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
corporation's 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 United States and any foreign government.
(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 corporation's 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 person's 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 United States,
includes a state, commonwealth, territory and insular possession of the
United States and its agencies and governmental subdivisions.
(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) "United States" includes district, authority, bureau,
commission, department and any other agency of the United States.
(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) (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] 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] (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] (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] 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] (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 State's 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 State's
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 State's 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]
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](1) A certificate bearing the Secretary of
State's 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] (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 corporation's corporate name or the foreign
corporation's 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) 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) (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 member's or director's 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 member's address shown
in the corporation's 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 United States mail
correctly addressed and with first class postage affixed;
(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 member's address
shown in the corporation's 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 member's address shown
in the corporation's 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 corporation's 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) 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) (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) (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) 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 United States or the
Constitution of this state, or both. [1989 c.1010 §19]INCORPORATION 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] (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 corporation's
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 director's or officer's 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] (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 State's 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] 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] (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] (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] (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 corporation's directors cannot readily be assembled because of some
present or imminent catastrophic event. [1989 c.1010 §26] (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 (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] 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] (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 officer's 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 corporation's directors cannot readily be assembled because of some
present or imminent catastrophic event. [1989 c.1010 §30] (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 corporation's 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 (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 United States with respect to the right
to acquire and protect trade names. [1989 c.1010 §32] (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] (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
Oregon. The application must be accompanied by a certificate of existence
or a document of similar import current within 60 days of delivery, duly
authenticated by the official having custody of corporate records in the
state or country under whose law it is incorporated.
(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 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] (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
agent's 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] (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]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) (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] 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] 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) 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](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] 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] 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] (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 creditor's 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)(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] (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
corporation's 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] (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) (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 court's approval. If the court
determines that a proposed discontinuance or settlement will
substantially affect the interest of the corporation's members or a class
of members, the court shall direct that notice be given the members
affected. [1989 c.1010 §50](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) (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 corporation's 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 corporation's bylaws does not
affect the validity of any corporate action. [1989 c.1010 §52] (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 corporation's 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
corporation's 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 corporation's 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] (1) The circuit court
of the county where a corporation's 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 corporation's
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 corporation's
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] (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] (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] (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 member's 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] (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] (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) (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 corporation's 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 member's agent or the member's 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 member's 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 member's agent or the member's 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 