, 65.674, 65.724 and 65.787, the Secretary of State shall return an
acknowledgment of filing to the domestic or foreign corporation or its
representative.
(3) If the Secretary of State refuses to
file a document, the Secretary of State shall return it to the domestic or
foreign corporation or its representative within 10 business days after the
document was received by the Office of the Secretary of State, together with a
brief written explanation of the reason or reasons for the refusal.
(4) The Secretary of States duty to file
documents under this section is ministerial. The Secretary of State is not
required to verify or inquire into the legality or truth of any matter included
in any document delivered to the Office of the Secretary of State for filing.
Except as provided elsewhere in this chapter, the Secretary of States filing
or refusing to file a document does not:
(a) Affect the validity or invalidity of
the document in whole or in part except as provided in ORS 65.051; or
(b) Relate to the correctness or
incorrectness of information contained in the document.
(5) The Secretary of States refusal to
file a document does not create a presumption that the document is invalid or
that information contained in the document is incorrect. [1989 c.1010 §8; 1999
c.486 §11]
65.021
Appeal from Secretary of States refusal to file document. If the Secretary of State refuses to file a
document delivered to the Office of Secretary of State for filing, the domestic
or foreign corporation, in addition to any other legal remedy which may be
available, shall have the right to appeal from such final order pursuant to the
provisions of ORS 183.484. [1989 c.1010 §9]
65.024
Evidentiary effect of certified copy of filed document or secretarys
certificate. (1) A
certificate bearing the Secretary of States signature, which may be in
facsimile, and attached to a copy of a document is conclusive evidence that the
original document or a facsimile thereof is on file with the Office of the
Secretary of State.
(2) The following shall be received in all
courts, public offices and official bodies of this state as prima facie
evidence of the facts stated therein, unless a greater evidentiary effect is
provided in ORS 65.027 and 65.051 or elsewhere in this chapter or it is shown
that the document was thereafter corrected or withdrawn from the files of the
Office of the Secretary of State:
(a) All facts stated in certificates
issued by the Office of the Secretary of State with respect to its business
registry functions including a certificate of compliance or noncompliance of a
document with filing requirements or other provisions of law administered by
the Office of the Secretary of State, or a certificate as to the existence or
nonexistence of facts which would appear from presence or absence of documents
in the files of the Office of the Secretary of State; and
(b) All facts stated in documents
certified as filed by the Office of the Secretary of State, but only to the
extent the specific items were required to be included in the document by this
chapter or ORS chapter 61 (1987 Replacement Part). [1989 c.1010 §10]
65.027
Certificate of existence or authorization. (1) Anyone may apply to the Office of the Secretary of State to
furnish a certificate of existence for a domestic corporation or a certificate
of authorization for a foreign corporation.
(2) A certificate of existence or
authorization, when issued, means that:
(a) The domestic corporations corporate
name or the foreign corporations corporate name is of active record in this
state;
(b) The domestic corporation is duly
incorporated under the law of this state or the foreign corporation is
authorized to transact business in this state;
(c) All fees payable to the Secretary of
State under this chapter have been paid, if nonpayment affects the existence or
authorization of the domestic or foreign corporation;
(d) An annual report if required by ORS
65.787 has been filed by the Secretary of State within the preceding 14 months;
and
(e) Articles of dissolution or an
application for withdrawal have not been filed by the Secretary of State.
(3) A person may apply to the Secretary of
State to issue a certificate covering any fact of record.
(4) Subject to any qualification stated in
the certificate, a certificate of existence or authorization issued by the
Secretary of State may be relied upon as conclusive evidence that the domestic
or foreign corporation is in existence or is authorized to transact business in
this state. [1989 c.1010 §11]
(Secretary of
State)
65.031
Powers. The Secretary of
State has the power reasonably necessary to perform the duties required of the
Office of the Secretary of State by this chapter. [1989 c.1010 §13]
(Notice)
65.034
Notice. (1) Notice may be
oral or written unless otherwise specified for a particular kind of notice.
(2) Notice may be communicated in person,
by telephone, telegraph, teletype or other form of wire or wireless
communication, or by mail or private carrier, including publication in a
newsletter or similar document mailed to a members or directors address. If
these forms of personal notice are impracticable, notice may be communicated by
a newspaper of general circulation in the area where the meeting is to be held,
or by radio, television or other form of public broadcast communication.
(3) Written notice by a domestic or
foreign corporation to its member, if in a comprehensible form, is effective
when mailed if it is mailed postpaid and is correctly addressed to the members
address shown in the corporations current records of members.
(4) Oral notice is effective when
communicated if communicated in a comprehensible manner.
(5) Except as provided in subsection (3)
of this section, personal written notice, if in a comprehensible form, is
effective at the earliest of the following:
(a) When received;
(b) Five days after its postmark, if
mailed by
(c) On the date shown on the return
receipt, if sent by registered or certified mail, return receipt requested, and
the receipt is signed by or on behalf of the addressee;
(d) Thirty days after its deposit in the
United States mail if mailed correctly addressed and with other than first
class, registered or certified postage affixed; or
(e) The date specified by the articles of
incorporation or bylaws with respect to notice to directors.
(6)(a) Written notice is correctly
addressed to a member of a domestic or foreign corporation if addressed to the
members address shown in the corporations current list of members.
(b) A written notice or report delivered
as part of a newsletter, magazine or other publication sent to members shall
constitute a written notice or report if addressed or delivered to the members
address shown in the corporations current list of members, or in the case of
members who are residents of the same household and who have the same address
in the corporations current list of members, if addressed or delivered to one
of such members, at the address appearing on the current list of members.
(c) Written notice is correctly addressed
to a domestic or foreign corporation authorized to transact business in this
state, other than in its capacity as a member, if addressed to its registered
agent or, if none is of record, to its principal office shown in its most
recent annual report or, if none, in the articles of incorporation or its
application for a certificate of authority to do business.
(7) If ORS 65.214 or any other provision
of this chapter prescribes different notice requirements for particular
circumstances, those requirements govern. If articles or bylaws prescribe
different notice requirements, not less stringent than the provisions of this
section or other provisions of this chapter, those requirements govern. [1989
c.1010 §15]
(Private
Foundations)
65.036
Private foundations. Except
where otherwise determined by a court of competent jurisdiction, a corporation
which is a private foundation as defined in section 509 of the Internal Revenue
Code of 1986 shall:
(1) Distribute such amounts for each
taxable year at such time and in such manner as not to subject the corporation
to tax under section 4942 of the Internal Revenue Code of 1986;
(2) Not engage in any act of self-dealing
as defined in section 4941(d) of the Internal Revenue Code of 1986;
(3) Not retain any excess business
holdings as defined in section 4943(c) of the Internal Revenue Code of 1986;
(4) Not make any investments in such a
manner as to subject the corporation to taxes on investments which jeopardize
charitable purposes as provided in section 4944 of the Internal Revenue Code of
1986; and
(5) Not make any taxable expenditures as
defined in section 4945(d) of the Internal Revenue Code of 1986. [1989 c.1010 §16]
(Judicial
Relief)
65.038
Judicial relief. (1) If for
any reason it is impractical or impossible for any corporation to call or
conduct a meeting of its members, delegates or directors, or otherwise obtain
their consent in the manner prescribed by its articles, bylaws or this chapter,
then upon petition of a director, officer, delegate, member or the Attorney
General, the circuit court for the State of Oregon for the county in which the
principal office designated on the last filed annual report, articles or
application for authority to transact business is located, or if none, within
Oregon, Marion County, may order that such a meeting be called. The court may
also order that a written ballot or other form of obtaining the vote of
members, delegates or directors be authorized, in such a manner as the court
finds fair and equitable under the circumstances.
(2) The court shall, in an order issued
pursuant to this section, provide for a method of notice reasonably designed to
give actual notice to all persons who would be entitled to notice of a meeting
held pursuant to the articles, bylaws and this chapter, whether or not the
method results in actual notice to all such persons or conforms to the notice
requirements that would otherwise apply. In a proceeding under this section,
the court may determine who are the members or directors.
(3) The order issued pursuant to this
section may for good cause shown dispense with any requirement relating to the
holding of or voting at meetings or obtaining votes, including any requirement
that would otherwise be imposed by the articles, bylaws or this chapter as to
quorum or as to the number or percentage of votes needed for approval of an
act.
(4) Whenever practical, any order issued
pursuant to this section shall limit the subject matter of meetings or other
forms of consent judicially authorized to those items, including amendments to
the articles or bylaws, the resolution of which will or may enable the
corporation to continue managing its affairs without further resort to this
section. An order under this section may also authorize the obtaining of
whatever votes and approvals are necessary for the dissolution, merger or sale
of assets.
(5) Any meeting or other method of obtaining
the vote of members, delegates or directors conducted pursuant to an order
issued under this section, and which complies with all the provisions of such
order, is for all purposes a valid meeting or vote, as the case may be, and
shall have the same force and effect as if it complied with every requirement
imposed by the articles, bylaws and this chapter. [1989 c.1010 §17]
(Attorney
General)
65.040
Notice to Attorney General; effect of failure to notify. (1) The Attorney General shall be given
notice of the commencement of any proceeding which ORS 65.038, 65.084, 65.207,
65.327, 65.661 or 65.751 or any other provision of this chapter authorize the
Attorney General to bring but which has been commenced by another person.
(2) Whenever any provision of this chapter
requires that notice be given to the Attorney General before or after
commencing a proceeding or permits the Attorney General to commence a
proceeding:
(a) If no proceeding has been commenced,
the Attorney General may take appropriate action including, but not limited to,
seeking injunctive relief; or
(b) If a proceeding has been commenced by
a person other than the Attorney General, the Attorney General, as of right,
may intervene in such proceeding. [1989 c.1010 §18]
(Religious
Corporations)
65.042
Religious corporations; constitutional protections. If religious doctrine or practice governing
the affairs of a religious corporation is inconsistent with the provisions of
this chapter on the same subject, the religious doctrine or practice shall
control to the extent required by the Constitution of the
INCORPORATION
65.044
Incorporators. One or more
individuals 18 years of age or older, a domestic or foreign corporation, a
partnership or an association may act as incorporators of a corporation by
delivering articles of incorporation to the Secretary of State for filing. [1989
c.1010 §20]
65.047
Articles of incorporation.
(1) The articles of incorporation formed pursuant to this chapter subsequent to
October 3, 1989, shall set forth:
(a) A corporate name for the corporation
that satisfies the requirements of ORS 65.094;
(b) One of the following statements or
words of similar import:
(A) This corporation is a public benefit
corporation;
(B) This corporation is a mutual benefit
corporation; or
(C) This corporation is a religious
corporation;
(c) The address, including street and
number, of the corporations initial registered office and the name of its
initial registered agent at that location;
(d) The name and address of each
incorporator;
(e) An alternate corporate mailing address
which shall be that of the principal office, as defined in ORS 65.001, to which
notices, as required by this chapter, may be mailed until the principal office
of the corporation has been designated by the corporation in its annual report;
(f) Whether or not the corporation will
have members as that term is defined in this chapter; and
(g) Provisions regarding the distribution
of assets on dissolution.
(2) The articles of incorporation may set
forth:
(a) The names and addresses of the initial
directors;
(b) Provisions regarding:
(A) The purpose or purposes for which the
corporation is organized;
(B) Managing and regulating the affairs of
the corporation;
(C) Defining, limiting and regulating the
powers of the corporation, its board of directors, and members or any class of
members; and
(D) The characteristics, qualifications,
rights, limitations and obligations attaching to each or any class of members;
(c) A provision eliminating or limiting
the personal liability of a director or uncompensated officer to the
corporation or its members for monetary damages for conduct as a director or
officer, provided that no such provision shall eliminate or limit the liability
of a director or officer for any act or omission occurring prior to the date
when such provision becomes effective, and such provision shall not eliminate
or limit the liability of a director or officer for:
(A) Any breach of the directors or
officers duty of loyalty to the corporation or its members;
(B) Acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law;
(C) Any unlawful distribution;
(D) Any transaction from which the
director or officer derived an improper personal benefit; and
(E) Any act or omission in violation of
ORS 65.361 to 65.367; and
(d) Any provision that under this chapter
is required or permitted to be set forth in the bylaws.
(3) The incorporator or incorporators must
sign the articles and before including the name of any individual as a director
shall state that they have obtained the consent of each director named to
serve.
(4) The articles of incorporation need not
set forth any of the corporate powers enumerated in this chapter but may
restrict them in order to meet federal tax code requirements or other purposes.
[1989 c.1010 §21]
65.051
Incorporation. (1) Unless a
delayed effective date is specified, the corporate existence begins when the
articles of incorporation are reviewed, accepted and filed by the Secretary of
State.
(2) The Secretary of States filing of the
articles of incorporation is conclusive proof that the incorporators satisfied
all conditions precedent to incorporation applicable at the time of
incorporation except as provided in ORS 56.080 or in a proceeding by the state
to cancel or revoke the incorporation or involuntarily dissolve the
corporation. [1989 c.1010 §22]
65.054
Liability for preincorporation transactions. All persons purporting to act as or on behalf of a corporation
organized or subject to the authority of this chapter, knowing there was no
incorporation under this chapter at the relevant time, may be held to be
jointly and severally liable for all liabilities created while so acting if,
under the circumstances, it is equitable to do so. [1989 c.1010 §23]
65.057
Organization of corporation.
(1) After incorporation:
(a) If initial directors are named in the
articles of incorporation, the initial directors shall hold an organizational
meeting at the call of a majority of the directors, with notice as provided in
ORS 65.344, to complete the organization of the corporation by appointing
officers, adopting bylaws and carrying on any other business brought before the
meeting.
(b) If initial directors are not named in
the articles, the incorporator or incorporators shall hold an organizational
meeting at the call of a majority of the incorporators with equivalent notice
to that specified in ORS 65.344:
(A) To complete the organization of the
corporation and to elect directors, unless the organization is a corporation
sole; or
(B) To elect a board of directors which
shall complete the organization of the corporation.
(2) Action required or permitted by this
chapter to be taken by incorporators or directors at an organizational meeting
may be taken without a meeting if the action taken is evidenced by one or more
written consents describing the action taken and signed by each incorporator or
director, in accordance with the procedures of ORS 65.341.
(3) An organizational meeting may be held
in or out of this state. [1989 c.1010 §24]
65.061
Bylaws. (1) The
incorporators or board of directors of a corporation, whichever completes the
organization of the corporation at its organizational meeting, shall adopt
initial bylaws for the corporation.
(2) The bylaws may contain any provision
for managing and regulating the affairs of the corporation that is not
inconsistent with law or the articles of incorporation. [1989 c.1010 §25]
65.064
Emergency bylaws and powers.
(1) Unless the articles provide otherwise, the board of directors of a
corporation may adopt, amend or repeal bylaws to be effective only in an
emergency as defined in subsection (4) of this section. The emergency bylaws,
which are subject to amendment or repeal by the members, may provide special
procedures necessary for managing the corporation during the emergency,
including:
(a) Procedures for calling a meeting of
the board of directors;
(b) Quorum requirements for the meeting;
and
(c) Designation of additional or
substitute directors.
(2) All provisions of the regular bylaws
consistent with the emergency bylaws remain effective during the emergency. The
emergency bylaws are not effective after the emergency ends.
(3) Corporate action taken in good faith
in accordance with the emergency bylaws binds the corporation. A corporate
director, officer, employee or agent shall not be liable for deviation from
normal procedures if the conduct was authorized by emergency bylaws adopted as
provided in this section.
(4) An emergency exists for purposes of
this section if a quorum of the corporations directors cannot readily be
assembled because of some present or imminent catastrophic event. [1989 c.1010 §26]
65.067
Corporation sole. (1) Any
individual may, in conformity with the constitution, canons, rules, regulations
and disciplines of any church or religious denomination, form a corporation
hereunder to be a corporation sole. Such corporation shall be a form of
religious corporation and will differ from other such corporations organized
hereunder only in that it shall have no board of directors, need not have
officers and shall be managed by a single director who shall be the individual
constituting the corporation and its incorporator or the successor of the
incorporator.
(2) The name of such corporation shall be
the same as the office within the church or religious denomination held by the
incorporator, and shall be followed by the words and successors, a corporation
sole.
(3) All of the provisions of ORS 65.044 to
65.067 shall apply to such corporation. If the corporation has no officers, the
director may perform any act required by or permitted by an officer in the same
manner and with the same effect as though such act were performed by one or
more officers of the corporation. [1989 c.1010 §27]
PURPOSES AND
POWERS
65.074
Purposes. (1) Every
corporation incorporated under this chapter has the purpose of engaging in any
lawful activity unless a more limited purpose is set forth in the articles of
incorporation.
(2) A corporation that is subject to
regulation under another statute of this state may not be incorporated under
this chapter if such organization is required to be organized under such other
statute. [1989 c.1010 §28]
65.077
General powers. Unless its
articles of incorporation provide otherwise, every corporation has perpetual
duration and succession in its corporate name and has the same powers as an
individual to do all things necessary or convenient to carry out its affairs,
including, without limitation, power to:
(1) Sue and be sued, complain and defend
in its corporate name.
(2) Have a corporate seal, which may be
altered at will, and to use it, or a facsimile of it, by impressing or affixing
or reproducing it in any other manner.
(3) Make and amend bylaws not inconsistent
with its articles of incorporation or with the laws of this state, for
regulating and managing the affairs of the corporation.
(4) Purchase, take by gift, devise or
bequest, receive, lease or otherwise acquire, and own, hold, improve, use and
otherwise deal with, real or personal property or any interest in property,
wherever located.
(5) Sell, convey, mortgage, pledge, lease,
exchange, transfer and otherwise dispose of all or any part of its property.
(6) Purchase, receive, subscribe for or
otherwise acquire, own, hold, vote, use, sell, mortgage, lend, pledge or
otherwise dispose of and deal in or with shares or other interests in or
obligations of any other entity.
(7) Make contracts and guarantees, incur
liabilities, borrow money, issue notes, bonds and other obligations, and secure
any of its obligations by mortgage or pledge of any of its property, franchises
or income.
(8) Lend money, invest and reinvest its
funds, and receive and hold real and personal property as security for
repayment, except as limited by ORS 65.364.
(9) Be a promoter, partner, member,
associate or manager of any partnership, joint venture, trust or other entity.
(10) Conduct its activities, locate
offices and exercise the powers granted by this chapter within or without this
state.
(11) Elect or appoint directors, officers,
employees, and agents of the corporation, define their duties and fix their
compensation, if any.
(12) Pay pensions and establish pension
plans, pension trusts and other benefit and incentive plans for any or all of
its current or former directors, officers, employees and agents.
(13) Unless otherwise provided in the
articles of incorporation, make donations not inconsistent with law for the
public welfare or for charitable, benevolent, religious, scientific or
educational purposes and for other purposes that further the corporate
interest.
(14) Impose dues, assessments, admission
and transfer fees upon its members.
(15) Establish conditions for admission of
members, admit members and issue memberships.
(16) Carry on a business.
(17) Do any other act, not inconsistent
with law, that furthers the activities and affairs of the corporation.
(18) Dissolve, merge or reorganize as
provided in this chapter. [1989 c.1010 §29]
65.081
Emergency powers. (1) During
an emergency defined in subsection (4) of this section, the board of directors
or a corporation may:
(a) Modify lines of succession to
accommodate the incapacity of any director, officer, employee or agent; or
(b) Relocate the principal office,
designate alternative principal offices or regional offices or authorize the
officers to do so.
(2) During an emergency defined in
subsection (4) of this section, unless emergency bylaws provide otherwise:
(a) Notice of a meeting of the board of
directors need be given only to those directors whom it is practicable to reach
and may be given in any practicable manner, including by publication or radio;
and
(b) One or more officers of the
corporation present at a meeting of the board of directors may be deemed to be
directors for purposes of the meeting, in order of the officers rank, and
within the same rank in order of seniority, as necessary to achieve a quorum.
(3) Corporate action taken in good faith
under this section to further the affairs of the corporation during an
emergency binds the corporation. A corporate director, officer, employee or
agent shall not be liable for deviation from normal procedures if the conduct
was authorized by emergency powers provided in this chapter.
(4) An emergency exists for purposes of
this section if a quorum of the corporations directors cannot readily be
assembled because of some present or imminent catastrophic event. [1989 c.1010 §30]
65.084
Challenge of corporate authority; remedy. (1) Except as provided in subsection (2) of this section, the validity
of corporate action may not be challenged on the ground that the corporation
lacks or lacked power to act.
(2) A corporations power to act may be
challenged:
(a) In a proceeding by a member or
members, a director or the Attorney General against the corporation to enjoin
the act;
(b) In a proceeding by the corporation,
directly, derivatively or through a receiver, a trustee or other legal
representative, including the Attorney General in the case of a public benefit
corporation, against an incumbent or former director, officer, employee or
agent of the corporation; or
(c) In a proceeding under ORS 65.664.
(3) In a proceeding under subsection
(2)(a) of this section to enjoin an unauthorized corporate act, the court may
enjoin or set aside the act, if equitable and if all affected persons are
parties to the proceeding, and may award damages for loss other than
anticipated profits suffered by the corporation or another party because of
enjoining the unauthorized act. [1989 c.1010 §31]
NAME
65.094
Corporate name. (1) A
corporate name may not contain language stating or implying that the
corporation is organized for a purpose other than that permitted by ORS 65.074
and the articles of incorporation.
(2) A corporate name shall not contain the
word cooperative or the phrase limited partnership.
(3) A corporate name shall be written in
the alphabet used to write the English language but may include Arabic and
Roman numerals and incidental punctuation.
(4) Except as authorized by subsection (5)
of this section, a corporate name shall be distinguishable upon the records of
the Office of the Secretary of State from any other corporate name,
professional corporate name, business corporate name, cooperative name, limited
partnership name, business trust name, reserved name, registered corporate name
or assumed business name of active record with the Office of the Secretary of State.
(5) The corporate name need not satisfy
the requirement of subsection (4) of this section if the applicant delivers to
the Office of the Secretary of State a certified copy of a final judgment of a
court of competent jurisdiction that finds that the applicant has a prior or
concurrent right to use the corporate name in this state.
(6) The provisions of this section do not
prohibit a corporation from transacting business under an assumed business
name.
(7) The provisions of this section do not:
(a) Abrogate or limit the law governing
unfair competition or unfair trade practices; or
(b) Derogate from the common law, the
principles of equity or the statutes of this state or of the
65.097
Reserved name. (1) A person
may apply to the Office of the Secretary of State to reserve a corporate name.
The application must set forth the name and address of the applicant and the
name proposed to be reserved.
(2) If the Secretary of State finds that
the corporate name applied for conforms to ORS 65.094, the Secretary of State
shall reserve the name for the applicant for a 120-day period, following which
the applicant may reapply for it on the same basis as other applicants.
(3) A person may transfer the reservation
of a corporate name to another person by delivering to the Office of the
Secretary of State a notice of the transfer executed by the person for whom the
name was reserved and specifying the name and address of the transferee. [1989
c.1010 §33]
65.101
Registered name. (1) A
foreign corporation may apply to the Office of the Secretary of State to
register its corporate name.
(2) The application must set forth the
corporate name, the state or country of its incorporation, the date of its
incorporation, a brief description of the nature of the activities in which it
is engaged and a statement that it is not carrying on or doing business in the
State of
(3) If the Secretary of State finds that
the name conforms to ORS 65.094, the Secretary of State shall register the name
effective for one year.
(4) A foreign corporation whose
registration is effective may renew it for successive years by delivering to
the Secretary of State for filing a renewal application which complies with the
requirements of this section prior to the lapse of the previous registration.
Filing of the renewal application renews the registration for an additional
year from its prior expiration.
(5) A foreign corporation whose registration
is effective may thereafter qualify to do business in this state as a foreign
corporation under that name or transfer the registered name to another
applicant for the name by the procedures provided in ORS 65.097 (3) with
respect to reserved names. Filing of such a consent terminates the prior
registration and operates as a reservation in the name of the transferee, if it
does not simultaneously file under that name. [1989 c.1010 §34]
OFFICE AND
AGENT
65.111
Registered office and registered agent. Each corporation shall continuously maintain in this state both:
(1) A registered agent, who shall be:
(a) An individual who resides in this
state;
(b) A corporation, domestic business
corporation, domestic limited liability company or domestic professional
corporation with an office in this state; or
(c) A foreign corporation, foreign
business corporation, foreign limited liability company or foreign professional
corporation authorized to transact business in this state with an office in
this state; and
(2) A registered office of the
corporation, which shall be the residence or office address of the registered
agent. [1989 c.1010 §35; 2001 c.315 §29]
65.114
Change of registered office or registered agent. (1) A corporation may change its registered
office or registered agent by delivering to the Office of the Secretary of
State for filing a statement of change that sets forth:
(a) The name of the corporation;
(b) If the current registered office is to
be changed, the address, including the street and number, of the new registered
office;
(c) If the current registered agent is to
be changed, the name of the new registered agent and a statement that the new
agent has consented to the appointment; and
(d) A statement that after the change or
changes are made, the street addresses of its registered office and the office
or residence address of its registered agent will be identical.
(2) If the registered agent changes the
street address of the agents designated office or residence, the registered
agent shall change the street address of the registered office of any
corporation for which the registered agent is the registered agent by notifying
the corporation in writing of the change and by signing, either manually or in
facsimile, and delivering to the Office of the Secretary of State for filing a
statement that complies with the requirements of subsection (1) of this section
and recites that the corporation has been notified of the change.
(3) The filing by the Secretary of State
of a statement submitted under this section shall terminate the existing
registered office or agent, or both, on the effective date of the filing and
establish the newly appointed registered office or agent, or both, as that of
the corporation. [1989 c.1010 §36]
65.117
Resignation of registered agent. (1) A registered agent may resign as registered agent upon delivering
a signed statement to the Office of the Secretary of State and giving notice in
the form of a copy of the statement to the corporation for filing. The statement
may include a statement that the registered office is also discontinued.
(2) Upon delivery of the signed statement,
the Secretary of State shall file the resignation statement. The copy of the
statement given to the corporation under subsection (1) of this section shall
be addressed to the corporation at its principal office as shown in the most
recent annual report filed pursuant to ORS 65.787 or if none, the address
specified in the articles of incorporation.
(3) The agency appointment is terminated,
and the registered office discontinued if so provided, on the 31st day after
the date on which the statement was filed by the Secretary of State, unless the
corporation shall sooner appoint a successor registered agent as provided in
ORS 65.114 thereby terminating the capacity of the prior agent. [1989 c.1010 §37;
1993 c.190 §5]
65.121
Service on the corporation.
The provisions of ORS 60.121 shall apply to corporations organized under or
subject to the provisions of this chapter. [1989 c.1010 §38; 1991 c.67 §12]
MEMBERS AND
MEMBERSHIPS
(Admission of
Members)
65.131
Admission. (1) The articles
or bylaws may establish criteria or procedures for admission of members.
(2) No person shall be admitted as a
member without consent of the person, express or implied. [1989 c.1010 §39]
65.134
Consideration. Except as
provided in its articles or bylaws, a corporation may admit members for no
consideration or for such consideration as is determined by the board. [1989
c.1010 §40]
65.137
No requirement for members.
A corporation is not required to have members. A corporation shall have no
members if its articles of incorporation or bylaws include a statement that the
corporation shall have no members or words of similar import. [1989 c.1010 §41]
(Members
Rights and Obligations)
65.144
Differences in rights and obligations of members. All members shall have the same rights and
obligations with respect to voting, dissolution, redemption and transfer,
unless the articles or bylaws establish classes of membership with different
rights or obligations. All members shall have the same rights and obligations
with respect to any other matters, except as set forth in or authorized by the
articles or bylaws. [1989 c.1010 §42]
65.147
Transfers. (1) Except as provided
in ORS 65.231 pertaining to proxies or as set forth in or authorized by the
articles or bylaws, no member may transfer a membership or any right arising
therefrom.
(2) No member of a public benefit or
religious corporation may transfer for value a membership or any right arising
therefrom, unless the transferring member is a public benefit or religious
corporation.
(3) Where transfer rights have been
provided, no restriction on them shall be binding with respect to a member
holding a membership issued prior to the adoption of the restriction unless the
restriction is approved by the members and the affected member. [1989 c.1010 §43]
65.151
Members liability to third parties. A member of a corporation is not personally liable for the acts,
debts, liabilities or obligations of the corporation merely by reason of being
a member. [1989 c.1010 §44]
65.154
Members liability for dues, assessments and fees. A member may become liable to the
corporation for dues, assessments or fees. An article or bylaw provision or a
resolution adopted by the board authorizing or imposing dues, assessments or
fees does not, of itself, create liability to pay the obligation, but
nonpayment may constitute grounds for expelling or suspending the member or
suspending or terminating the membership. [1989 c.1010 §45]
65.157
Creditors action against member. (1) No proceeding may be brought by a creditor to reach the liability,
if any, of a member to the corporation arising from membership unless final
judgment has been rendered in favor of the creditor against the corporation and
execution has been returned unsatisfied in whole or in part or unless obtaining
such judgment and execution would be useless.
(2) All creditors of the corporation, with
or without reducing their claims to judgment, may intervene in any creditors
proceeding brought under subsection (1) of this section to reach and apply
unpaid amounts due the corporation. Any or all members who owe amounts to the
corporation arising from membership may be joined in such proceeding. [1989
c.1010 §46]
(Resignation
and Termination)
65.164
Resignation. (1) A member
may resign at any time.
(2) The resignation of a member does not
relieve the member from any obligations the member may have to the corporation
as a result of obligations incurred or commitments made prior to resignation. [1989
c.1010 §47]
65.167
Termination, expulsion or suspension. (1) No member of a public benefit or mutual benefit corporation may be
expelled or suspended, and no membership or memberships in such corporations
may be terminated or suspended, except pursuant to a procedure that is fair and
reasonable and is carried out in good faith.
(2) A procedure is fair and reasonable
when either:
(a) The articles or bylaws set forth a
procedure that provides:
(A) Not less than 15 days prior written
notice of the expulsion, suspension or termination and the reasons therefor;
and
(B) An opportunity for the member to be
heard, orally or in writing, not less than five days before the effective date
of the expulsion, suspension or termination by a person or persons authorized
to decide that the proposed expulsion, termination or suspension not take
place; or
(b) It is fair and reasonable taking into
consideration all of the relevant facts and circumstances.
(3) Any written notice given by mail must
be given by first class or certified mail sent to the last address of the
member shown on the corporations records.
(4) Any proceeding challenging an
expulsion, suspension or termination, including a proceeding in which defective
notice is alleged, must be commenced within one year after the effective date
of the expulsion, suspension or termination.
(5) A member who has been expelled or
suspended, or whose membership has been suspended or terminated, may be liable
to the corporation for dues, assessments or fees as a result of obligations
incurred by the member prior to expulsion, suspension or termination. [1989
c.1010 §48; 2005 c.22 §44]
65.171
Acquiring memberships. (1) A
public benefit or religious corporation may not acquire for value any of its
memberships or any right arising therefrom, unless the member is a public
benefit or religious corporation.
(2) A mutual benefit corporation may
acquire the membership of a member who resigns or whose membership is
terminated for the amount and pursuant to the conditions set forth in or
authorized by its articles or bylaws.
(3) No acquisition of memberships shall be
made in violation of ORS 65.551 or 65.554. [1989 c.1010 §49]
(Derivative
Suits)
65.174
Derivative suits. (1) A
proceeding may be brought in the right of a domestic or foreign corporation to
procure a judgment in its favor by:
(a) Any member or members having two
percent or more of the voting power or by 20 members, whichever is less; or
(b) Any director.
(2) In any such proceeding, each member
complainant shall have been a member when the transaction complained of
occurred.
(3) A complaint in a proceeding brought in
the right of a corporation must allege with particularity 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 charges
made in the demand or complaint, the court may stay any proceeding until the
investigation is completed.
(4) The complainants shall notify the
Attorney General within 10 days after commencing any proceeding under this
section if the proceeding involves a public benefit corporation or assets held
in charitable trust by a mutual benefit corporation.
(5) A proceeding commenced under this
section may not be discontinued or settled without the courts approval. If the
court determines that a proposed discontinuance or settlement will
substantially affect the interest of the corporations members or a class of
members, the court shall direct that notice be given the members affected. [1989
c.1010 §50]
(Delegates)
65.177
Delegates. (1) A corporation
may provide in its articles or bylaws for delegates having some or all of the
authority of members.
(2) The articles or bylaws may set forth
provisions relating to:
(a) The characteristics, qualifications,
rights, limitations and obligations of delegates including their selection and
removal;
(b) Providing notice to and calling,
holding and conducting meetings of delegates; and
(c) Carrying on corporate activities
during and between meetings of delegates. [1989 c.1010 §51]
MEMBERSHIP
MEETINGS AND VOTING
(Meetings and
Action Without Meetings)
65.201
Annual and regular meetings.
(1) A corporation with members shall hold a membership meeting annually at a
time stated in or fixed in accordance with the bylaws.
(2) A corporation with members may hold
regular membership meetings at the times stated in or fixed in accordance with
the bylaws.
(3) Annual and regular membership meetings
may be held in or out of this state 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 and regular meetings shall be held at the corporations
principal office.
(4) At the annual meeting:
(a) The president, and any other officer
the board of directors or the president may designate, shall report on the
activities and financial condition of the corporation; and
(b) The members shall consider and act
upon such other matters as may be raised consistent with the notice
requirements of ORS 65.214.
(5) At regular meetings the members shall
consider and act upon such matters as may be raised consistent with the notice
requirements of ORS 65.214.
(6) The failure to hold an annual or
regular meeting at a time stated in or fixed in accordance with a corporations
bylaws does not affect the validity of any corporate action. [1989 c.1010 §52]
65.204
Special meeting. (1) A
corporation with members shall hold a special meeting of members:
(a) On call of its board of directors or
the person or persons authorized to do so by the articles of incorporation or
bylaws; or
(b) Except as provided in the articles or
bylaws, if the holders of at least five percent of the voting power of any
corporation sign, date and deliver to the corporations secretary one or more
written demands for the meeting describing the purpose or purposes for which it
is to be held.
(2) If not otherwise fixed under ORS
65.207 or 65.221, the record date for members entitled to demand a special
meeting is the date the first member signs the demand.
(3) If a notice for a special meeting
demanded under subsection (1)(b) of this section is not given pursuant to ORS
65.214 within 30 days after the date the written demand or demands are
delivered to the corporations secretary then, regardless of the requirements
of subsection (4) of this section, a person signing the demand or demands may
set the time and place of the meeting and give notice pursuant to ORS 65.214.
(4) Special meetings of members may be
held in or out of this state at the place stated in or fixed in accordance with
the bylaws. If no place is stated or fixed in accordance with the bylaws,
special meetings shall be held at the corporations principal office.
(5) Only matters within the purpose or
purposes described in the meeting notice required by ORS 65.214 may be
conducted at a special meeting of members. [1989 c.1010 §53]
65.207
Court-ordered meeting; attorney fees. (1) The circuit court of the county where a corporations principal
office is located, or, if the principal office is not in this state, where the
registered office of the corporation is or was last located, may summarily
order a meeting to be held:
(a) On application of any member or other
person entitled to participate in an annual or regular meeting or, in the case
of a public benefit corporation, the Attorney General, if an annual meeting was
not held within the earlier of six months after the end of the corporations
fiscal year or 15 months after its last annual meeting;
(b) On application of any member or other
person entitled to participate in a regular meeting or, in the case of a public
benefit corporation, the Attorney General, if a regular meeting is not held
within 40 days after the date it was required to be held; or
(c) On application of a member who signed
a demand for a special meeting valid under ORS 65.204, a person or persons
entitled to call a special meeting or, in the case of a public benefit
corporation, the Attorney General, if notice of the special meeting was not
given within 30 days after the date the demand was delivered to the corporations
secretary or the special meeting was not held in accordance with the notice.
(2) The court may fix the time and place
of the meeting, determine the members entitled to participate in the meeting,
specify a record date for determining members entitled to notice of and to vote
at the meeting, prescribe the form and content of the meeting notice, fix the
quorum required for specific matters to be considered at the meeting or direct
that the votes represented at the meeting constitute a quorum for action on
those matters, and enter other orders necessary to accomplish the purpose or
purposes of the meeting.
(3)(a) Except as provided in paragraph (b)
of this subsection, the court may award reasonable attorney fees to the
prevailing party in an action under this section.
(b) The court may not award attorney fees
to the state or a political subdivision of the state if the state or political
subdivision prevails in an action under this section.
(4) The request shall be set for hearing
at the earliest possible time and shall take precedence over all matters,
except matters of the same character and hearings on preliminary injunctions
under ORCP 79 B(3). No order shall be issued by the court under this section
without notice to the corporation at least five days in advance of the time specified
for the hearing unless a different period is fixed by order of the court. [1989
c.1010 §54; 1995 c.696 §14]
65.211
Action without meeting. (1)
Unless the articles of incorporation or bylaws provide otherwise, action
required or permitted by this chapter to be taken at a members meeting may be
taken without a meeting if the action is taken by all the members entitled to
vote on the action. The action must be evidenced by one or more written
consents describing the action taken, signed by all the members entitled to
vote on the action, and delivered to the corporation for inclusion in the
minutes or filing with the corporate records. Action taken under this section
is effective when the last member signs the consent, unless the consent
specifies an earlier or later effective date.
(2) If not otherwise determined under ORS
65.207 or 65.221, the record date for determining members entitled to take
action without a meeting is the date the first member signs the consent under
subsection (1) of this section.
(3) A consent signed under this section
has the effect of a meeting vote and may be described as such in any document. [1989
c.1010 §55]
65.214
Notice of meeting. (1) A
corporation shall give notice consistent with its bylaws of meetings of members
in a fair and reasonable manner. The corporation is required to give notice to
members entitled to vote at the meeting and to any other person specified in
this chapter, the articles of incorporation or the bylaws.
(2) Any notice which conforms to the requirements
of subsection (3) of this section is fair and reasonable, but other means of
giving notice may also be fair and reasonable when all the circumstances are
considered, provided, however, that notice of matters referred to in subsection
(3)(b) of this section must be given as provided in subsection (3) of this
section.
(3) Notice is fair and reasonable if:
(a) The corporation notifies its members
of the place, date and time of each annual, regular and special meeting of
members no fewer than seven days, or if notice is mailed by other than first
class or registered mail, no fewer than 30 nor more than 60 days before the
meeting;
(b) Notice of an annual or regular meeting
includes a description of any matter or matters which must be approved by the
members under ORS 65.361, 65.404, 65.414 (1)(a), 65.437, 65.464, 65.487, 65.534
or 65.624; and
(c) Notice of a special meeting includes a
description of the purpose or purposes for which the meeting is called.
(4) Unless the bylaws require otherwise, if
an annual, regular or special meeting of members 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.
If a new record date for the adjourned meeting is or must be fixed under ORS
65.221, however, notice of the adjourned meeting must be given under this
section to the persons who are members as of the new record date. [1989 c.1010 §56;
1991 c.231 §2]
65.217
Waiver of notice. (1) A
member may at any time waive any notice required by this chapter, the articles
or bylaws. The waiver must be in writing, be signed by the member entitled to
the notice and be delivered to the corporation for inclusion in the minutes or
filing with the corporate records.
(2) A members attendance at a meeting
waives objection to:
(a) Lack of notice or defective notice of
the meeting, unless the member at the beginning of the meeting objects to
holding the meeting or transacting business at the meeting; and
(b) Consideration of a particular matter
at the meeting that is not within the purpose or purposes described in the
meeting notice, unless the member objects to considering the matter when it is
presented. [1989 c.1010 §57]
65.221
Record date. (1) The bylaws
may fix or provide the manner of fixing the record date in order to determine
the members entitled to notice of a members meeting, to demand a special
meeting, to vote or to take any other lawful action. If the bylaws do not fix
or provide for fixing such a record date, the board of directors may fix a
future date as the record date. If no such record date is fixed, then:
(a) To determine the members entitled to
notice of a members meeting, the record date shall be the day before the day
on which first notice is mailed or otherwise transmitted to members in
accordance with ORS 65.034, or if notice is waived, the day preceding the day
on which the meeting is held.
(b) To determine the members entitled to
demand a special meeting, the record date shall be as set forth in ORS 65.204
(2).
(c) To determine the members entitled to
take action without a meeting, the record date shall be as set forth in ORS
65.211 (2).
(d) To determine the members entitled to
vote at a members meeting, the record date shall be the date of the meeting.
(e) To determine the members entitled to
exercise any rights in respect to any other lawful action, the record date
shall be the day on which the board adopts the resolution relating thereto, or
the 60th day prior to the date of such other action, whichever is later.
(2) A record date fixed under this section
may not be more than 70 days before the meeting or action requiring the
determination of members.
(3) A determination of members entitled to
notice of or to vote at a membership meeting is effective for any adjournment
of the meeting unless the board fixes a new record date, which it must do if
the meeting is adjourned to a date more than 120 days after the date fixed for
the original meeting.
(4) If a court orders a meeting adjourned
to a date more than 120 days after the date fixed for the original meeting, it
may provide that the original record date continues in effect or it may fix a
new record date. [1989 c.1010 §58]
65.222
Action by written ballot.
(1) Unless prohibited or limited by the articles or bylaws, any action which
may be taken at any annual, regular or special meeting of members may be taken
without a meeting if the corporation delivers a written ballot to every member
entitled to vote on the matter.
(2) A written ballot shall:
(a) Set forth each proposed action; and
(b) Provide an opportunity to vote for or
against each proposed action.
(3) Approval by written ballot pursuant to
this section shall be valid only when the number of votes cast by ballot equals
or exceeds any quorum required to be present at a meeting authorizing the
action, and the number of approvals equals or exceeds the number of votes that
would be required to approve the matter at a meeting at which the total number
of votes cast was the same as the number of votes cast by ballot.
(4) All solicitations for votes by written
ballot shall:
(a) Indicate the number of responses
needed to meet the quorum requirements;
(b) State the percentage of approvals
necessary to approve each matter other than election of directors; and
(c) Specify a reasonable time by which a
ballot must be received by the corporation in order to be counted.
(5) Except as otherwise provided in the
articles or bylaws, a written ballot may not be revoked. [1989 c.1010 §59]
(Voting)
65.224
Members list for meeting; attorney fees. (1) A corporation shall prepare an alphabetical list of the names,
addresses and membership dates of all its members. If there are classes of
members, the list must show the address and number of votes each member is
entitled to vote at the meeting. The corporation shall prepare on a current
basis through the time of the membership meeting a list of members, if any, who
are entitled to vote at the meeting, but are not part of the main list of
members.
(2) The list of members must be available
for inspection by any member for the purpose of communication with other
members concerning the meeting, beginning two business days after notice of the
meeting is given for which the list was prepared and continuing through the
meeting, at the corporations principal office or at a reasonable place
identified in the meeting notice in the city or other location where the
meeting will be held. A member, the members agent or the members attorney is
entitled, on written demand setting forth a proper purpose, to inspect and,
subject to the requirements of ORS 65.774 and 65.782, to copy the list at a
reasonable time and at the members expense, during the period it is available
for inspection.
(3) The corporation shall make the list of
members available at the meeting, and any member, the members agent or the
members attorney is entitled to inspect the list for any proper purpose at any
time during the meeting or any adjournment.
(4) If the corporation refuses to allow a
member, the members agent or the members attorney to inspect the list of
members before or at the meeting or copy the list as permitted by subsection
(2) of this section, on application of the member, the circuit court of the
county where the corporations principal office, or if the principal office is
not in this state, where its registered office is or was last located, may
enter a temporary restraining order or preliminary injunction pursuant to ORCP
79 ordering the inspection or copying at the corporations expense and may
postpone the meeting for which the list was prepared until the inspection or
copying is complete. The court may award reasonable attorney fees to the
prevailing party in an action under this subsection. The party initiating such
a proceeding shall not be required to post an undertaking pursuant to ORCP 82
A.
(5) Refusal or failure to prepare or make
available the membership list does not affect the validity of action taken at
the meeting.
(6) The articles or bylaws of a religious
corporation may limit or abolish the rights of a member under this section to
inspect and copy any corporate record.
(7) The articles of a public benefit
corporation organized primarily for political or social action, including but
not limited to political or social advocacy, education, litigation or a
combination thereof, may limit or abolish the right of a member or the members
agent or attorney to inspect or copy the membership list if the corporation
provides a reasonable means to mail communications to the other members through
the corporation at the expense of the member making the request. [1989 c.1010 §60;
1995 c.618 §41; 2005 c.22 §45]
65.227
Voting entitlement of members.
(1) Unless the articles or bylaws provide otherwise, each member is entitled to
one vote on each matter voted on by the members, including each matter on which
a member is entitled to vote under this chapter or the articles or bylaws.
Except as expressly prohibited in this chapter, the articles or bylaws may
provide for different allocations of votes among member classes or exclude the
members or some or all member classes from voting on any issue on which they
would otherwise be entitled to vote under this chapter. Persons not retaining a
right to vote on more than one occasion for the election of a director or
directors shall not be deemed members.
(2) Unless the articles or bylaws provide
otherwise, if a membership stands of record in the names of two or more
persons, their acts with respect to voting shall have the following effect:
(a) If only one votes, such act binds all;
and
(b) If more than one votes, the vote shall
be divided on a pro rata basis. [1989 c.1010 §61; 1991 c.231 §3]
65.231
Proxies. (1) Unless the
articles or bylaws prohibit or limit proxy voting, a member may appoint a proxy
to vote or otherwise act for the member by signing an appointment form either
personally or by the members attorney-in-fact.
(2) An appointment of a proxy is effective
when received by the secretary or other officer or agent authorized to tabulate
votes. An appointment is valid for 11 months unless a different period is
expressly provided in the appointment form.
(3) An appointment of a proxy is revocable
by the member.
(4) The death or incapacity of the member
appointing a proxy does not affect the right of the corporation to accept the
proxys authority unless notice of the death or incapacity is received by the
secretary or other officer or agent authorized to tabulate votes before the
proxy exercises authority under the appointment.
(5) Appointment of a proxy is revoked by
the person appointing the proxy:
(a) Attending any meeting and voting in
person; or
(b) Signing and delivering to the
secretary or other officer or agent authorized to tabulate proxy votes either a
writing stating that the appointment of the proxy is revoked or a subsequent
appointment form.
(6) Subject to ORS 65.237 and any express
limitation on the proxys authority appearing on the face of the appointment
form, a corporation is entitled to accept the proxys vote or other action as
that of the member making the appointment. [1989 c.1010 §64]
65.234
Adjournment. Unless
otherwise provided in the articles of incorporation or bylaws, a majority of
votes represented at a meeting of members, whether or not a quorum, may adjourn
the meeting from time to time to a different time and place without further
notice to any member of any adjournment, except as such notice may be required
by ORS 65.214 (4). At the adjourned meeting at which a quorum is present, any
business may be transacted that might have been transacted at the meeting
originally held. [1989 c.1010 §68]
65.237
Corporations acceptance of votes. (1) If the name signed on a vote, consent, waiver or proxy appointment
corresponds to the name of a member, the corporation, if acting in good faith,
is entitled to accept the vote, consent, waiver or proxy appointment and give
it effect as the act of the member.
(2) If the name signed on a vote, consent,
waiver or proxy appointment does not correspond to the record name of a member,
the corporation if acting in good faith is nevertheless entitled to accept the
vote, consent, waiver or proxy appointment and give it effect as the act of the
member if:
(a) The member is an entity and the name
signed purports to be that of an officer or agent of the entity;
(b) The name signed purports to be that of
an attorney-in-fact of the member and if the corporation requests, evidence
acceptable to the corporation of the signatorys authority to sign for the
member has been presented with respect to the vote, consent, waiver or proxy
appointment;
(c) Two or more persons hold the
membership as cotenants or fiduciaries and the name signed purports to be the
name of at least one of the coholders and the person signing appears to be
acting on behalf of all the coholders; or
(d) In the case of a mutual benefit
corporation:
(A) The name signed purports to be that of
an administrator, executor, guardian or conservator representing the member
and, if the corporation requests, evidence of fiduciary status acceptable to
the corporation has been presented with respect to the vote, consent, waiver or
proxy appointment; or
(B) The name signed purports to be that of
a receiver or trustee in bankruptcy of the member, and, if the corporation
requests, evidence of this status acceptable to the corporation has been
presented with respect to the vote, consent, waiver or proxy appointment.
(3) The corporation is entitled to reject
a vote, consent, waiver or proxy appointment if the secretary or other officer
or agent authorized to tabulate votes, acting in good faith, has reasonable
basis for doubt about the validity of the signature on it or about the
signatorys authority to sign for the member.
(4) The corporation and its officer or
agent who accepts or rejects a vote, consent, waiver or proxy appointment in
good faith and in accordance with the standards of this section are not liable
in damages to the member for the consequences of the acceptance or rejection.
(5) Corporate action based on the
acceptance or rejection of a vote, consent, waiver or proxy appointment under
this section is valid unless a court of competent jurisdiction determines
otherwise. [1989 c.1010 §67]
65.241
Quorum requirements. (1) Unless
the articles or bylaws provide for a higher quorum, those votes represented at
a meeting of members shall constitute a quorum.
(2) An amendment to the articles or bylaws
to decrease the quorum for any member action may be approved by the members,
or, unless prohibited by the articles or bylaws, by the board.
(3) An amendment to the articles or bylaws
to increase the quorum required for any member action must be approved by the
members. [1989 c.1010 §62]
65.244
Voting requirements. (1)
Unless this chapter, the articles or the bylaws require a greater vote or
voting by class, if a quorum is present, the affirmative vote of a majority of
the votes represented and voting is the act of the members.
(2) An amendment to the articles or bylaws
to add to, change or delete the vote required for any member action must be
approved by the members. [1989 c.1010 §63]
65.247
Cumulative voting for directors. (1) If the articles or bylaws provide for cumulative voting by
members, members may so vote, by multiplying the number of votes the members
are entitled to cast by the number of directors for whom they are entitled to
vote, and cast the product for a single candidate or distribute the product
among two or more candidates.
(2) Cumulative voting is not authorized at
a particular meeting unless:
(a) The meeting notice or statement
accompanying the notice states that cumulative voting will take place; or
(b) A member gives notice during the
meeting and before the vote is taken of the members intent to cumulate votes,
and if one member gives this notice all other members participating in the
election are entitled to cumulate their votes without giving further notice.
(3) A director elected by cumulative
voting may be removed by the members without cause if the requirements of ORS
65.324 are met unless the votes cast against removal, or not consenting in
writing to such removal, would be sufficient to elect such director if voted
cumulatively at an election at which the same total number of votes were cast
or, if such action is taken by written ballot, all memberships entitled to vote
were voted and the entire number of directors authorized at the time of the
directors most recent election were then being elected.
(4) Members may not cumulatively vote if
the directors and members are identical. [1989 c.1010 §65]
65.251
Other methods of electing directors. A corporation may provide in its articles or bylaws for election of
directors by members or delegates:
(1) On the basis of chapter or other
organizational unit;
(2) By region or other geographic unit;
(3) By preferential voting; or
(4) By any other reasonable method. [1989
c.1010 §66]
(Voting
Agreements)
65.254
Voting agreements. (1) Two
or more members may provide for the manner in which they will vote by signing
an agreement for that purpose. Such agreements may be valid for a period of up
to 10 years. For public benefit corporations such agreements must have a
reasonable purpose not inconsistent with the corporations public or charitable
purposes.
(2) A voting agreement created under this
section is specifically enforceable. [1989 c.1010 §69]
DIRECTORS AND
OFFICERS
(Board of
Directors)
65.301
Requirement for and duties of board. (1) Each corporation shall have a board of directors.
(2) All corporate powers shall be
exercised by or under the authority of, and the affairs of the corporation
managed under the direction of, the board of directors, subject to any
limitation set forth in the articles of incorporation and except as provided in
subsection (3) of this section.
(3) The articles of incorporation may
authorize a person or persons, or the manner of designating a person or
persons, authorized to exercise some or all of the powers which would otherwise
be exercised by a board. To the extent so authorized any such person or persons
shall have the duties and responsibilities of the directors, and the directors
shall be relieved to that extent from such duties and responsibilities. [1989
c.1010 §70]
65.304
Qualifications of directors.
All directors must be individuals. The articles of incorporation or bylaws may
prescribe other qualifications for directors. [1989 c.1010 §71]
65.307
Number of directors. (1) A
board of directors must consist of one or more individuals for a mutual benefit
or religious corporation and three or more individuals for a public benefit
corporation, with the number specified or fixed in accordance with the articles
of incorporation or bylaws.
(2) 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. If a variable range is
established, the number of directors may be fixed or changed periodically,
within the minimum and maximum, by the members or the board of directors. If
the articles of incorporation establish a fixed or a variable range for the
size of the board of directors and the corporation has members entitled to vote
for directors, then only the members may change the range for the size of the
board or change from a fixed or a variable-range size board. [1989 c.1010 §72]
65.311
Election, designation and appointment of directors. (1) If the corporation has members entitled
to vote for directors, all the directors, except the initial directors, shall
be elected at the first annual meeting of members, and at each annual meeting
thereafter, unless the articles or bylaws provide some other time or method of
election, or provide that some of the directors are appointed by some other
person or are designated.
(2) If the corporation does not have
members entitled to vote for directors, all the directors, except the initial
directors, shall be elected, appointed or designated as provided in the
articles or bylaws. If no method of election, appointment or designation is set
forth in the articles or bylaws, the directors, other than the initial
directors, shall be elected by the board. [1989 c.1010 §73]
65.314
Terms of directors generally.
(1) The articles or bylaws may specify the terms of directors. Except for
designated or appointed directors, the terms of directors may not exceed five
years. In the absence of any term specified in the articles or bylaws, the term
of each director shall be one year. Directors may be elected for successive
terms.
(2) A decrease in the number of directors
or term of office does not shorten an incumbent directors term.
(3) Except as provided in the articles or
bylaws:
(a) The term of a director filling a
vacancy in the office of an elected director expires at the next election of
directors; and
(b) The term of a director filling any
other vacancy expires at the end of the unexpired term which such director is
filling.
(4) Despite the expiration of a directors
term, the director continues to serve until the directors successor is elected,
designated or appointed and qualifies, or until there is a decrease in the
number of directors. [1989 c.1010 §74]
65.317
Staggered terms for directors.
The articles or bylaws may provide for staggering the terms of directors by
dividing the total number of directors into groups. The terms of office of the
several groups need not be uniform. [1989 c.1010 §75]
65.321
Resignation of directors.
(1) A director may resign at any time by delivering written notice to the board
of directors, its presiding officer or to the president or secretary.
(2) A resignation is effective when the
notice is effective under ORS 65.034 unless the notice specifies a later
effective date.
(3) Once delivered, a notice of
resignation is irrevocable unless revocation is permitted by the board of
directors. [1989 c.1010 §76]
65.324
Removal of directors elected by members or directors. (1) The members may remove one or more
directors elected by them with or without cause unless the articles of
incorporation provide that directors may be removed only for cause.
(2) If a director is elected by a class,
chapter or other organizational unit or by region or other geographic grouping,
only the members of that class, chapter, unit or grouping entitled to vote may
participate in the vote to remove the director.
(3) Except as provided in subsection (9)
of this section, a director may be removed under subsection (1) or (2) of this
section only if the number of votes cast to remove the director would be
sufficient to elect the director at a meeting to elect directors.
(4) If cumulative voting is authorized, a
director may not be removed if the number of votes, or if the director was
elected by a class, chapter, unit or grouping of members, the number of votes
of that class, chapter, unit or grouping, sufficient to elect the director
under cumulative voting is voted against the directors removal.
(5) An elected director may be removed by
the members only at a meeting called for the purpose of removing the director
and the meeting notice must state that the purpose, or one of the purposes, of
the meeting is removal of the director.
(6) In computing whether a director is
protected from removal under subsections (2) to (4) of this section, it should
be assumed that the votes against removal are cast in an election for the
number of directors of the class to which the director to be removed belonged
on the date of that directors election.
(7) An entire board of directors may be
removed under subsections (1) to (5) of this section.
(8) A director elected by the board of
directors may be removed with or without cause, unless the articles of
incorporation or bylaws provide that directors may be removed only for cause,
by the vote of two-thirds of the directors then in office or such greater number
as is set forth in the articles or bylaws. However, a director elected by the
board to fill the vacancy of a director elected by the members may be removed
by the members, but not the board.
(9) If at the beginning of a directors
term on the board, the articles or bylaws provide that the director may be
removed for reasons set forth in the articles or bylaws, the board may remove
the director for such reasons. The director may be removed only if a majority
of the directors then in office vote for the removal.
(10) The articles or bylaws of a religious
corporation may:
(a) Limit the application of this section;
and
(b) Set forth the vote and procedures by
which the board or any person may remove with or without cause a director
elected by the members or the board. [1989 c.1010 §77]
65.327
Removal of directors by judicial proceeding. (1) The circuit court of the county where a corporations principal
office is located, or if the principal office is not in this state where its
registered office was last located, may remove any director of the corporation
from office in a proceeding commenced either by the corporation, at least 10
percent of the members of any class entitled to vote for directors, or the
Attorney General in the case of a public benefit corporation if the court finds
that:
(a) The director engaged in fraudulent or
dishonest conduct, or gross abuse of authority or discretion, with respect to
the corporation, or the director has violated a duty set forth in ORS 65.357 to
65.367; and
(b) Removal is in the best interest of the
corporation.
(2) The court that removes a director may
bar the director from serving on the board for a period prescribed by the
court.
(3) If members or the Attorney General
commence a proceeding under subsection (1) of this section, the corporation
shall be made a party defendant.
(4) A public benefit corporation or its
members who commence a proceeding under subsection (1) of this section shall
give the Attorney General written notice of the proceeding.
(5) The articles or bylaws of a religious
corporation may limit or prohibit the application of this section. [1989 c.1010
§79]
65.331
Removal of designated or appointed directors. (1) A designated director may be removed by an amendment to the
articles or bylaws deleting or changing the designation.
(2) If a director is appointed:
(a) Except as otherwise provided in the
articles or bylaws, the director may be removed with or without cause by the
person appointing the director;
(b) The person removing the director shall
do so by giving written notice of the removal to the director and either the
presiding officer of the board or the corporations president or secretary; and
(c) A removal is effective when the notice
is effective under ORS 65.034 unless the notice specifies a future effective
date. [1989 c.1010 §78]
65.334
Vacancy on board. (1) Unless
the articles or bylaws provide otherwise, and except as provided in subsections
(2) and (3) of this section, if a vacancy occurs on a board of directors,
including a vacancy resulting from an increase in the number of directors:
(a) The members entitled to vote for
directors, if any, may fill the vacancy. If the vacant office was held by a
director elected by a class, chapter or other organizational unit or by region
or other geographic grouping, only members of the class, chapter, unit or
grouping are entitled to vote to fill the vacancy if it is filled by the
members;
(b) The board of directors may fill the
vacancy; or
(c) If the directors remaining in office constitute
fewer than a quorum of the board of directors, they may fill the vacancy by the
affirmative vote of a majority of all the directors remaining in office.
(2) Unless the articles or bylaws provide
otherwise, if a vacant office was held by an appointed director, only the
person who appointed the director may fill the vacancy.
(3) If a vacant office was held by a
designated director, the vacancy shall be filled as provided in the articles or
bylaws. In the absence of an applicable article or bylaw provision, the vacancy
may not be filled by the board.
(4) A vacancy that will occur at a
specific later date, by reason of a resignation effective at a later date under
ORS 65.321 (2) or otherwise, may be filled before the vacancy occurs but the
new director may not take office until the vacancy occurs. [1989 c.1010 §80]
65.335
Compensation of directors.
Unless the articles or bylaws provide otherwise, the board of directors may fix
the compensation of directors. [1989 c.1010 §81]
(Meetings and
Action of Board)
65.337
Regular and special meetings.
(1) If the time and place of a directors meeting is fixed by the bylaws or is
regularly scheduled by the board of directors, the meeting is a regular
meeting. All other meetings are special meetings.
(2) The board of directors may hold
regular or special meetings in or out of this state.
(3) Unless the articles 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,
use of any means of communication by which either of the following occurs:
(a) All directors participating may
simultaneously hear or read each others communications during the meeting; or
(b) All communications during the meeting
are immediately transmitted to each participating director, and each
participating director is able to immediately send messages to all other
participating directors.
(4) If a meeting is conducted through the
use of any means described in subsection (3) of this section:
(a) All participating directors shall be
informed that a meeting is taking place at which official business may be
transacted; and
(b) A director participating in the
meeting by this means is deemed to be present in person at the meeting. [1989
c.1010 §82; 2005 c.161 §1]
65.341
Action without meeting. (1)
As used in this section:
(a) Electronic has the meaning given
that term in ORS 84.004.
(b) Electronic signature has the meaning
given that term in ORS 84.004.
(c) Sign includes an electronic
signature.
(d) Written includes a communication
that is transmitted or received by electronic means.
(2) Unless the articles or bylaws provide
otherwise, action required or permitted by this chapter to be taken at the
board of directors meeting may be taken without a meeting if the action is
taken by all members of the board of directors. The action shall 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.
(3) Action taken under this section is
effective when the last director signs the consent, unless the consent
specifies an earlier or later effective date.
(4) A consent signed under this section
has the effect of a meeting vote and may be described as such in any document. [1989
c.1010 §83; 2005 c.161 §2]
65.344
Call and notice of meetings.
(1) Unless the articles, bylaws or this chapter provide otherwise, regular
meetings of the board may be held without notice of the date, time, place or
purpose of the meeting.
(2) Unless the articles of incorporation
or bylaws provide for a longer or shorter period, special meetings of the board
must be preceded by at least two days notice to each director of the date,
time and place of the meeting. Unless this chapter provides otherwise, the
notice need not describe the purposes of the special meeting unless required by
the articles of incorporation or bylaws.
(3) Unless the articles or bylaws provide
otherwise, the presiding officer of the board, the president or 20 percent of
the directors then in office may call and give notice of a meeting of the
board. [1989 c.1010 §84]
65.347
Waiver of notice. (1) A
director may at any time waive any notice required by this chapter, the
articles of incorporation or bylaws. Except as provided in subsection (2) of
this section, the waiver must be in writing, must be signed by the director
entitled to the notice, must specify the meeting for which notice is waived and
must be filed with the minutes or the corporate records.
(2) A directors attendance at or
participation in a meeting waives any required notice to the director of the
meeting unless the director, at the beginning of the meeting, or promptly upon
the directors arrival, objects to holding the meeting or transacting business
at the meeting and does not thereafter vote for or assent to any action taken
at the meeting. [1989 c.1010 §85]
65.351
Quorum and voting. (1)
Unless the articles of incorporation or bylaws require a greater number or a
lesser number as authorized under subsection (2) of this section, a quorum of a
board of directors consists of:
(a) If the corporation has a fixed board
size, a majority of the fixed number of directors; or
(b) If the corporation has a
variable-range size board, a majority of the number of directors prescribed, or
if no number is prescribed, a majority of the number in office immediately
before the meeting begins.
(2) 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 prescribed number of directors determined under
subsection (1) of this section.
(3) If a quorum is present when a vote is
taken, the affirmative vote of a majority of directors present when the act is
taken is the act of the board of directors unless the articles of incorporation
or bylaws require the vote of a greater number of directors. A director is
considered present regardless of whether the director votes or abstains from
voting.
(4) 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:
(a) The director objects at the beginning
of the meeting, or promptly upon the directors arrival, to holding the meeting
or transacting the business at the meeting;
(b) The directors dissent or abstention
from the action taken is entered in the minutes of the meeting; or
(c) The director delivers written notice
of 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. [1989 c.1010 §86; 1991 c.231 §4]
65.354
Committees. (1) Unless the
articles or bylaws provide otherwise, a board of directors may create one or
more committees of the board of directors which exercise the authority of the
board of directors and appoint members of the board to serve on them or
designate the method of selecting committee members. Each committee shall
consist of two or more directors, who serve at the pleasure of the board of
directors.
(2) The creation of a committee and
appointment of directors to the committee or designation of a method of
selecting committee members must be approved by the greater of:
(a) A majority of all the directors in
office when the action is taken; or
(b) The number of directors required by
the articles or bylaws to take action under ORS 65.351.
(3) ORS 65.337 to 65.351, governing
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.
(4) Except as provided in subsection (5)
of this section, to the extent specified by the board of directors or in the
articles or bylaws, each committee of the board may exercise the authority of
the board of directors.
(5) A committee of the board may not:
(a) Authorize distributions;
(b) Approve or recommend to members
dissolution, merger or the sale, pledge or transfer of all or substantially all
of the corporations assets;
(c) Elect, appoint or remove directors or
fill vacancies on the board or on any of its committees; or
(d) Adopt, amend or repeal the articles or
bylaws.
(6) 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 ORS 65.357. [1989 c.1010 §87]
(Standards of
Conduct)
65.357
General standards for directors. (1) A director shall discharge the duties of a director, including the
directors duties as a member of a committee:
(a) In good faith;
(b) With the care an ordinarily prudent
person in a like position would exercise under similar circumstances; and
(c) In a manner the director reasonably
believes to be in the best interests of the corporation.
(2) In discharging the duties of a
director, a director is entitled to rely on information, opinions, reports or
statements, including financial statements and other financial data, if
prepared or presented by:
(a) One or more officers or employees of
the corporation whom the director reasonably believes to be reliable and
competent in the matters presented;
(b) Legal counsel, public accountants or
other persons as to matters the director reasonably believes are within the
persons professional or expert competence;
(c) A committee of the board of which the
director is not a member, as to matters within its jurisdiction, if the
director reasonably believes the committee merits confidence; or
(d) In the case of religious corporations,
religious authorities and ministers, priests, rabbis or other persons whose
position or duties in the religious organization the director believes justify
reliance and confidence and whom the director believes to be reliable and
competent in the matters presented.
(3) A director is not acting in good faith
if the director has knowledge concerning the matter in question that makes
reliance otherwise permitted by subsection (2) of this section unwarranted.
(4) A director is not liable to the
corporation, any member or any other person for any action taken or not taken
as a director, if the director acted in compliance with this section. The
liability of a director for monetary damages to the corporation and its members
may be eliminated or limited in the corporations articles to the extent
provided in ORS 65.047 (2)(c).
(5) A director shall not be deemed to be a
trustee with respect to the corporation or with respect to any property held or
administered by the corporation, including without limit, property that may be
subject to restrictions imposed by the donor or transferor of such property. [1989
c.1010 §88]
65.361
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. A
conflict of interest transaction is not voidable or the basis for imposing
liability on the director if the transaction is fair to the corporation at the
time it was entered into or is approved as provided in subsection (2) or (3) of
this section.
(2) A transaction in which a director of a
public benefit or religious corporation has a conflict of interest may be
approved:
(a) By the vote of the board of directors
or a committee of the board of directors if the material facts of the
transaction and the directors interest are disclosed or known to the board of
directors or committee of the board of directors; or
(b) By obtaining approval of the:
(A) Attorney General; or
(B) The circuit court in an action in
which the Attorney General is joined as party.
(3) A transaction in which a director of a
mutual benefit corporation has a conflict of interest may be approved:
(a) In advance by the vote of the board of
directors or a committee of the board of directors if the material facts of the
transaction and the directors interest were disclosed or known to the board of
directors or a committee of the board of directors; or
(b) If the material facts of the
transactions and the directors interest were disclosed or known to the members
and they authorized, approved or ratified the transaction.
(4) For the purposes of this section, a
director of the corporation has an indirect interest in a transaction if:
(a) Another entity in which the director
has a material interest or in which the director is a general partner is a
party to the transaction; or
(b) Another entity of which the director
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.
(5) For purposes of subsections (2) and
(3) of this section, 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. 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 votes 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 (2)(a) or (3)(a) of
this section if the transaction is otherwise approved as provided in subsection
(2) or (3) of this section.
(6) For purposes of subsection (3)(b) of
this section, a conflict of interest transaction is authorized, approved or
ratified by the members if it receives a majority of the votes entitled to be
counted under this subsection. Votes cast by or voted under the control of a
director who has a direct or indirect interest in the transaction, and votes
cast by or voted under the control of an entity described in subsection (4) of
this section may be counted in a vote of members to determine whether to
authorize, approve or ratify a conflict of interest transaction under
subsection (3)(b) of this section. A majority of the members, whether or not
present, that are entitled to be counted in a vote on the transaction under
this subsection constitutes a quorum for the purpose of taking action under
this section.
(7) The articles, bylaws or a resolution
of the board may impose additional requirements on conflict of interest
transactions. [1989 c.1010 §89]
65.364
Loans to or guarantees for directors and officers. (1) Public benefit and religious
corporations may not make a loan, guarantee an obligation or modify a
preexisting loan or guarantee to or for the benefit of a director or officer of
the corporation, except as stated in this section. Unless prohibited by its
articles or bylaws, a public benefit or religious corporation may make a loan,
guarantee an obligation or modify a preexisting loan or guarantee to or for the
benefit of a director or officer as part of a recruitment package, for a total
period not to exceed three years, provided that:
(a) Approval of the loan, guarantee or
modification is obtained in the manner provided in ORS 65.361 (2) and (5) for
approval of issues involving director conflicts of interest;
(b) Notice of the loan, guarantee or
modification is given to the members of the corporation in the manner provided
in ORS 65.784 for notice of certain acts of indemnification; and
(c) Twenty or more days before the loan,
guarantee or modification is to become binding on the corporation, written
notice has been given to the Attorney General of the proposed recruitment
package for the director or officer, including identification of the amount and
character of all items of compensation and a separate statement of the amount
and terms of any such loan, guarantee or modification.
(2) A mutual benefit corporation may not
lend money to or guarantee the obligation of a director of the corporation
unless:
(a) The particular loan or guarantee is
approved by a majority of the votes of members entitled to vote, excluding the
votes of members under the control of the benefited director; or
(b) The corporations board of directors
determines that the loan or guarantee benefits the corporation and either
approves the specific loan or guarantee or a general plan authorizing the loans
and guarantees.
(3) The fact that a loan or guarantee is
made in violation of this section does not affect the borrowers liability on the
loan. [1989 c.1010 §90; 1991 c.231 §6]
65.367
Liability for unlawful distributions. (1) Unless a director complies with the applicable standards of
conduct described in ORS 65.357, a director who votes for or assents to a
distribution made in violation of this chapter or the articles of incorporation
is personally liable to the corporation for the amount of the distribution that
exceeds what could have been distributed without violating this chapter.
(2) A director held liable for an unlawful
distribution under subsection (1) of this section is entitled to contribution:
(a) From every other director who voted
for or assented to the distribution without complying with the applicable
standards of conduct described in ORS 65.357; and
(b) From each person who received an
unlawful distribution for the amount of the distribution whether or not the
person receiving the distribution knew it was made in violation of this chapter
or the articles of incorporation. [1989 c.1010 §91]
65.369
Liability of qualified directors. (1) The civil liability of a qualified director for the performance or
nonperformance of the directors duties shall be limited to gross negligence or
intentional misconduct.
(2) This section does not affect the civil
liability of the entity which a qualified director serves.
(3) For the purposes of this section, qualified
director means a person who serves without compensation for personal services
as:
(a) A member of a board or commission of
the state or a governmental subdivision for the purpose of setting policy and
controlling or otherwise overseeing the activities or functional
responsibilities of the board or commission but, notwithstanding ORS 30.265
(2), the entity is not thereby rendered immune from liability;
(b) An officer, director or member of an
executive board for the purpose of setting policy and controlling or otherwise
overseeing the activities or functional responsibilities of a nonprofit
corporation, unincorporated association or nonprofit cooperative corporation
that has as its primary purpose:
(A) Religion;
(B) Charity;
(C) Benevolence;
(D) Providing goods or services at no
charge to the general public;
(E) Education;
(F) Scientific activity;
(G) Medical or hospital services at
reduced costs; or
(H) Engaging in activities of the nature
specified in section 501 of the Internal Revenue Code of 1986, as amended;
(c) A director for the purpose of setting
policy and controlling or otherwise overseeing the activities or functional
responsibilities of an organization which acts as an advocate for its members
and which has as its members individuals or organizations that are:
(A) Members of a particular trade or
industry; or
(B) Members of the business community of a
particular municipality or area of the state; or
(d) An officer, director or member of an
executive board for the purpose of setting policy and controlling or otherwise
overseeing the activities or functional responsibilities of a nonprofit
corporation, unincorporated association or nonprofit cooperative corporation
composed of owners or lessees of units or interests in any condominium
submitted to the provisions of ORS 100.005 to 100.625, any planned community as
defined in ORS 94.550, any timeshare property as defined in ORS 94.803, any
residential cooperative community or any other residential or commercial common
interest real estate community.
(4) An otherwise qualified director shall
not be considered to be compensated for personal services if the director
receives payment only for actual expenses incurred in attending meetings or
performing a directors duties or receives a stipend which is paid only to
compensate the director for average expenses incurred over the course of a
year. [1989 c.1010 §§92,92a; 1991 c.64 §4; 1991 c.81 §1; 1991 c.231 §5; 1999
c.677 §64]
(Officers)
65.371
Required officers. (1) A
corporation shall have a president, a secretary and such other officers as are
elected or appointed by the board or by any other person as may be authorized
in the articles or bylaws, provided that the articles of incorporation or
bylaws may designate other titles in lieu of president and secretary.
(2) The bylaws or the board shall delegate
to one of the officers responsibility for preparing minutes of the directors
and members meetings and for authenticating records of the corporation.
(3) The same individual may simultaneously
hold more than one office in a corporation. [1989 c.1010 §93; 1991 c.231 §7]
65.374
Duties and authority 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 and
authority 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.
[1989 c.1010 §94]
65.377
Standards of conduct for officers. (1) An officer shall discharge the officers duties:
(a) In good faith;
(b) With the care an ordinarily prudent
person in a like position would exercise under similar circumstances; and
(c) In a manner the officer reasonably
believes to be in the best interests of the corporation.
(2) In discharging the duties of an
officer, an officer is entitled to rely on information, opinions, reports or
statements, including financial statements and other financial data, if
prepared or presented by:
(a) One or more officers or employees of
the corporation whom the officer reasonably believes to be reliable and
competent in the matters presented;
(b) Legal counsel, public accountants or
other persons as to matters the officer reasonably believes are within the
persons professional or expert competence; or
(c) In the case of religious corporations,
religious authorities and ministers, priests, rabbis or other persons whose
position or duties in the religious organization the officer believes justify
reliance and confidence and whom the officer believes to be reliable and
competent in the matters presented.
(3) An officer is not acting in good faith
if the officer has knowledge concerning the matter in question that makes
reliance otherwise permitted by subsection (2) of this section unwarranted.
(4) An officer is not liable to the
corporation, any member or other person for any action taken or not taken as an
officer if the officer acted in compliance with this section. The liability of
the officer for monetary damages to the corporation and its members may be
eliminated or limited in the corporations articles to the extent provided in
ORS 65.047 (2)(c). [1989 c.1010 §95]
65.381
Resignation and removal of officers. (1) An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is effective under ORS
65.034 unless the notice specifies a later effective date. If a resignation is
made effective at a later date and the corporation accepts the later effective
date, its board of directors or any other person as authorized under the
articles or bylaws may fill the pending vacancy before the effective date if
the board or any other person provides that the successor does not take office
until the effective date.
(2) A board of directors or any other
person authorized under the articles or bylaws to elect or appoint an officer
may remove any officer the board or any other person is entitled to elect or
appoint, at any time with or without cause.
(3) Once delivered, a notice of
resignation is irrevocable unless revocation is permitted by the board of
directors. [1989 c.1010 §96; 1991 c.231 §8]
65.384
Contract rights of officers.
(1) The appointment of an officer does not itself create contract rights.
(2) Removal or resignation of an officer
does not affect the contract rights, if any, of the corporation or the officer.
[1989 c.1010 §97]
(Indemnification)
65.387
Definitions for ORS 65.387 to 65.414. As used in ORS 65.387 to 65.414:
(1) Corporation includes any domestic or
foreign predecessor entity of a corporation in a merger or other transaction in
which the predecessors existence ceased upon consummation of the transaction.
(2) Director means an individual who is
or was a director of a corporation or an individual who, while a director of a
corporation, is or was serving at the corporations request as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
business or nonprofit corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise. A director is considered to be serving an
employee benefit plan at the corporations request if the directors duties to
the corporation also impose duties on, or otherwise involve services by, the
director to the plan or to participants in or beneficiaries of the plan. Director
includes, unless the context requires otherwise, the estate or personal
representative of a director.
(3) Expenses include attorney fees.
(4) 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 actually
incurred with respect to a proceeding.
(5) Officer means an individual who is
or was an officer of a corporation or an individual who, while an officer of a
corporation, is or was serving at the corporations request as a director,
officer, partner, trustee, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise. An officer is considered to be serving an employee benefit plan at
the corporations request if the officers duties to the corporation also
impose duties on or include services by the officer to the employee benefit
plan or to participants in or beneficiaries of the plan. Officer includes,
unless the context requires otherwise, the estate or personal representative of
an officer.
(6) Party includes an individual who
was, is or is threatened to be made a named defendant or respondent in a
proceeding.
(7) Proceeding means any threatened,
pending or completed action, suit or proceeding whether civil, criminal,
administrative or investigative and whether formal or informal. [1989 c.1010 §98]
65.391
Authority to indemnify. (1)
Except as provided in subsection (4) of this section, a corporation may
indemnify an individual made a party to a proceeding because the individual is
or was a director against liability incurred in the proceeding if:
(a) The conduct of the individual was in
good faith;
(b) The individual reasonably believed
that the individuals conduct was in the best interests of the corporation, or
at least not opposed to its best interests; and
(c) In the case of any criminal
proceeding, the individual had no reasonable cause to believe the conduct of
the individual was unlawful.
(2) A directors conduct with respect to
an employee benefit plan for a purpose the director reasonably believed to be
in the interests of the participants in and beneficiaries of the plan is
conduct that satisfies the requirements of subsection (1)(b) of this section.
(3) The termination of a proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or
its equivalent is not, of itself, determinative that the director did not meet
the standard of conduct described in this section.
(4) A corporation may not indemnify a
director under this section:
(a) In connection with a proceeding by or
in the right of the corporation in which the director was adjudged liable to
the corporation; or
(b) In connection with any other
proceeding charging improper personal benefit to the director in which the
director was adjudged liable on the basis that personal benefit was improperly
received by the director.
(5) Indemnification permitted under this
section in connection with a proceeding by or in the right of the corporation
is limited to reasonable expenses incurred in connection with the proceeding. [1989
c.1010 §99]
65.394
Mandatory indemnification.
Unless limited by its articles of incorporation, a corporation shall indemnify
a director who was wholly successful, on the merits or otherwise, in the
defense of any proceeding to which the director was a party because of being a
director of the corporation, against reasonable expenses actually incurred by
the director in connection with the proceeding. [1989 c.1010 §100; 2005 c.22 §46]
65.397
Advance for expenses. (1) 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:
(a) The director furnishes the corporation
a written affirmation of the directors good faith belief that the director has
met the standard of conduct described in ORS 65.391; and
(b) The director furnishes the corporation
a written undertaking, executed personally or on the directors behalf, to
repay the advance if it is ultimately determined that the director did not meet
the standard of conduct.
(2) The undertaking required by subsection
(1)(b) of this section must be an unlimited general obligation of the director
but need not be secured and may be accepted without reference to financial
ability to make repayment.
(3) Any authorization of payments under
this section may be made by provision in the articles of incorporation or
bylaws, by a resolution of the members or board of directors or by contract. [1989
c.1010 §101]
65.401
Court-ordered indemnification.
Unless the corporations articles of incorporation provide otherwise, a
director of the corporation who is a party to a proceeding may apply for
indemnification to the court conducting the proceeding or to another court of
competent jurisdiction. On receipt of an application, the court after giving
any notice the court considers necessary may order indemnification in the
amount it considers proper if it determines:
(1) The director is entitled to mandatory
indemnification under ORS 65.394, in which case the court shall also order the
corporation to pay the directors reasonable expenses incurred to obtain
court-ordered indemnification; or
(2) The director is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances, whether
or not the director met the standard of conduct set forth in ORS 65.391 (1) or
was adjudged liable as described in ORS 65.391 (4), whether the liability is
based on a judgment, settlement or proposed settlement or otherwise. [1989
c.1010 §102]
65.404
Determination and authorization of indemnification. (1) A corporation may not indemnify a
director under ORS 65.391 unless authorized in the specific case after a
determination has been made that indemnification of the director is permissible
in the circumstances because the director has met the standard of conduct set
forth in ORS 65.391.
(2) A determination that indemnification
of a director is permissible shall be made:
(a) By the board of directors by majority
vote of a quorum consisting of directors not at the time parties to the
proceeding;
(b) If a quorum cannot be obtained under
paragraph (a) of this subsection, by a majority vote of a committee duly
designated by the board of directors, consisting solely of two or more
directors not at the time parties to the proceeding;
(c) By special legal counsel selected by
the board of directors or its committee in the manner prescribed in paragraph
(a) or (b) of this subsection or, if a quorum of the board cannot be obtained
under paragraph (a) of this subsection and a committee cannot be designated
under paragraph (b) of this subsection, the special legal counsel shall be
selected by majority vote of the full board of directors including directors
who are parties to the proceeding; or
(d) By the members of a mutual benefit
corporation, but directors who are at the time parties to the proceeding may
not vote on the determination.
(3) Authorization of indemnification and
evaluation as to reasonableness of expenses shall be made in the same manner as
the determination that indemnification is permissible, except that if the
determination is made by special legal counsel, authorization of
indemnification and evaluation as to reasonableness of expenses shall be made
by those entitled under subsection (2)(c) of this section to select counsel.
(4) A director of a public benefit
corporation may not be indemnified until 20 days after the effective date of
written notice to the Attorney General of the proposed indemnification. [1989
c.1010 §103]
65.407
Indemnification of officers, employees and agents. Unless a corporations articles of
incorporation provide otherwise:
(1) An officer of the corporation is
entitled to mandatory indemnification under ORS 65.394, and is entitled to
apply for court-ordered indemnification under ORS 65.401 in each case, to the
same extent as a director under ORS 65.394 and 65.401.
(2) The corporation may indemnify and
advance expenses under ORS 65.387 to 65.411 an officer, employee or agent of
the corporation who is not a director to the same extent as to a director. [1989
c.1010 §104]
65.411
Insurance. A corporation may
purchase and maintain insurance on behalf of an individual against liability
asserted against or incurred by the 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, partner, trustee, employee or agent
of another foreign or domestic business or nonprofit corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise. The
corporation may purchase and maintain the insurance even if the corporation has
no power to indemnify the individual against the same liability under ORS 65.391
or 65.394. [1989 c.1010 §105]
65.414
Application of ORS 65.387 to 65.411. (1) The indemnification and provisions for advancement of expenses
provided by ORS 65.387 to 65.411 shall not be deemed exclusive of any other
rights to which directors, officers, employees or agents may be entitled under
the corporations articles of incorporation or bylaws, any agreement, general
or specific action of its board of directors, vote of members or otherwise, and
shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person. Specifically and not by way of limitation, a
corporation shall have the power to make or agree to make any further indemnification,
including advancement of expenses, of:
(a) Any director as authorized by the
articles of incorporation, any bylaws approved, adopted or ratified by the
members or any resolution or agreement approved, adopted or ratified, before or
after such indemnification or agreement is made, by the members, provided that
no such indemnification shall indemnify any director from or on account of acts
or omissions for which liability could not be eliminated under ORS 65.047
(2)(c); and
(b) Any officer, employee or agent who is
not a director as authorized by its articles of incorporation or bylaws,
general or specific action of its board of directors or agreement. Unless the
articles of incorporation, or any such bylaws, agreement or resolution provide
otherwise, any determination as to any further indemnity under this paragraph
shall be made in accordance with ORS 65.404.
(2) If articles of incorporation limit
indemnification or advance of expenses, any indemnification and advance of
expenses are valid only to the extent consistent with the articles of
incorporation.
(3) ORS 65.387 to 65.411 do not limit a
corporations power to pay or reimburse expenses incurred by a director in
connection with the directors appearance as a witness in a proceeding at a
time when the director has not been made a named defendant or respondent to a
proceeding.
(4) A report of indemnification must be
made in accordance with ORS 65.784. [1989 c.1010 §106; 1991 c.231 §9]
AMENDMENT OF
ARTICLES OF INCORPORATION AND BYLAWS
(Amendment of
Articles of Incorporation)
65.431
Authority. (1) A corporation
may amend its articles of incorporation at any time to add, change or delete
any provision if the articles of incorporation as amended would be permitted
under ORS 65.431 to 65.467 as of the effective date of the amendment.
(2) A corporation designated on the
records of the Office of the Secretary of State as a public benefit or
religious corporation may amend or restate its articles of incorporation so
that it becomes designated as a mutual benefit corporation only if notice,
including a copy of the proposed amendment or restatement, has been delivered
to the Attorney General at least 20 days before consummation of the amendment
or restatement. [1989 c.1010 §107]
65.434
Amendment by directors. (1)
Unless the articles provide otherwise, a corporations board of directors may
adopt one or more amendments to the corporations articles without member
approval:
(a) To extend the duration of the
corporation if it was incorporated at a time when limited duration was required
by law;
(b) To delete the names and addresses of
the initial directors and incorporators;
(c) To delete the name and address of the
initial registered agent or registered office, if a statement of change is on
file with the Office of the Secretary of State;
(d) To delete the mailing address if an
annual report has been filed with the Office of the Secretary of State;
(e) To change the corporate name by
adding, changing or deleting the word corporation, incorporated, company,
limited or the abbreviation corp., inc., co. or ltd., for a similar
word or abbreviation in the name, or by adding, deleting or changing a
geographical attribution to the name;
(f) To include a statement of whether the
corporation is a public benefit, mutual benefit or religious corporation; or
(g) To make any other change expressly
permitted by this chapter to be made by director action.
(2) If a corporation has no members
entitled to vote on articles, its incorporators, until directors have been
chosen, and thereafter its board of directors, may adopt one or more amendments
to the corporations articles subject to any approval required pursuant to ORS
65.467. The corporation shall provide notice of any meeting at which an
amendment is to be voted upon. The notice shall be in accordance with ORS
65.344 (2). The notice must also state that the purpose, or one of the
purposes, of the meeting is to consider a proposed amendment to the articles
and contain or be accompanied by a copy or summary of the amendment or state
the general nature of the amendment. Unless the articles or bylaws require a
greater vote or the board of directors requires a greater vote, the amendment
must be approved by a majority of the directors in office at the time the
amendment is adopted. Any number of amendments may be submitted and voted upon
at any one meeting. [1989 c.1010 §108; 1991 c.231 §10]
65.437
Amendment by board of directors and members. (1) Unless this chapter, the articles, bylaws, the members, acting
pursuant to subsection (2) of this section, or the board of directors acting
pursuant to subsection (3) of this section, require a greater vote or voting by
class, an amendment to a corporations articles to be adopted must be approved:
(a) By the board if the corporation is a
public benefit or religious corporation and the amendment does not relate to
the number of directors, the composition of the board, the term of office of
directors or the method or way in which directors are elected or selected;
(b) Except as provided in ORS 65.434 (1),
by the members entitled to vote on articles by at least two-thirds of the votes
cast or a majority of the voting power, whichever is less; and
(c) In writing by any person or persons
whose approval is required for an amendment to the articles as authorized by
ORS 65.467.
(2) The members entitled to vote on
articles may condition the amendments adoption on receipt of a higher
percentage of affirmative votes or on any other basis.
(3) If the board initiates an amendment to
the articles or board approval is required by subsection (1) of this section to
adopt an amendment to the articles, the board may condition the amendments
adoption on receipt of a higher percentage of affirmative votes or on any other
basis. For the amendment to be adopted, the board of directors shall, except in
those cases described in subsection (1)(a) of this section, adopt a resolution
setting forth the proposed amendment and directing that it be submitted to a
vote at a meeting of members, which may be either an annual or special meeting.
(4) If the board or the members entitled
to vote on articles seek to have the amendment approved by such members at a
membership meeting, the corporation shall give notice to such members of the
proposed membership meeting in writing in accordance with ORS 65.214. The
notice must 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.
(5) If the board or the members entitled
to vote on articles seek to have the amendment approved by such members by
written consent or written ballot, the material soliciting the approval shall
contain or be accompanied by a copy or summary of the amendment. [1989 c.1010 §109]
65.441
Class voting by members on amendments. (1) In a public benefit corporation the members of a class entitled to
vote on articles are entitled to vote as a class on a proposed amendment to the
articles if the amendment would affect the rights of that class as to voting in
a manner different than the amendment would affect another class or members of
another class.
(2) In a mutual benefit corporation the
members of a class entitled to vote on articles are entitled to vote as a class
on a proposed amendment to the articles if the amendment would:
(a) Affect the rights, privileges,
preferences, restrictions or conditions of that class as to voting,
dissolution, redemption or transfer of memberships in a manner different than
such amendment would affect another class;
(b) Change the rights, privileges,
preferences, restrictions or conditions of that class as to voting,
dissolution, redemption or transfer by changing the rights, privileges,
preferences, restrictions or conditions of another class;
(c) Increase or decrease the number of
memberships authorized for that class;
(d) Increase the number of memberships
authorized for another class;
(e) Effect an exchange, reclassification
or termination of the memberships of that class; or
(f) Authorize a new class of memberships.
(3) In a religious corporation the members
of a class entitled to vote on articles are entitled to vote as a class on a
proposed amendment to the articles only if a class vote is provided for in the
articles or bylaws.
(4) If a class is to be divided into two
or more classes as a result of an amendment to the articles of a public benefit
or mutual benefit corporation, the amendment must be approved by the members of
each class entitled to vote on articles that would be created by the amendment.
(5) Except as provided in the articles or
bylaws of a religious corporation, if a class vote is required to approve an
amendment to the articles of a corporation, the amendment must be approved by
the members of the class entitled to vote on articles by two-thirds of the
votes cast by the class or a majority of the voting power of the class,
whichever is less.
(6) A class of members of a public benefit
or mutual benefit corporation is entitled to the voting rights granted by this
section although the articles and bylaws provide that the class may not vote on
the proposed amendment. [1989 c.1010 §110]
65.447
Articles of amendment. A
corporation amending its articles shall deliver for filing to the Office of the
Secretary of State articles of amendment setting forth:
(1) The name of the corporation.
(2) The text of each amendment adopted.
(3) The date of each amendments adoption.
(4) If approval of members was not
required, a statement to that effect and a statement that the amendment was
approved by a sufficient vote of the board of directors or incorporators.
(5) If approval by members entitled to
vote on articles was required:
(a) The designation and number of members
of, and number of votes entitled to be cast by, each class entitled to vote
separately on the amendment; and
(b) The total number of votes cast for and
against the amendment by each class entitled to vote separately on the
amendment.
(6) If approval of the amendment by some
person or persons other than the members entitled to vote on articles, the
board or the incorporators is required pursuant to ORS 65.467, a statement that
the approval was obtained. [1989 c.1010 §111]
65.451
Restated articles of incorporation. (1) A corporations board of directors may restate its articles of
incorporation at any time with or without approval by the members entitled to
vote on articles or any other person.
(2) The restatement may include one or
more amendments to the articles. If the restatement includes an amendment requiring
approval by the members entitled to vote on articles or any other person, it
must be adopted as provided in ORS 65.437.
(3) If the board seeks to have the
restatement approved by the members entitled to vote on articles at a
membership meeting, the corporation shall give written notice to the members
entitled to vote on articles of the proposed membership meeting in accordance
with ORS 65.214. The notice must also state that the purpose, or one of the
purposes, of the meeting is to consider the proposed restatement and contain or
be accompanied by a copy or summary of the restatement that identifies any
amendments or other change it would make in the articles.
(4) If the board seeks to have the
restatement approved by the members entitled to vote on articles by written
ballot or written consent, the material soliciting the approval shall contain
or be accompanied by a copy or summary of the restatement that identifies any
amendments or other change it would make in the articles.
(5) A restatement requiring approval by
the members entitled to vote on articles must be approved by the same vote as
an amendment to articles under ORS 65.437.
(6) A corporation restating its articles
of incorporation shall deliver to the Office of the Secretary of State for
filing articles of restatement setting forth the name of the corporation and
the text of the restated articles of incorporation together with a certificate
setting forth:
(a) Whether the restatement contains an
amendment to the articles requiring approval by the members entitled to vote on
articles or any other person other than the board of directors and, if it does
not, that the board of directors adopted the restatement, or if the restatement
contains an amendment to the articles requiring approval by the members
entitled to vote on articles, the information required by ORS 65.447; and
(b) If the restatement contains an
amendment to the articles requiring approval by a person whose approval is
required pursuant to ORS 65.467, a statement that such approval was obtained.
(7) Restated articles of incorporation
shall include all statements required to be included in original articles of
incorporation except that no statement is required to be made with respect to:
(a) The names and addresses of the incorporators
or the initial or present registered office or agent; or
(b) The mailing address of the corporation
if an annual report has been filed with the Office of the Secretary of State.
(8) Duly adopted restated articles of
incorporation supersede the original articles of incorporation and all
amendments to them.
(9) The Secretary of State may certify
restated articles of incorporation, as the articles of incorporation currently
in effect, without including the certificate information required by subsection
(6) of this section. [1989 c.1010 §112; 2005 c.22 §47]
65.454
Amendment pursuant to court order. (1) A corporations articles may be amended without board approval or
approval by the members entitled to vote on articles, or approval required pursuant
to ORS 65.467:
(a) To carry out a plan of reorganization
ordered or decreed by a court of competent jurisdiction under federal statute;
or
(b) In a proceeding brought by the
Attorney General in the Circuit Court for Marion County to correct the statement
in the articles of incorporation or the annual report with regard to whether
the corporation is a public benefit or mutual benefit corporation or, subject
to the provisions of ORS 65.042, a religious corporation.
(2) The articles after amendment shall
contain only provisions required or permitted by ORS 65.047.
(3) The individual or individuals
designated by the court in a reorganization proceeding, or the Attorney General
in a proceeding brought by the Attorney General, shall deliver to the Office of
the Secretary of State for filing articles of amendment setting forth:
(a) The name of the corporation;
(b) The text of each amendment approved by
the court;
(c) The date of the courts order or
decree approving the articles of amendment;
(d) The title of the proceeding in which
the order or decree was entered; and
(e) A statement whether the court had
jurisdiction of the proceeding under federal statute or under subsection (1)(b)
of this section.
(4) This section does not apply after
entry of a final decree in the reorganization proceeding even though the court
retains jurisdiction of the proceeding for limited purposes unrelated to
consummation of the reorganization plan. [1989 c.1010 §113]
65.457
Effect of amendment and restatement. 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, any requirement or limitation imposed upon the
corporation or any property held by it by virtue of any trust upon which such
property is held by the corporation or the existing rights of persons other
than members of the corporation. An amendment changing a corporations name
does not abate a proceeding brought by or against the corporation in its former
name. [1989 c.1010 §114]
(Amendment of
Bylaws)
65.461
Amendment by directors.
Unless otherwise provided in its articles or bylaws, a corporation with no
members with the power to vote on bylaws shall amend its bylaws as provided in
this section. The corporations incorporators, until directors have been
chosen, and thereafter its board of directors may adopt one or more amendments
to the corporations bylaws subject to any approval required pursuant to ORS
65.467. The corporation shall provide notice of any meeting of directors at
which an amendment is to be approved. The notice shall be in accordance with
ORS 65.344 (2). The notice must also state that the purpose, or one of the
purposes, of the meeting is to consider a proposed amendment to the bylaws and
contain or be accompanied by a copy or summary of the amendment or state the
general nature of the amendment. [1989 c.1010 §115]
65.464
Amendment by directors and members. (1) A corporations board of directors may amend or repeal the corporations
bylaws unless:
(a) The articles of incorporation or this
chapter reserve this power exclusively to the members, or to a party authorized
under ORS 65.467, or both, in whole or in part; or
(b) The members entitled to vote on
bylaws, in amending or repealing a particular bylaw, provide expressly that the
board of directors may not amend or repeal that bylaw.
(2) A corporations members entitled to
vote on bylaws, subject to ORS 65.467, may amend or repeal the corporations
bylaws even though the bylaws may also be amended or repealed by its board of
directors. [1989 c.1010 §116]
65.467
Approval by third persons.
The articles may require an amendment to the articles or bylaws to be approved
in writing by a specified person or persons other than the board. Such an
article provision may not be amended without the approval in writing of such
person or persons. [1989 c.1010 §117]
MERGER
65.481
Approval of plan of merger.
(1) Subject to the limitations set forth in ORS 65.484, one or more nonprofit
corporations may merge with a business or nonprofit corporation, if the plan of
merger is approved as provided in ORS 65.487.
(2) The plan of merger must set forth:
(a) The name of each business or nonprofit
corporation planning to merge and the name of the surviving corporation into
which each other corporation plans to merge;
(b) The terms and conditions of the
merger;
(c) The manner and basis, if any, of
converting the memberships of each public benefit or religious corporation into
memberships of the surviving corporation; and
(d) If the merger involves a mutual
benefit or business corporation, the manner and basis, if any, of converting
the memberships or shares of each merging corporation into memberships,
obligations, shares or other securities of the surviving or any other
corporation or into cash or other property in whole or part.
(3) The plan of merger may set forth:
(a) Amendments to the articles of
incorporation of the surviving corporation; and
(b) Other provisions relating to the
merger. [1989 c.1010 §118]
65.484
Limitations on mergers by public benefit or religious corporations. (1) Without the prior written consent of the
Attorney General or the prior approval of the circuit court of the county where
the corporations principal office is located or, if the principal office is
not in this state, where the registered office of the corporation is or was
last located, in a proceeding in which the Attorney General has been given
written notice, a public benefit or religious corporation may merge only with:
(a) A public benefit or religious
corporation;
(b) A foreign corporation which would
qualify under this chapter as a public benefit or religious corporation;
(c) A wholly owned foreign or domestic
business or mutual benefit corporation, provided the public benefit or
religious corporation is the surviving corporation and continues to be a public
benefit or religious corporation after the merger; or
(d) A foreign or domestic business or
mutual benefit corporation, provided that:
(A) On or prior to the effective date of
the merger, assets with a value equal to the greater of the fair market value
of the net tangible and intangible assets, including goodwill, of the public
benefit or religious corporation or the fair market value of the public benefit
or religious corporation if it were to be operated as a business concern are
transferred or conveyed to one or more persons who would have received its
assets under ORS 65.637 (1)(e) and (f) had it dissolved;
(B) It shall return, transfer or convey
any assets held by it upon condition requiring return, transfer or conveyance,
which condition occurs by reason of the merger, in accordance with such
condition; and
(C) The merger is approved by a majority
of directors of the public benefit or religious corporation who are not and
will not become members or shareholders in, or officers, employees, agents or
consultants of, the surviving corporation.
(2) Notice, including a copy of the
proposed plan of merger, must be delivered to the Attorney General at least 20
days before consummation of any merger of a public benefit corporation or a
religious corporation pursuant to subsection (1)(d) of this section.
(3) Without the prior written consent of
the Attorney General or the prior approval of the court specified in subsection
(1) of this section in a proceeding in which the Attorney General has been
given written notice, no member of a public benefit or religious corporation
may receive or keep anything as a result of a merger other than a membership in
the surviving public benefit or religious corporation. Where approval or
consent is required by this section, it shall be given if the transaction is
consistent with the purposes of the public benefit or religious corporation or
is otherwise in the public interest. [1989 c.1010 §119]
65.487
Action on plan by board, members and third persons. (1) Unless this chapter, the articles,
bylaws or the board of directors or members, acting pursuant to subsection (3)
of this section, require a greater vote or voting by class, adoption of a plan
of merger requires, with respect to each corporation party to the merger,
approval:
(a) By the board;
(b) By the members entitled to vote on the
merger, if any, by at least two-thirds of the votes cast or a majority of the
voting power, whichever is less; and
(c) In writing, by any person or persons
whose approval is required for an amendment to the articles or bylaws by a
provision of the articles, as authorized by ORS 65.467.
(2) If the corporation does not have
members entitled to vote on the merger, the merger must be approved by a
majority of the directors in office at the time the merger is approved. In
addition, the corporation shall provide notice of any directors meeting at
which such approval is to be obtained in accordance with ORS 65.344 (2). The
notice must also state that the purpose, or one of the purposes, of the meeting
is to consider the proposed merger.
(3) The board of directors may condition
its submission of the proposed merger to a vote of members, and the members
entitled to vote on the merger may condition their approval of the merger, on
receipt of a higher percentage of affirmative votes or on any other basis.
(4) If the board seeks to have the plan
approved by the members at a membership meeting, the corporation shall give
notice to its members of the proposed membership meeting in accordance with ORS
65.214. The notice must also state that the purpose, or one of the purposes, of
the meeting is to consider the plan of merger and contain or be accompanied by
a copy or summary of the plan. The copy or summary of the plan for members of
the surviving corporation shall include any provision that, if contained in a
proposed amendment to the articles of incorporation or bylaws, would entitle
members to vote on the provision. The copy or summary of the plan for members
of each disappearing corporation shall include a copy or summary of the
articles and bylaws which will be in effect immediately after the merger takes
effect.
(5) If the board seeks to have the plan
approved by the members by written consent or written ballot, the material
soliciting the approval shall contain or be accompanied by a copy or summary of
the plan. The copy or summary of the plan for members of the surviving
corporation shall include any provision that, if contained in a proposed
amendment to the articles of incorporation or bylaws, would entitle members to
vote on the provision. The copy or summary of the plan for members of each
disappearing corporation shall include a copy or summary of the articles and
bylaws which will be in effect immediately after the merger takes effect.
(6) Voting by a class of members is
required on a plan of merger if the plan contains a provision that, if
contained in a proposed amendment to the articles of incorporation, would
entitle the class of members to vote as a class on the proposed amendment under
ORS 65.441. The plan is approved by a class of members by two-thirds of the
votes cast by the class or a majority of the voting power of the class,
whichever is less.
(7) After a merger is adopted, and at any
time before articles of merger are filed, the planned merger may be abandoned,
subject to any contractual rights, without further action by members or other
persons who approved the plan, in accordance with the procedure set forth in
the plan of merger or, if none is set forth, in the manner determined by the
board of directors. [1989 c.1010 §120]
65.491
Articles of merger. (1)
After a plan of merger is approved by the board of directors of each merging
corporation and, if required by ORS 65.487, by the members and any other
persons, the surviving corporation shall deliver to the Office of the Secretary
of State for filing articles of merger setting forth:
(a) The plan of merger.
(b) If approval of members was not
required, a statement to that effect and a statement that the plan was approved
by a sufficient vote of the board of directors of each corporation.
(c) If approval by the members of one or
more corporations was required:
(A) The designation and number of members
of, and number of votes entitled to be cast by, each class entitled to vote
separately on the plan; and
(B) The total number of votes cast for and
against the plan by each class entitled to vote separately on the plan.
(d) If approval of the plan by some person
or persons other than the members or the board is required pursuant to ORS
65.487 (1)(c), a statement that the approval was obtained.
(2) Unless a delayed effective date is
specified, a merger takes effect when the articles of merger are filed. [1989
c.1010 §121]
65.494
Effect of merger. 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 estate and other
property owned by each corporation party to the merger is vested in the
surviving corporation without reversion or impairment subject to any and all
conditions to which the property was subject prior to the merger;
(3) The surviving corporation has all
liabilities and obligations 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 and
bylaws of the surviving corporation are amended to the extent provided in the
plan of merger; and
(6) The memberships or shares of each
nonprofit or business corporation party to the merger that are to be converted
into memberships, obligations, shares or other securities of the surviving or
any other corporation or into cash or other property are converted and the
former holders of the memberships or shares are entitled only to the rights
provided in the articles of merger. [1989 c.1010 §122]
65.497
Merger with foreign corporation. (1) Except as provided in ORS 65.484, one or more foreign business or
nonprofit corporations may merge with one or more domestic nonprofit
corporations if:
(a) The merger is permitted by the law of
the state or country under whose law each foreign business or nonprofit
corporation is incorporated and each foreign business or nonprofit corporation
complies with that law in effecting the merger;
(b) The foreign business or nonprofit
corporation complies with ORS 65.491 if it is the surviving corporation of the
merger; and
(c) Each domestic nonprofit corporation
complies with the applicable provisions of ORS 65.481 to 65.487 and, if it is
the surviving corporation of the merger, with ORS 65.491.
(2) Upon the merger taking effect, a
surviving foreign business or nonprofit corporation is deemed to have
irrevocably appointed the Secretary of State as its agent for service of
process in any proceeding brought against it. [1989 c.1010 §123]
65.501
Effect of merger on bequests, devises and gifts. Any bequest, devise, gift, grant or promise
contained in a will or other instrument of donation, subscription or
conveyance, which is made to a constituent corporation and which takes effect
or remains payable after the merger, inures to the surviving corporation unless
the will or other instrument otherwise specifically provides. [1989 c.1010 §124]
65.504
Merger with business corporation. Any domestic business corporation which is a party to a merger with a
nonprofit corporation pursuant to this chapter shall comply with all applicable
requirements of the Oregon Business Corporation Act relating to mergers except
when inconsistent with this chapter. If a domestic business corporation is the
survivor of a merger with a nonprofit corporation, following the merger it
shall be subject to the Oregon Business Corporation Act. [1989 c.1010 §125]
65.531
(a) Sell, lease, exchange or otherwise
dispose of all or substantially all of its property in the usual and regular
course of its activities; or
(b) 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 its activities.
(2) Unless required by the articles of
incorporation, approval by the members or any other person of a transaction
described in subsection (1) of this section is not required. [1989 c.1010 §126]
65.534
(2) Unless this chapter, the articles,
bylaws or the board of directors or members, acting pursuant to subsection (4)
of this section, require a greater vote or voting by class, the proposed
transaction to be authorized must be approved:
(a) By the board;
(b) By the members entitled to vote on the
transaction by at least two-thirds of the votes cast or a majority of the
voting power, whichever is less; and
(c) In writing by any person or persons
whose approval is required for an amendment to the articles or bylaws by a
provision of the articles as authorized by ORS 65.467.
(3) If the corporation does not have
members entitled to vote on the transaction, the transaction must be approved
by a majority of the directors in office at the time the transaction is
approved. In addition, the corporation shall provide notice of any directors
meeting at which such approval is to be obtained in accordance with ORS 65.344
(2). 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 of the property of the corporation and contain or be
accompanied by a description of the transaction.
(4) The board of directors may condition
its submission of the proposed transaction to a vote of members, and the
members entitled to vote on the transaction may condition their approval of the
transaction, on receipt of a higher percentage of affirmative votes or on any
other basis.
(5) If the board seeks to have the
transaction approved by the members at a membership meeting, the corporation
shall give notice to its members of the proposed membership meeting in
accordance with ORS 65.214. 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 of the property of the
corporation and contain or be accompanied by a description of the transaction.
(6) If the board seeks to have the
transaction approved by the members by written consent or written ballot, the
material soliciting the approval shall contain or be accompanied by a
description of the transaction.
(7) A public benefit or religious
corporation must give written notice to the Attorney General 20 days before it
sells, leases, exchanges or otherwise disposes of all or substantially all of
its property unless the transaction is in the usual and regular course of its
activities or the Attorney General has given the corporation a written waiver
of this notice requirement.
(8) After a sale, lease, exchange or other
disposition of property is authorized, the transaction may be abandoned,
subject to any contractual rights, without further action by the members or any
other person who approved the transaction, in accordance with the procedure set
forth in the resolution proposing the transaction or, if none is set forth, in
the manner determined by the board of directors. [1989 c.1010 §127; 2005 c.22 §48]
DISTRIBUTIONS
65.551
Prohibited distributions.
Except as authorized by ORS 65.554, a corporation shall not make any distributions.
[1989 c.1010 §128]
65.554
Authorized distributions.
Unless prohibited by its articles or bylaws:
(1) A mutual benefit corporation may
purchase its memberships and, under the circumstances indicated in ORS 65.147
and 65.171, a public benefit or religious corporation may purchase its
memberships, if after the purchase is completed:
(a) The corporation would be able to pay
its debts as they become due in the usual course of its activities; and
(b) The corporations total assets would
at least equal the sum of its total liabilities.
(2) A corporation may make distributions
upon dissolution in conformity with ORS 65.621 to 65.674.
(3) A corporation may make distributions
to a member which is a religious or public benefit corporation or a foreign nonprofit
corporation which, if incorporated in this state, would qualify as a religious
or public benefit corporation. [1989 c.1010 §129]
DISSOLUTION
(Voluntary
Dissolution)
65.621
Dissolution by incorporators.
(1) A majority of the incorporators of a corporation that has no members and
that does not yet have initial directors may, subject to any approval required
by the articles or bylaws, dissolve the corporation by delivering articles of
dissolution to the Office of the Secretary of State for filing.
(2) The corporation shall give the
incorporators notice equivalent to that specified in ORS 65.344 (2), of any
meeting at which dissolution will be considered. The notice must also state
that the purpose, or one of the purposes, of the meeting is to consider
dissolution of the corporation.
(3) The incorporators in approving
dissolution shall adopt a plan of dissolution indicating to whom the assets
owned or held by the corporation will be distributed after all creditors have
been paid. [1989 c.1010 §130]
65.624
Dissolution by directors, members and third persons. (1) Unless this chapter, the articles,
bylaws or the board of directors or members, acting pursuant to subsection (3)
of this section, require a greater vote or voting by class, dissolution is authorized
if it is approved:
(a) By the board;
(b) By the members entitled to vote on
dissolution, if any, by at least two-thirds of the votes cast or a majority of
the voting power, whichever is less; and
(c) In writing, by any person or persons
whose approval is required for an amendment of the articles or bylaws, as
authorized by ORS 65.467, or for dissolution.
(2) If the corporation does not have
members entitled to vote on dissolution, dissolution must be approved by a vote
of a majority of the directors in office at the time the transaction is
approved. In addition, the corporation shall provide notice of any meeting of
the board of directors at which such approval is to be considered in accordance
with ORS 65.344 (2). The notice must also state that the purpose, or one of the
purposes, of the meeting is to consider dissolution of the corporation and
contain or be accompanied by a copy or summary of the plan of dissolution.
(3) The board may condition its submission
of the proposed dissolution to a vote of members, and the members may condition
their approval of the dissolution on receipt of a higher percentage of
affirmative votes or on any other basis.
(4) If the board seeks to have dissolution
approved by the members at a membership meeting, the corporation shall give all
members, whether or not entitled to vote, notice of the proposed membership
meeting in accordance with ORS 65.214. The notice must also state that the
purpose, or one of the purposes, of the meeting is to consider dissolving the corporation
and contain or be accompanied by a copy or summary of the plan of dissolution.
(5) If the board seeks to have dissolution
approved by the members by written consent or written ballot, the material
soliciting the approval shall contain or be accompanied by a copy or summary of
the plan of dissolution.
(6) The plan of dissolution shall indicate
to whom the assets owned or held by the corporation will be distributed after
all creditors have been paid. [1989 c.1010 §131; 1991 c.231 §11]
65.627
Notices to Attorney General.
(1) A public benefit or religious corporation shall give the Attorney General
written notice that it intends to dissolve at or before the time it delivers
articles of dissolution to the Secretary of State. The notice shall include a
copy or summary of the plan of dissolution.
(2) No assets shall be transferred or
conveyed by a public benefit or religious corporation as part of the
dissolution process until 20 days after it has given the written notice
required by subsection (1) of this section to the Attorney General or until the
Attorney General has consented in writing, or indicated in writing, that the
Attorney General will take no action in respect to the transfer or conveyance,
whichever is earlier.
(3) When all or substantially all of the
assets of a public benefit corporation have been transferred or conveyed
following approval of dissolution, the board shall deliver to the Attorney
General a list showing those, other than creditors, to whom the assets were
transferred or conveyed. The list shall indicate the addresses of each person,
other than creditors, who received assets and indicate what assets each
received. [1989 c.1010 §132]
65.631
Articles of dissolution. (1)
At any time after dissolution is authorized, the corporation may dissolve by
delivering to the Office of the Secretary of State for filing, articles of
dissolution setting forth:
(a) The name of the corporation;
(b) The date dissolution was authorized;
(c) A statement that dissolution was
approved by a sufficient vote of the board;
(d) If approval of members was not
required, a statement to that effect and a statement that dissolution was
approved by a sufficient vote of the board of directors or incorporators;
(e) If approval by members entitled to
vote was required:
(A) The designation and number of members
of, and number of votes entitled to be cast by, each class entitled to vote
separately on dissolution; and
(B) The total number of votes cast for and
against dissolution by each class entitled to vote separately on dissolution;
(f) If approval of dissolution by some
person or persons other than the members entitled to vote on dissolution, the
board or the incorporators is required pursuant to ORS 65.624 (1)(c), a
statement that the approval was obtained; and
(g) If the corporation is a public benefit
or religious corporation, that the notice to the Attorney General required by
ORS 65.627 (1) has been given.
(2) A corporation is dissolved upon the
effective date of its articles of dissolution. [1989 c.1010 §133]
65.634
Revocation of dissolution.
(1) A corporation may revoke its dissolution within 120 days of its effective
date.
(2) Revocation of dissolution must be
authorized in the same manner as the dissolution was authorized unless that
authorization of dissolution permits revocation by action of the board of
directors alone. If the authorization of dissolution permits revocation by
action of the board of directors alone, the board of directors may revoke the
dissolution without action by the members or any other person.
(3) After the revocation of dissolution is
authorized, the corporation may revoke the dissolution by delivering to the
Office of Secretary of State for filing, articles of revocation of dissolution
that set forth:
(a) The name of the corporation;
(b) The effective date of the dissolution
that was revoked;
(c) The date that the revocation of
dissolution was authorized;
(d) If the corporations board of
directors or incorporators revoked the dissolution, a statement to that effect;
(e) If the corporations board of
directors revoked a dissolution authorized by the members alone or in
conjunction with another person or persons, a statement that revocation was
permitted by action by the board of directors alone pursuant to that authorization;
and
(f) If member or third-person action was
required to revoke the dissolution, the information required by ORS 65.631
(1)(e) and (f).
(4) Unless a delayed effective date is
specified, revocation of dissolution is effective when articles of revocation
of dissolution are filed.
(5) 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 activities as if
dissolution had never occurred. [1989 c.1010 §134]
65.637
Effect of dissolution. (1) A
dissolved corporation continues its corporate existence but may not carry on
any activities except those appropriate to wind up and liquidate its affairs,
including:
(a) Preserving and protecting its assets
and minimizing its liabilities;
(b) Discharging or making provision for
discharging its liabilities and obligations;
(c) Disposing of its properties that will
not be distributed in kind;
(d) Returning, transferring or conveying
assets held by the corporation upon a condition requiring return, transfer or
conveyance, which condition occurs by reason of the dissolution, in accordance
with such condition;
(e) Transferring, subject to any
contractual or legal requirements, its assets as provided in or authorized by
its articles of incorporation or bylaws;
(f) If the corporation is a public benefit
or religious corporation, and no provision has been made in its articles or
bylaws for distribution of assets on dissolution, transferring, subject to any
contractual or legal requirement, its assets to one or more persons described
in ORS 65.001 (37)(b);
(g) If the corporation is a mutual benefit
corporation and no provision has been made in its articles or bylaws for
distribution of assets on dissolution, transferring, subject to any contractual
or legal requirements, its assets to its members or, if it has no members, to
those persons whom the corporation holds itself out as benefiting or serving;
and
(h) Doing every other act necessary to liquidate
its assets and wind up its affairs.
(2) Dissolution of a corporation does not:
(a) Transfer title to the corporations
property;
(b) Subject its directors or officers to
standards of conduct different from those prescribed in ORS 65.301 to 65.414;
(c) Change quorum or voting requirements
for its board or members, change provisions for selection, resignation or
removal of its directors or officers, or both, or change provisions for
amending its bylaws;
(d) Prevent commencement of a proceeding by
or against the corporation in its corporate name;
(e) Abate or suspend a proceeding pending
by or against the corporation on the effective date of dissolution; or
(f) Terminate the authority of the
registered agent of the corporation. [1989 c.1010 §135; 2001 c.315 §53]
65.641
Known claims against dissolved corporation. (1) A corporation electing to dispose of known claims pursuant to this
section shall notify its known claimants in writing of the dissolution at any
time after its effective date. The written notice must:
(a) Describe information that must be
included in a claim;
(b) Provide a mailing address where a
claim may be sent;
(c) State the deadline, which may not be
fewer than 120 days from the effective date of the written notice, by which the
dissolved corporation must receive the claim; and
(d) State that the claim will be barred if
not received by the deadline.
(2) A claim against the dissolved
corporation is barred:
(a) If a claimant who was given written
notice under subsection (1) of this section does not deliver the claim to the
dissolved corporation by the deadline; and
(b) If a claimant whose claim was rejected
by the dissolved corporation does not commence a proceeding to enforce the
claim within 90 days from the effective date of the rejection notice.
(3) For purposes of this section, claim
does not include a contingent liability or a claim based on an event occurring
after the effective date of dissolution. [1989 c.1010 §136]
65.644
Unknown claims against dissolved corporation. (1) A dissolved corporation may publish notice of its dissolution and
request that persons with claims against the corporation present them in
accordance with the notice.
(2) The notice must:
(a) Be published at least one time in a
newspaper of general circulation in the county where the dissolved corporations
principal office is located, or if the principal office is not in this state,
where its registered office is or was last located;
(b) Describe the information that must be
included in a claim and provide a mailing address where the claim may be sent;
and
(c) State that a claim against the
corporation will be barred unless a proceeding to enforce the claim is
commenced within five years after publication of the notice.
(3) If the dissolved corporation publishes
a newspaper notice in accordance with subsection (2) of this section, the claim
of each of the following claimants is barred unless the claimant commences a
proceeding to enforce the claim against the dissolved corporation within five years
after the publication date of the newspaper notice:
(a) A claimant who did not receive written
notice under ORS 65.641;
(b) A claimant whose claim was sent in a
timely manner to the dissolved corporation but not acted on; or
(c) A claimant whose claim is contingent
or based on an event occurring after the effective date of dissolution.
(4) A claim may be enforced under this
section:
(a) Against the dissolved corporation, to
the extent of its undistributed assets; or
(b) Against any person, other than a
creditor of the corporation, to whom the corporation distributed its property
in liquidation subject to the following:
(A) If the distributee received a pro rata
share of a distribution, the distributees liability will not exceed the same
pro rata share of the claim; and
(B) The distributees total liability for
all claims under this section may not exceed the total amount of assets
distributed to the distributee, less any liability of the corporation paid on
behalf of the corporation by that distributee after the date of distribution. [1989
c.1010 §137]
(Administrative
Dissolution)
65.647
Grounds for administrative dissolution. The Secretary of State may commence a proceeding under ORS 65.651 to
administratively dissolve a corporation if:
(1) The corporation does not pay when due
any fees imposed by this chapter;
(2) The corporation does not deliver its
annual report to the Secretary of State when due;
(3) The corporation is without a
registered agent or registered office in this state;
(4) The corporation does not notify the
Secretary of State that its registered agent or registered office has been
changed, that its registered agent has resigned, or that its registered office
has been discontinued; or
(5) The corporations period of duration,
if any, stated in its articles of incorporation expires. [1989 c.1010 §138]
65.651
Procedure for and effect of administrative dissolution. (1) If the Secretary of State determines
that one or more grounds exist under ORS 65.647 for dissolving a corporation,
the Secretary of State shall give the corporation written notice of that
determination.
(2) If the corporation does not correct
each ground for dissolution or demonstrate to the reasonable satisfaction of
the Secretary of State, within 45 days after notice is given that each ground
determined by the Secretary of State does not exist, the Secretary of State
shall administratively dissolve the corporation, and in the case of a public
benefit corporation shall notify the Attorney General in writing.
(3) A corporation administratively
dissolved continues its corporate existence but may not carry on any activities
except those necessary to wind up and liquidate its affairs under ORS 65.637
and notify its claimants under ORS 65.641 and 65.644.
(4) The administrative dissolution of a
corporation does not terminate the authority of its registered agent. [1989
c.1010 §139; 1993 c.190 §6]
65.654
Reinstatement following administrative dissolution. (1) A corporation administratively dissolved
under ORS 65.651 may apply to the Secretary of State for reinstatement within
five years from the date of dissolution. The application must:
(a) State the name of the corporation and
the effective date of its administrative dissolution; and
(b) State that the ground or grounds for
dissolution either did not exist or have been eliminated.
(2) If the Secretary of State determines
that the application contains the information required by subsection (1) of
this section, that the information is correct, and that the corporations name
satisfies the requirements of ORS 65.094, the Secretary of State shall
reinstate the corporation.
(3) When reinstatement is effective, it
relates back to and takes effect as of the effective date of the administrative
dissolution and the corporation resumes carrying on its activities as if the
administrative dissolution had never occurred. [1989 c.1010 §140; 1995 c.215 §14]
65.657
Appeal from denial of reinstatement. (1) If the Secretary of State denies a corporations application for
reinstatement following administrative dissolution, the Secretary of State
shall give written notice to the corporation that explains the reason or
reasons for denial.
(2) Such denial of reinstatement shall be
reviewable pursuant to ORS 183.484 and shall not constitute a contested case
order. [1989 c.1010 §141]
(Judicial
Dissolution)
65.661
Grounds for judicial dissolution. (1) The circuit courts may dissolve a corporation:
(a) In a proceeding by the Attorney
General if it is established that:
(A) The corporation obtained its articles
of incorporation through fraud;
(B) The corporation has exceeded or abused
the authority conferred upon it by law;
(C) The corporation has fraudulently
solicited money or has fraudulently used the money solicited;
(D) The corporation is a public benefit
corporation and the corporate assets are being misapplied or wasted; or
(E) The corporation is a public benefit
corporation and is no longer able to carry out its purposes;
(b) Except as provided in the articles or
bylaws of a religious corporation, in a proceeding by 50 members or members
holding five percent or more of the voting power, whichever is less, or by a
director or any person specified in the articles, if it is established that:
(A) The directors are deadlocked in the
management of the corporate affairs, and the members, if any, are unable to
break the deadlock;
(B) The directors or those in control of
the corporation have acted, are acting or will act in a manner that is illegal,
oppressive of fraudulent;
(C) The members are deadlocked in voting
power and have failed, for a period that includes at least two consecutive
annual meeting dates, to elect successors to directors whose terms have
expired;
(D) The corporate assets are being
misapplied or wasted; or
(E) The corporation is a public benefit or
religious corporation and is no longer able to carry out its purposes;
(c) In a proceeding by a creditor if it is
established that:
(A) The creditors claim has been reduced
to judgment, the execution on the judgment has been returned unsatisfied and
the corporation is insolvent; or
(B) The corporation has admitted in
writing that the creditors claim is due and owing and the corporation is
insolvent; or
(d) In a proceeding by the corporation to
have its voluntary dissolution continued under court supervision.
(2) Prior to dissolving a corporation, the
court shall consider whether:
(a) There are reasonable alternatives to
dissolution;
(b) Dissolution is in the public interest,
if the corporation is a public benefit corporation; or
(c) Dissolution is the best way of
protecting the interests of members, if the corporation is a mutual benefit
corporation. [1989 c.1010 §142]
65.664
Procedure for judicial dissolution. (1) Venue for a proceeding by the Attorney General to dissolve a
corporation lies in
(2) It is not necessary to make directors
or members parties to a proceeding to dissolve a corporation unless relief is
sought against them individually.
(3) A court in a proceeding brought to
dissolve a corporation may issue injunctions, appoint a receiver or custodian
pendente lite with all powers and duties the court directs, take other action
required to preserve the corporate assets wherever located, and carry on the
activities of the corporation until a full hearing can be held.
(4) A person other than the Attorney
General who brings an involuntary dissolution proceeding for a public benefit
or religious corporation shall forthwith give written notice of the proceeding
to the Attorney General who may intervene. [1989 c.1010 §143]
65.667
Receivership or custodianship.
(1) A court in a judicial proceeding brought to dissolve a public benefit or
mutual benefit corporation may appoint one or more receivers to wind up and
liquidate the affairs of the corporation, or one or more custodians to manage
the affairs of the corporation. The court shall hold a hearing, after notifying
all parties to the proceeding and any interested persons designated by the
court, before appointing a receiver or custodian. The court appointing a
receiver or custodian has exclusive jurisdiction over the corporation and all
its property wherever located.
(2) The court may appoint an individual or
a domestic or foreign business or nonprofit corporation, authorized to transact
business in this state, as a receiver or custodian. The court may require the
receiver or custodian to post bond, with or without sureties, in an amount the
court directs.
(3) The court shall describe the powers
and duties of the receiver or custodian in its appointing order, which may be
amended periodically. Among other powers:
(a) The receiver:
(A) May dispose of all or any part of the
assets of the corporation wherever located, at a public or private sale, if
authorized by the court, provided, however, that the receivers power to
dispose of the assets of the corporation is subject to any trust and other
restrictions that would be applicable to the corporation; and
(B) May sue and defend in the receivers
own name as receiver of the corporation in all courts of this state.
(b) The custodian may exercise all of the
powers of the corporation, through or in place of its board of directors or
officers, to the extent necessary to manage the affairs of the corporation in
the best interests of its members and creditors.
(4) The court during a receivership may
redesignate the receiver a custodian, and during a custodianship may
redesignate the custodian a receiver, if doing so is in the best interest of
the corporation, its members and creditors.
(5) The court periodically during the
receivership or custodianship may order compensation paid and expense
disbursements or reimbursements made to the receiver or custodian and the
receivers or custodians attorney from the assets of the corporation or
proceeds from the sale of the assets. [1989 c.1010 §144]
65.671
Judgment of dissolution. (1)
If after a hearing the court determines that one or more grounds for judicial
dissolution described in ORS 65.661 exist, it may enter a judgment dissolving
the corporation and specifying the effective date of the dissolution. The clerk
of the court shall deliver a certified copy of the judgment to the Office of
the Secretary of State for filing.
(2) After entering the judgment of
dissolution, the court shall direct the winding up and liquidation of the
corporations affairs in accordance with ORS 65.637 and the notification of
claimants in accordance with ORS 65.641 and 65.644. [1989 c.1010 §145; 2003
c.576 §329]
(Disposition
of Assets)
65.674
Deposit with Department of State Lands. Assets of a dissolved corporation which should be transferred to a
creditor, claimant or member of the corporation who cannot be found or who is
not competent to receive them shall be reduced to cash unless they are subject
to known trust restrictions and deposited with the Department of State Lands
for safekeeping. However, in the discretion of the Director of the Department
of State Lands, property of unusual historic or aesthetic interest may be
received and held in kind. The receiver or other liquidating agent shall
prepare in duplicate and under oath a statement containing the names and
last-known addresses of the persons entitled to such funds. One of the
statements shall be filed with the Department of State Lands and another shall
be delivered to the Secretary of State for filing. The funds shall then escheat
to and become the property of the State of
FOREIGN
CORPORATIONS
(Authority to
Transact Business)
65.701
Authority to transact business required. (1) A foreign corporation may not transact business in this state
until it has been authorized to do so by the Secretary of State.
(2) The following activities, among
others, do not constitute transacting business within the meaning of subsection
(1) of this section:
(a) Maintaining, defending or settling any
proceeding.
(b) Holding meetings of the board of
directors or members or carrying on other activities concerning internal
corporate affairs.
(c) Maintaining bank accounts.
(d) Maintaining offices or agencies for
the transfer, exchange and registration of the corporations own memberships or
securities or maintaining trustees or depositaries with respect to those
securities.
(e) Selling through independent
contractors.
(f) Soliciting or obtaining orders,
whether by mail or through employees or agents or otherwise, if the orders
require acceptance outside this state before they become contracts.
(g) Creating or acquiring indebtedness,
mortgages and security interests in real or personal property.
(h) Securing or collecting debts or
enforcing mortgages and security interests in property securing the debts.
(i) Owning, without more, real or personal
property.
(j) Conducting an isolated transaction
that is completed within 30 days and that is not one in the course of repeated
transactions of a like nature.
(k) Transacting business in interstate
commerce.
(L) Soliciting funds.
(3) The list of activities in subsection
(2) of this section is not exhaustive. [1989 c.1010 §147]
65.704
Consequences of transacting business without authority. (1) A foreign corporation transacting
business in this state without authorization from the Secretary of State may
not maintain a proceeding in any court in this state until it obtains
authorization from the Secretary of State to transact business in this state.
(2) The successor to or assignee of a
foreign corporation that transacted business in this state without authority to
do so may not maintain a proceeding on its cause of action in any court in this
state until the foreign corporation or its successor obtains authorization from
the Secretary of State to transact business in this state.
(3) A court may stay a proceeding
commenced by a foreign corporation, its successor or assignee until it
determines whether the foreign corporation or its successor requires authorization
from the Secretary of State to transact business in this state. If it so
determines, the court may further stay the proceeding until the foreign
corporation or its successor obtains the authorization.
(4) A foreign corporation that transacts
business in this state without authority shall be liable to this state for the
years or parts thereof during which it transacted business in this state
without authority in an amount equal to all fees that would have been imposed
by this chapter upon such corporation had it duly applied for and received
authority to transact business in this state as required by this chapter and
thereafter filed all reports required by this chapter.
(5) Notwithstanding subsections (1) and
(2) of this section, the failure of a foreign corporation to obtain authority
to transact business in this state does not impair the validity of its
corporate acts or prevent it from defending any proceeding in this state. [1989
c.1010 §148]
65.707
Application for authority to transact business. (1) A foreign corporation may apply for
authority to transact business in this state by delivering an application to
the Office of the Secretary of State for filing. The application must set
forth:
(a) The name of the foreign corporation
or, if its name is unavailable for use in this state, a corporate name that
satisfies the requirements of ORS 65.717;
(b) The name of the state or country under
whose law it is incorporated;
(c) The date of incorporation and period
of duration if not perpetual;
(d) The address including street and
number and mailing address, of its principal office;
(e) The address, including street and
number, of its registered office in this state and the name of its registered
agent at that office;
(f) The names and respective addresses of
the president and secretary of the foreign corporation;
(g) Whether the foreign corporation has
members; and
(h) Whether the corporation, if it had
been incorporated in this state, would be a public benefit, mutual benefit or
religious corporation.
(2) The foreign corporation shall deliver
with the completed application a certificate of existence or a document of
similar import, current within 60 days of delivery and authenticated by the
official having custody of corporate records in the state or country under
whose law it is incorporated.
(3) A foreign corporation shall not be
denied authority to transact business in this state by reason of the fact that
the laws of the state or country under which the corporation is organized
governing its organization and internal affairs differ from the laws of this
state. [1989 c.1010 §149]
65.711
Amendment to application for authority. (1) A foreign corporation authorized to transact business in this
state shall deliver an amendment to the application for authority to transact
business in this state to the Office of the Secretary of State for filing if it
changes:
(a) Its corporate name as shown on the
records of the office;
(b) The period of its duration; or
(c) Its designation under ORS 65.707 as a
public benefit, mutual benefit or religious corporation.
(2) The amendment to the application for
authority to transact business in this state shall set forth the corporate name
shown on the records of the office and the new corporate name, the new period
of duration or the new designation as public benefit, mutual benefit or
religious corporation. The corporate name as changed must satisfy the
requirements of ORS 65.717. [1989 c.1010 §150; 1993 c.190 §7]
65.714
Effect of authority. (1) A
foreign corporation authorized to transact business in this state has the same
but no greater rights and enjoys the same but no greater privileges as, and
except as otherwise provided by this chapter is subject to the same duties,
restrictions, penalties and liabilities now or later imposed on, a domestic
corporation of like character.
(2) The filing by the Secretary of State
of an application or amendment to the application for authority to transact
business shall constitute authorization to transact business in this state,
subject to the right of the Secretary of State to revoke the authorization.
(3) This chapter does not authorize this
state to regulate the organization or internal affairs of a foreign corporation
authorized to transact business in this state. [1989 c.1010 §151; 2005 c.22 §49]
65.717
Corporate name of foreign corporation. (1) Except as provided in subsection (2) of this section, the
Secretary of State shall not authorize a foreign corporation to transact
business in this state unless the corporate name of the corporation satisfies
the requirements of ORS 65.094.
(2) If a corporate name, professional
corporate name, business corporate name, cooperative name, limited partnership
name, business trust name, reserved name, registered corporate name or assumed
business name of active record with the office is not distinguishable on the
records of the office from the corporate name of the applicant foreign
corporation, the Secretary of State shall not authorize the applicant to
transact business in this state unless the foreign corporation states the
corporate name on the application for authority to transact business in this
state under ORS 65.707 as (name under which incorporated), a corporation of
(place of incorporation), the entirety of which shall be the real and true
name of the corporation under ORS chapter 648.
(3) If a foreign corporation authorized to
transact business in this state changes its corporate name to one that does not
satisfy the requirements of ORS 65.094, it shall not transact business in this
state under the changed name until it adopts a name satisfying the requirements
of ORS 65.094 and delivers to the Office of the Secretary of State for filing
an amendment to the application for authority under ORS 65.711. [1989 c.1010 §152]
65.721
Registered office and registered agent of foreign corporation. Each foreign corporation authorized to
transact business in this state shall continuously maintain in this state both:
(1) A registered agent, who shall be:
(a) An individual who resides in this
state;
(b) A corporation, domestic business
corporation, domestic limited liability company or domestic professional
corporation with an office in this state; or
(c) A foreign nonprofit corporation,
foreign business corporation, foreign limited liability company or foreign
professional corporation authorized to transact business in this state with an
office in this state; and
(2) A registered office of the foreign
corporation, which shall be the address, including street and number, of the residence
or office of the registered agent. [1989 c.1010 §153; 2001 c.315 §30]
65.724
Change of registered office or registered agent of foreign corporation. (1) A foreign corporation authorized to
transact business in this state may change its registered office or registered
agent by delivering to the Office of the Secretary of State for filing a
statement of change that sets forth:
(a) The name of the foreign corporation;
(b) If the current registered office is to
be changed, the address, including the street and number, of the new registered
office;
(c) If the current registered agent is to
be changed, the name of the new registered agent and a statement that the new
agent has consented to the appointment; and
(d) A statement that after the change or
changes are made, the street addresses of its registered office and the office
or residence address of its registered agent will be identical.
(2) If the registered agent changes the
street address of the agents office or residence, the registered agent shall
change the street address of the registered office of any foreign corporation
for which the agent is the registered agent by notifying the corporation in
writing of the change and signing, either manually or in facsimile, and
delivering to the Office of the Secretary of State for filing a statement of
change that complies with the requirements of subsection (1) of this section
and recites that the corporation has been notified of the change.
(3) The filing of the statement under this
section by the Office of the Secretary of State shall terminate the existing
registered office or agent, or both, on the effective date of the filing by the
Office of the Secretary of State and establish the newly appointed registered
office or agent, or both, as that of the foreign corporation. [1989 c.1010 §154]
65.727
Resignation of registered agent of foreign corporation. (1) The registered agent of a foreign
corporation may resign as agent by delivering a signed statement of resignation
to the Office of the Secretary of State and giving notice in the form of a copy
of the statement to the foreign corporation for filing. The statement of
resignation may include a statement that the registered office is also
discontinued.
(2) Upon receipt of the signed statement
in proper form, the Secretary of State shall file the resignation statement.
The copy of the statement given to the foreign corporation under subsection (1)
of this section shall be addressed to the foreign corporation at the foreign
corporations mailing address or the foreign corporations principal office as
shown on the records of the Office of the Secretary of State.
(3) The agency appointment is terminated,
and the registered office discontinued if so provided in the signed statement
under subsection (1) of this section on the 31st day after the date on which
the statement was filed by the Office of the Secretary of State unless the
foreign corporation sooner appoints a successor registered agent as provided in
ORS 65.724, thereby terminating the capacity of the prior agent. [1989 c.1010 §155;
1993 c.190 §8]
65.731
Service on foreign corporation.
The provisions of ORS 60.731, relating to service on foreign corporations,
shall apply to foreign nonprofit corporations, except that for the purpose of
this section the reference therein to this chapter means ORS chapter 65. [1989
c.1010 §156]
(Withdrawal)
65.734
Withdrawal of foreign corporation. (1) A foreign corporation authorized to transact business in this
state may apply to the Office of the Secretary of State to withdraw from this
state. The application shall set forth:
(a) The name of the foreign corporation
and the name of the state or country under whose law it is incorporated;
(b) That it is not transacting business in
this state and that it surrenders its authority to transact business in this
state;
(c) That it revokes the authority of its
registered agent to accept service on its behalf and appoints the Secretary of
State as its agent for service of process in any proceeding based on a cause of
action arising during the time it was authorized to transact business in this
state;
(d) A mailing address to which the person
initiating any proceedings may mail to the foreign corporation a copy of any
process served on the Secretary of State under paragraph (c) of this
subsection; and
(e) A commitment to notify the Secretary
of State for a period of five years from the date of withdrawal of any change
in the mailing address.
(2) Upon filing by the Office of the
Secretary of State of the application to withdraw, the authority of the foreign
corporation to transact business in this state shall cease. [1989 c.1010 §157]
(Administrative
Revocation of Authority)
65.737
Grounds for administrative revocation. The Secretary of State may commence a proceeding under ORS 65.741 to
revoke the authority of a foreign corporation to transact business in this
state if:
(1) The foreign corporation does not
deliver its annual report to the Secretary of State within the time prescribed
by this chapter;
(2) The foreign corporation does not pay
within the time prescribed by this chapter any fees imposed by this chapter;
(3) The foreign corporation has failed to
appoint or maintain a registered agent or registered office in this state as
prescribed by this chapter;
(4) The foreign corporation does not
inform the Secretary of State under ORS 65.724 or 65.727 that its registered
agent or registered office has changed, that its registered agent has resigned,
or that its registered office has been discontinued; or
(5) The Secretary of State receives a duly
authenticated certificate from the official having custody of corporate records
in the state or country under whose law the foreign corporation is incorporated
stating that the foreign corporation has been dissolved or disappeared as the
result of a merger. [1989 c.1010 §158; 2005 c.22 §50]
65.741
Procedure for and effect of administrative revocation. (1) If the Secretary of State determines
that one or more grounds exist under ORS 65.737 for revocation of authority of
a foreign corporation to transact business in this state, the Secretary of
State shall give the foreign corporation written notice of that determination.
(2) If the foreign corporation does not
correct each ground for revocation or demonstrate to the reasonable
satisfaction of the Secretary of State, within 45 days after notice is given,
that each ground for revocation determined by the Secretary of State does not
exist, the Secretary of State shall administratively revoke the foreign
corporations authority, and in the case of a foreign corporation that would
have been a public benefit corporation had it been incorporated in this state,
shall notify the Attorney General in writing.
(3) The authority of a foreign corporation
to transact business in this state ceases as of the date of revocation of its
authority to transact business in this state.
(4) The Secretary of States revocation of
a foreign corporations authority to transact business in this state appoints
the Secretary of State the foreign corporations agent for service of process
in any proceeding based on a cause of action which arose during the time the
foreign corporation was authorized to transact business in this state.
(5) Revocation of a foreign corporations
authority to transact business in this state terminates the authority of the
registered agent of the corporation. [1989 c.1010 §159; 1991 c.231 §12; 1993
c.190 §9]
65.744
Appeal from administrative revocation. In addition to any other legal remedy which may be available, a foreign
corporation shall have the right to appeal the Secretary of States revocation
of its authority to transact business in this state pursuant to the provisions
of ORS chapter 183. Such revocation shall be reviewable pursuant to ORS 183.484
and shall not constitute a contested case order. [1989 c.1010 §160]
65.747
Reinstatement following administrative revocation. (1) A foreign corporation which has had its
authority revoked under ORS 65.737 may apply to the Secretary of State for
reinstatement within five years from the date of revocation. The application
shall:
(a) State the name of the corporation and
the effective date its authority was revoked; and
(b) State that the ground or grounds for
revocation of authority either did not exist or have been eliminated.
(2) If the Secretary of State determines
that the application contains the information required by subsection (1) of
this section, that the information is correct and that the corporations name
satisfies the requirements of ORS 65.717, the Secretary of State shall
reinstate the authority.
(3) When the reinstatement is effective,
it relates back to and takes effect as of the effective date of the
administrative revocation of authority and the corporation resumes carrying on
its business as if the administrative revocation of authority had never
occurred. [1989 c.1010 §160a; 1995 c.215 §15]
(Judicial
Revocation of Authority)
65.751
Grounds for judicial revocation. (1) The circuit courts may revoke the authority of a foreign
corporation to transact business in this state:
(a) In a proceeding by the Attorney
General if it is established that:
(A) The corporation obtained its authority
to transact business in this state through fraud;
(B) The corporation has exceeded or abused
the authority conferred upon it by law;
(C) The corporation would have been a
public benefit corporation had it been incorporated in this state and its
corporate assets are being misapplied or wasted;
(D) The corporation would have been a
public benefit corporation had it been incorporated in this state and it is no
longer able to carry out its purposes;
(E) An incorporator, director, officer or
agent of the corporation signed a document knowing it was false in any material
respect with the intent that the document be delivered to the Office of the
Secretary of State for filing; or
(F) The corporation has fraudulently
solicited money or has fraudulently used the money solicited.
(b) Except as provided in the articles or
bylaws of a foreign corporation that would have been a religious corporation
had it been incorporated in this state, in a proceeding by 50 members or
members holding five percent or more of the voting power, whichever is less, or
by a director or any person specified in the articles, if it is established that:
(A) The directors are deadlocked in the
management of the corporate affairs, and the members, if any, are unable to
break the deadlock;
(B) The directors or those in control of
the corporation have acted, are acting, or will act in a manner that is illegal,
oppressive or fraudulent;
(C) The members are deadlocked in voting
power and have failed, for a period that includes at least two consecutive
annual meeting dates, to elect successors to directors whose terms have
expired;
(D) The corporate assets are being
misapplied or wasted; or
(E) The corporation is a foreign
corporation that would have been a public benefit or religious corporation had
it been incorporated in this state, and is no longer able to carry out its
purposes.
(c) In a proceeding by a creditor if it is
established that:
(A) The creditors claim has been reduced
to judgment, the execution on the judgment returned unsatisfied, and the
corporation is insolvent; or
(B) The corporation has admitted in
writing that the creditors claim is due and owing and the corporation is
insolvent.
(2) Prior to revoking a corporations
authority, the court shall consider whether:
(a) There are reasonable alternatives to
revocation of authority;
(b) Revocation of authority is in the
public interest, if the corporation is a foreign corporation that would have
been a public benefit corporation had it been incorporated in this state; or
(c) Revocation of authority is the best
way to protect the interests of members, if the corporation is a foreign corporation
that would have been a mutual benefit corporation had it been incorporated in
this state. [1989 c.1010 §161]
65.754
Procedure for judicial revocation of authority. (1) Venue for a proceeding by the Attorney
General to revoke a foreign corporations authority lies in
(2) It is not necessary to make directors
or members parties to a proceeding to revoke the authority of a corporation.
(3) A court in a proceeding brought to
revoke a corporations authority may issue injunctions, appoint a receiver or
custodian pendente lite with all powers and duties the court directs, take
other action required to preserve the corporate assets located in Oregon and
carry on the corporations Oregon activities until a full hearing can be held.
(4) A person other than the Attorney
General who brings a revocation proceeding for a foreign corporation that would
have been a public benefit or religious corporation had it been incorporated in
this state, shall forthwith give written notice of the proceeding to the
Attorney General who may intervene. [1989 c.1010 §162]
65.757
Judgment of revocation. (1)
If after a hearing the court determines that one or more grounds for judicial
revocation of authority described in ORS 65.751 exists, it may enter a judgment
revoking the corporations authority to transact business in
(2) The authority of a foreign corporation
to transact business in
(3) The judgment of revocation of a
foreign corporations authority to transact business in this state appoints the
Secretary of State the foreign corporations agent for service of process in
any proceeding based on a cause of action which arose during the time the
foreign corporation was authorized to transact business in this state.
(4) Revocation of a foreign corporations
authority to transact business in this state terminates the authority of the
registered agent of the corporation. [1989 c.1010 §163; 2003 c.576 §330]
RECORDS AND
REPORTS
(Records)
65.771
Corporate records. (1) A
corporation shall keep as permanent records minutes of all meetings of its
members and board of directors, a record of all corporate action taken by the
members or directors without a meeting, and a record of all actions taken by
committees of the board of directors in place of the board of directors on
behalf of the corporation.
(2) A corporation shall maintain
appropriate accounting records.
(3) A corporation or its agent shall
maintain a record of its members in a form that permits preparation of a list
of the name and address of all members, in alphabetical order by class showing
the number of votes each member is entitled to vote.
(4) A corporation shall maintain its
records in written form or in another form capable of conversion into written
form within a reasonable time.
(5) A corporation shall keep a copy of the
following records for inspection:
(a) Articles or restated articles of
incorporation and all amendments to them currently in effect;
(b) Bylaws or restated bylaws and all
amendments to them currently in effect;
(c) Resolutions adopted by its board of
directors relating to the characteristics, qualifications, rights, limitations
and obligations of members of any class or category of members;
(d) The minutes of all meetings of members
and records of all actions approved by the members for the past three years;
(e) Written communications required by
this chapter and those regarding general membership matters made to members
within the past three years;
(f) A list of the names and business or
home addresses of its current directors and officers;
(g) The last three annual financial
statements, if any. The statements may be consolidated or combined statements
of the corporation and one or more of its subsidiaries or affiliates, as
appropriate, including a balance sheet and statement of operations, if any, for
that year. 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;
(h) The last three accountants reports if
annual financial statements are reported upon by a public accountant; and
(i) The most recent annual report
delivered to the Secretary of State under ORS 65.787. [1989 c.1010 §164]
65.774
Inspection of records by members. (1) Subject to subsection (5) of this section and ORS 65.777 (3), a
member is entitled to inspect and copy, at a reasonable time and location
specified by the corporation, any of the records of the corporation described
in ORS 65.771 (5) if the member gives the corporation written notice of the
members demand at least five business days before the date on which the member
wishes to inspect and copy.
(2) Subject to subsection (5) of this
section, a member is entitled to inspect and copy, at a reasonable time and
reasonable location specified by the corporation, any of the following records
of the corporation if the member meets the requirements of subsection (3) of
this section and gives the corporation written notice of the members demand at
least five business days before the date on which the member wishes to inspect
and copy:
(a) Excerpts from any records required to
be maintained under ORS 65.771 (1), to the extent not subject to inspection
under subsection (1) of this section;
(b) Accounting records of the corporation;
and
(c) Subject to ORS 65.782, the membership
list.
(3) A member may inspect and copy the
records identified in subsection (2) of this section only if:
(a) The members demand is made in good
faith and for a proper purpose;
(b) The member describes with reasonable
particularity the purpose and the records the member desires to inspect; and
(c) The records are directly connected
with this purpose.
(4) This section does not affect:
(a) The right of a member to inspect
records under ORS 65.224 or, if the member is in litigation with the
corporation, to the same extent as any other litigant; or
(b) The power of the court, independently
of this chapter, to compel the production of corporate records for examination.
(5)(a) The articles or bylaws of a
religious corporation may limit or abolish the right of a member under this
section to inspect and copy any corporate record.
(b) The articles of a public benefit
corporation organized primarily for political or social action, including but
not limited to political or social advocacy, education, litigation or a combination
thereof, may limit or abolish:
(A) The right of a member to obtain from
the corporation information as to the identity of contributors to the
corporation; and
(B) The right of a member or the members
agent or attorney to inspect or copy the membership list if the corporation
provides a reasonable means to mail communications to other members through the
corporation at the expense of the member making the request. [1989 c.1010 §165]
65.777
Scope of inspection right.
(1) A members agent or attorney has the same inspection and copying rights as
the member the agent or attorney represents.
(2) The right to copy records under ORS
65.774 includes, if reasonable, the right to receive copies made by
photographic, xerographic or other means.
(3) The corporation may impose a
reasonable charge, covering the costs of labor and material, for copies of any
documents provided to the member. The charge may not exceed the estimated cost
of production or reproduction of the records.
(4) The corporation may comply with a
members demand to inspect the record of members under ORS 65.774 (2)(c) by
providing the member with a list of its members that was compiled no earlier
than the date of the members demand. [1989 c.1010 §166]
65.781
Court-ordered inspection; attorney fees. (1) If a corporation does not allow a member who complies with ORS
65.774 (1) to inspect and copy any records required by ORS 65.774 (1) to be
available for inspection, the circuit court in the county where the corporations
principal office, or, if none in this state, its registered office, is located
may summarily order inspection and copying of the records demanded at the
corporations expense upon application of the member.
(2) If a corporation does not within a
reasonable time allow a member to inspect and copy any other record, the member
who complies with ORS 65.774 (2) and (3) may apply to the circuit court in the
county where the corporations principal office, or, if none in this state, its
registered office, is located for an order to permit inspection and copying of
the records demanded.
(3) The court may award reasonable
attorney fees to the prevailing party in an action under this section.
(4) If the court orders inspection and
copying of the records demanded, it may impose reasonable restrictions on the
use or distribution of the records by the demanding member.
(5) No order shall be issued under this
section without notice to the corporation at least five days in advance of the
time specified for the hearing unless a different period is fixed by the court.
The members request shall be set for hearing at the earliest possible time and
shall take precedence over all matters, except matters of the same character
and hearings on preliminary injunctions under ORCP 79 B(3). [1989 c.1010 §167;
1995 c.618 §42]
65.782
Limitations on use of membership list. Without consent of the board, a membership list or any part of a
membership list may not be obtained or used by any person for any purpose
unrelated to a members interest as a member. Without limiting the generality
of this section, without the consent of the board, a membership list or any
part thereof may not be:
(1) Used to solicit money or property
unless such money or property will be used solely to solicit the votes of the
members in an election to be held by the corporation;
(2) Used for any commercial purpose; or
(3) Sold or purchased by any person. [1989
c.1010 §168]
(Reports)
65.784
Report to members and other persons of indemnification. If a corporation indemnifies or advances
expenses to a director under ORS 65.391 to 65.401 in connection with a
proceeding by or in the right of the corporation, the corporation shall report
the indemnification or advance in writing to:
(1) The members with or before the notice
of the next meeting of members; and
(2) Any person having the right to
designate or appoint the director no later than 90 days after the first
indemnification or advance. [1989 c.1010 §169; 1991 c.231 §13]
65.787
Annual report. (1) Each
domestic corporation, and each foreign corporation authorized to transact
business in this state, shall by its anniversary deliver to the Office of the
Secretary of State for filing an annual report that sets forth:
(a) The name of the corporation and the
state or country under whose law it is incorporated;
(b) The street address of the registered
office and the name of the registered agent at that office in this state;
(c) If the registered agent is changed,
that the new registered agent has consented to the appointment;
(d) The address including street and
number and mailing address if different from its principal office;
(e) The names and addresses of the
president and secretary of the corporation;
(f) A brief description of the nature of
the activities of the corporation;
(g) Whether or not it has members;
(h) If it is a domestic corporation,
whether it is a public benefit, mutual benefit or religious corporation;
(i) If it is a foreign corporation,
whether it would be public benefit, mutual benefit or religious corporation had
it been incorporated in this state; and
(j) Additional identifying information
that the Secretary of State may require by rule.
(2) The information contained on the
annual report shall be current as of 30 days before the anniversary of the corporation.
(3) The Secretary of State shall mail the
annual report form to any address shown for the corporation in the current
records of the office. The failure of the corporation to receive the annual
report form from the Secretary of State shall not relieve the corporation of
its duty to deliver an annual report to the office as required by this section.
(4) If an annual report does not contain
the information required by this section, the Secretary of State shall promptly
notify the reporting domestic or foreign corporation in writing and return the
report to it for correction. The domestic or foreign corporation must correct
the error within 45 days after the Secretary of State gives such notice.
(5) A domestic or foreign corporation may
deliver to the Office of the Secretary of State for filing an amendment to the
annual report if a change in the information set forth in the annual report
occurs after the report is delivered to the Office of the Secretary of State
for filing and before the next anniversary. This subsection applies only to a
change that is not required to be made by an amendment to the articles of
incorporation. The amendment to the annual report must set forth:
(a) The name of the corporation as shown
on the records of the Office of the Secretary of State; and
(b) The information as changed. [1989
c.1010 §170; 2007 c.186 §8]
TRANSFER OF
ASSETS OF HOSPITAL
65.800
Definitions for ORS 65.803 to 65.815. For purposes of ORS 65.803 to 65.815:
(1) Hospital means a hospital as defined
in ORS 442.015 (19).
(2) Noncharitable entity means any
person or entity that is not a public benefit or religious corporation and is
not wholly owned or controlled by one or more public benefit or religious
corporations. [1997 c.291 §2; 2001 c.104 §20]
65.803
Hospitals operated by nonprofit corporation; transfer of assets; approval by
Attorney General. (1) Any
public benefit or religious corporation that operates a hospital must provide
written notice to, and obtain the written approval of, the Attorney General
before closing any transaction to do either of the following:
(a) Sell, transfer, lease, exchange,
option, convey, merge or otherwise dispose of all or a significant portion of
its hospital assets to a noncharitable entity or to an unrelated charitable
entity.
(b) Transfer control, responsibility or
governance of a significant portion of the hospital assets or hospital
operations of the public benefit or religious corporation to a noncharitable
entity.
(2) This section does not apply to a public
benefit or religious corporation if any of the following apply:
(a) The transaction is in the usual and
regular course of the activities of the public benefit or religious
corporation.
(b) The public benefit or religious
corporation has furnished the Attorney General with a detailed written
statement describing the proposed transaction and requesting a written waiver
of the requirements imposed by this section, and the Attorney General:
(A) Has given the public benefit or
religious corporation a written waiver of the requirements imposed by this
section as to the proposed transaction; or
(B) Has not made a written determination
with regard to the request within 45 days after receiving the request.
(c) The Attorney General, by rule, has
excepted this kind of transaction.
(3) The notice and approval required by
ORS 65.800 to 65.815 are in addition to any other notice or approval required
by this chapter or other applicable law.
(4) Notice and approval is not required
under ORS 65.800 to 65.815 if a political subdivision of the state controls the
operation of the hospital.
(5) Any person may make a written request
to the Attorney General that the person be given notice of requests for
approval received by the Attorney General under this section. The Attorney
General shall maintain a mailing list of persons who have requested
notification under this subsection and shall promptly mail a copy of any
request for approval received under this section to the persons on the list. In
addition, the Attorney General shall promptly mail a copy of any request for
waiver received under subsection (2) of this section to the persons on the list
upon receiving the request for waiver. The Attorney General may not grant a
waiver under subsection (2) of this section until 14 days after the mailing
required by this subsection. [1997 c.291 §3]
65.805
Notice to Attorney General; fee; trade secrets. (1) The notice to the Attorney General
required by ORS 65.803 must be accompanied by any application fee imposed under
ORS 65.813 (3) and must contain a detailed statement describing the proposed
transaction along with any other information the Attorney General requires by
rule.
(2)(a) Upon a showing satisfactory to the
Attorney General by a party to the proposed transaction, any material required
to be submitted to the Attorney General under subsection (1) of this section is
a trade secret under ORS 192.501. The Attorney General shall classify the
material as confidential and the material shall not be disclosed except as
provided in paragraph (b) of this subsection unless the Attorney General
determines that the material is necessary to the determination of an issue
being considered at a public hearing as provided in ORS 65.807.
(b) To the extent that the material, or
any portion thereof, would otherwise qualify as a trade secret under ORS
192.501, no action taken by the Attorney General, any authorized employee of
the Department of Justice or any expert or consultant employed pursuant to ORS
65.813 in inspecting or reviewing such information shall affect its status as a
trade secret. [1997 c.291 §4]
65.807
Public hearing; waiver; notice.
(1) Before issuing a written decision under ORS 65.809, the Attorney General
shall conduct a public hearing unless the Attorney General waives the
requirement of a hearing. If a hearing is held, the Attorney General shall
provide at least 14 days notice of the time and place of the hearing in one or
more newspapers of general circulation in the affected community and to the
governing body of the county in which the hospital is located.
(2) Before waiving a hearing under this
section, the Attorney General must mail notice of the intended waiver of public
hearing to all persons on the mailing list maintained by the Attorney General
under ORS 65.803 (5). The Attorney General may not take further action on the
request for approval until at least 14 days after the mailing of the notice
required by this subsection. [1997 c.291 §5]
65.809
Time for Attorney General decision; nature of decision; appeal. (1) Within 60 days after receipt of the
notice required by ORS 65.803, the Attorney General shall notify the public
benefit or religious corporation in writing of the Attorney Generals decision
on the proposed transaction. The Attorney General may extend this period for an
additional 45 days if the extension is necessary to obtain information as
provided in ORS 65.813 (1). The period may be extended beyond 105 days only
with the agreement of all parties to the transaction.
(2) The Attorney General may approve the
transaction, give conditional approval to the transaction or decline to approve
the transaction. If the Attorney General does not approve the proposed
transaction, the Attorney General shall notify each party to the proposed
transaction, in writing, specifying the reasons for the disapproval.
(3) Any party to the proposed transaction,
within 60 days after receipt of the Attorney Generals final order, may appeal
the order as provided in ORS chapter 183. For purposes of the judicial review,
the specifications required to be set forth in the written notice from the
Attorney General shall be deemed the Attorney Generals findings of fact and
conclusions of law. [1997 c.291 §6]
65.811
Disapproval of proposed transfer of assets. The Attorney General shall approve any proposed transaction subject to
ORS 65.803 unless the Attorney General finds any of the following:
(1) The terms and conditions of the
proposed transaction are not fair and reasonable to the public benefit or
religious corporation.
(2) The proposed transaction will result
in inurement to any private person or entity.
(3) The proposed transaction is not at
fair market value.
(4) The proposed use of the proceeds from
the transaction is inconsistent with any charitable trust to which the assets
are subject.
(5) The proposed transaction involves or
constitutes a breach of trust.
(6) The Attorney General has not been
provided sufficient information to evaluate adequately the proposed transaction
and the effects of the proposed transaction on the public.
(7) The proposed transaction significantly
diminishes the availability or accessibility of health care services to the
affected community.
(8) The proposed transaction is not in the
public interest.
(9) The proposed transaction does not comply
with all other legal requirements. [1997 c.291 §7]
65.813
Consultants; cost; rules; fee.
(1) Within the time periods specified in ORS 65.809, and for the purpose of
evaluating the factors identified in ORS 65.811, the Attorney General may do
any of the following:
(a) Contract with, consult with or receive
advice from any state agency pursuant to those terms and conditions that the
Attorney General considers appropriate.
(b) In the Attorney Generals sole
discretion, contract with, consult with or receive advice from consultants to
assist in the Attorney Generals review of the proposed transaction. The
consultants shall be qualified and expert in the type of transactions under
review. Before engaging any consultant, the Attorney General shall communicate
with the parties to the proposed transaction regarding the engagement.
(2) The cost of any contract authorized
under subsection (1) of this section shall be no more than is reasonably
necessary to conduct the Attorney Generals review and evaluation. Any contract
entered into by the Attorney General under this section shall be exempt from
the requirements of ORS chapters 279A and 279B, except ORS 279B.235. All
contract costs incurred by the Attorney General under this section must be paid
by the party to whom the transfer is to be made as described in ORS 65.803 (1).
(3) The Attorney General, by rule, may
impose an application fee for costs incurred in reviewing and evaluating the
proposed transaction. The fee must be paid by the party to whom the transfer is
to be made as described in ORS 65.803 (1). [1997 c.291 §8; 2003 c.794 §195]
65.815
Rules. The Attorney General
may adopt such rules as are necessary to carry out the provisions of ORS 65.800
to 65.815. The Attorney General shall have the authority to ensure compliance
with commitments that inure to the public interest. [1997 c.291 §9]
CEMETERIES
AND CREMATORIES
65.855
Lands of cemetery or crematory corporation; exemption from execution, taxation
and condemnation. A
nonprofit corporation organized and existing solely for the purposes of either
owning and operating a cemetery or cremating dead bodies and burying and caring
for incinerate remains, may purchase or take, by gift or devise, and own and
hold lands for the sole purpose of either a cemetery or a crematory and burial
place for incinerate remains. Such lands shall be exempt from execution, and
from any appropriation for public purposes, and lots or portions of such land
and space in any buildings thereon may be sold, if intended to be used exclusively
for burial purposes, and in no wise with a view to the profit of the members of
such corporation. The land so held for cemetery purposes shall not exceed 600
acres, but if the land already held for such purpose by the corporation is all
practically used, the amount thereof may be increased by adding thereto not
more than 20 acres at any one time. The land so held for the purposes of a
crematory and the burial of incinerate remains shall not exceed 30 acres, but
if the land already held for such purposes by the corporation is all
practically used, the amount thereof may be increased by adding thereto not
more than 10 acres at any one time. Lands held for the purposes described in
this section shall be exempt from taxation as provided in ORS 307.150. [Formerly
61.755]
65.860
Revenues; restrictions on uses of revenue. (1) A nonprofit corporation organized or existing solely for the
purposes of either owning and operating a cemetery or cremating dead bodies and
burying and caring for incinerate remains may, by its bylaws, provide that a
stated percentage of the money received from the sale of lots and burial space,
cremation of bodies, donations, gifts or other sources of revenue shall
constitute an irreducible fund. Any bylaw enacted for the creation of the
irreducible fund cannot be amended to reduce the fund.
(2) The board of directors may direct the
investment of the money in the irreducible fund, but all investments of money
deposited in the fund on or after January 1, 1972, shall be in securities in
classes and amounts approved by the State Treasurer and published in a list
pursuant to ORS 97.820. If a bank or trust company qualified to engage in the
trust business is directed by the board of directors to invest the money in the
irreducible fund, the bank or trust company shall be governed by ORS 130.750 to
130.775 and shall not be required to invest the money according to the list
approved by the State Treasurer. An officer of the corporation shall file with
the Director of the Department of Consumer and Business Services on or before
April 15 of each year a verified statement in duplicate containing the same
information pertaining to the irreducible fund as provided in ORS 97.810 (4)
regarding endowment care funds. The director may require the corporation to
file, as often as the director considers it to be necessary, a detailed report
of the conditions and assets of the irreducible fund.
(3) The interest or income arising from
the irreducible fund provided for in this section or by any bylaws, or so much
thereof as is necessary, shall be devoted exclusively to the preservation and
embellishment of the grounds, buildings and property of the corporation and the
lots and space in buildings or grounds sold to the members of the corporation,
or to the payment of the interest or principal of the debts authorized by
subsection (5) of this section for the purchase of land, erecting buildings,
and improvements. Any surplus thereof not needed or used for such purposes
shall be invested as provided in this section and shall become part of the
irreducible fund.
(4) After paying for the land and the
erection of the original buildings and improvements thereon, all the future
receipts and income of the corporation subject to the provisions in this
section relating to the creation of an irreducible fund, whether from the sale
of lots and burial space, cremation of bodies, donations, gifts and other
sources, shall be applied exclusively to laying out, preserving, protecting,
embellishing and beautifying the cemetery or the crematory and grounds thereof,
and the avenues leading thereto, and to the erection of such buildings and
improvements as may be necessary or convenient for cemetery or crematory
purposes, and to pay the necessary expenses of the corporation.
(5) No debts shall be contracted by such
corporation in anticipation of any future receipts, except for originally
purchasing the lands authorized to be purchased by it, laying out and
embellishing the grounds and avenues, erecting buildings and vaults on such
land, and improving them for the purposes of the corporation. The corporation
may issue bonds or notes for debts so contracted and may secure them by way of
mortgage upon any of its lands, buildings, property and improvements excepting
lots or space conveyed to the members. [Formerly 61.760; 1995 c.144 §14; 1995
c.157 §23; 2001 c.796 §22; 2005 c.348 §124; 2007 c.661 §26]
65.865
Selling land unsuited for burials. If in the board of directors opinion, any portion of the lands of a
nonprofit corporation organized and existing solely for the purposes of either
owning or operating a cemetery or the cremation of dead bodies and the burial
and care of incinerate remains is unsuitable for burial purposes or other
purposes of the corporation, the board of directors may sell such portion and
apply the proceeds to the general purposes of such corporation in the same
proportion and manner as provided by ORS 65.855 to 65.875. [Formerly 61.765]
65.870
Burial lots or space; use, exemption from taxation, execution and liens; lien
for purchase price of gravestone. Burial lots or space for burial of incinerate remains in buildings or
grounds sold by a nonprofit corporation organized and existing solely for the
purposes of either owning and operating a cemetery or cremating dead bodies and
burying and caring for incinerate remains shall be for the sole purpose of
interment or deposit and safekeeping of incinerate remains. Such lots or space
shall be exempt from execution, attachment or other lien or process, if used as
intended by the purchaser thereof from such corporation, or the assigns or
representatives of the purchaser, exclusively for burial purposes, and in no
wise with a view to profit. Such lots or space shall be exempt from taxation as
provided in ORS 307.150. The vendor of any gravestone, however, shall not be
prevented from having and enforcing a lien thereon for all or part of its
purchase price. If a suit is brought to enforce such a lien, the judgment
therein is enforceable thereafter; and, for the purpose of enabling the lien to
be had and enforced, the gravestone shall be deemed personal property and may
be severed and removed, under execution and order of sale, from the lot where
it is situated and may be sold in the same manner as any other personal property.
[Formerly 61.770; 2003 c.576 §331]
65.875
Recording plan; power to improve and regulate grounds. (1) As used in this section, plan means a
document indicating the placement of lots or burial spaces, and of the niches
or inurnment spaces in the buildings erected thereon, as established and
authorized by the cemetery authority.
(2) A nonprofit corporation organized and
existing solely for the purposes of owning and operating a cemetery or
cremating dead bodies and burying and caring for incinerate remains shall cause
a plan of its land and grounds and of the lots laid out by it and of the niches
or burial space in the buildings erected thereon to be made and recorded in the
county in which such grounds and land are located, such lots or spaces to be numbered
by regular consecutive numbers. Such corporation may enclose, improve, and
adorn the grounds, buildings, and avenues, prescribe rules for the designation,
improvement and adorning of lots and burial spaces and for erecting monuments,
and prohibit any use, division, improvement or adornment of a lot or burial
space which it may deem improper. [Formerly 61.775; 1999 c.731 §9]
MISCELLANEOUS
65.951
Short title. This chapter
shall be known and may be cited as the Oregon Nonprofit Corporation Act. [1989
c.1010 §1; 1999 c.59 §16]
65.954
Reservation of power to amend or repeal. All or part of this chapter may be amended, repealed or modified at
any time and all domestic and foreign corporations subject to this chapter are
governed by the amendment, repeal or modification. [1989 c.1010 §2]
65.957
Application to existing domestic corporations; exemptions. (1) This chapter applies to all domestic
corporations in existence on October 3, 1989, that were incorporated under any
general statute of this state providing for incorporation of nonprofit
corporations if power to amend or repeal the statute under which the
corporation was incorporated was reserved.
(2) Without limitation as to any other
corporations that may be outside the scope of subsection (1) of this section,
this chapter does not apply to the following:
(a) The Oregon State Bar and the Oregon
State Bar Professional Liability Fund created under ORS 9.005 to 9.755;
(b) The State Accident Insurance Fund
Corporation created under ORS chapter 656;
(c) The Oregon Insurance Guaranty
Association and the Oregon Life and Health Insurance Guaranty Association
created under ORS chapter 734; and
(d) The Oregon FAIR Plan Association and
the Oregon Medical Insurance Pool created under ORS chapter 735. [1989 c.1010 §172;
1997 c.249 §26; 1999 c.274 §20; 2001 c.922 §11; 2005 c.22 §51]
65.959
Application to corporations relating to condominiums, planned communities or
timeshare estates. For a
corporation organized under this chapter and formed pursuant to ORS chapter 100
or subject to regulation under all or part of the provisions of ORS 94.550 to
94.783 or under ORS 94.803 and 94.807 to 94.945:
(1) A provision of this chapter that may
be avoided by a corporation by a provision in the corporations articles of
incorporation, bylaws or otherwise also may be avoided by a provision in the
declaration, bylaws or other recorded governing document of a planned community
or a condominium.
(2) In the event of a conflict between the
provisions of this chapter and:
(a) The declaration and bylaws of a
condominium and the provisions of ORS chapter 100, the declaration and bylaws
and the provisions of ORS chapter 100 control.
(b) The declaration, bylaws and other
recorded governing documents of a planned community and the provisions of ORS
94.550 to 94.783, the declaration, bylaws and other governing documents and the
provisions of ORS 94.550 to 94.783 control.
(c) The recorded timeshare instrument of a
timeshare plan and the provisions of ORS 94.803 and 94.807 to 94.945, the
recorded timeshare instrument and the provisions of ORS 94.803 and 94.807 to
94.945 control. [2003 c.569 §46]
65.961
Application to qualified foreign corporations. A foreign corporation authorized to engage
in activities in this state on October 3, 1989, is subject to this chapter but
is not required to apply for new authority to engage in activities under this
chapter. [1989 c.1010 §173]
65.964
Saving provisions. (1)
Except as provided in subsections (2), (3) and (4) of this section, the repeal
of a statute by chapter 1010, Oregon Laws 1989, does not affect:
(a) The operation of the statute or any
action taken under it before its repeal;
(b) Any ratification, right, remedy,
privilege, obligation or liability acquired, accrued or incurred under the
statute before its repeal;
(c) Any violation of the statute, or any
penalty, forfeiture or punishment incurred because of the violation, before its
repeal; or
(d) Any proceeding, reorganization or
dissolution commenced under the statute before its repeal. The proceeding,
reorganization or dissolution may be completed in accordance with the statute
as if it had not been repealed.
(2) The provisions of ORS 65.387 to 65.414
shall apply to all indemnification made by a corporation after October 3, 1989,
and all other actions regarding indemnification taken by or on behalf of a
corporation or by a court after October 3, 1989, including all indemnification
made and other actions taken after October 3, 1989, with respect to claims that
arose or matters that occurred prior to October 3, 1989, or pursuant to any
provisions of any articles of incorporation, bylaws, resolutions or agreements
in effect prior to October 3, 1989.
(3) If a penalty or punishment imposed for
violation of a statute repealed by chapter 1010, Oregon Laws 1989, is reduced
by this chapter, the penalty or punishment, if not already imposed, shall be
imposed in accordance with this chapter.
(4) This chapter shall apply to any
amendment to a corporations articles of incorporation filed after October 3,
1989, even if member approval of such amendment occurred prior to October 3,
1989.
(5) Except as specifically provided in
this chapter, nothing in this chapter shall affect any powers the Attorney
General may have under other statutes or common law. [1989 c.1010 §174]
65.967
Severability. If any
provision of this chapter or its application to any person or circumstance is
held invalid by a court of competent jurisdiction, the invalidity does not
affect other provisions or applications of this chapter that can be given
effect without the invalid provision or application, and to this end the
provisions of this chapter are severable. [1989 c.1010 §175]
PENALTY
65.990
Penalty for signing false document. (1) A person commits the crime of falsely signing a document for
filing if the person signs a document knowing it is false in any material
respect with intent that the document be delivered to the Office of the
Secretary of State for filing.
(2) Violation of subsection (1) of this
section is a Class B misdemeanor. [1989 c.1010 §§12,171]
_______________
CHAPTER 66
[Reserved for expansion]
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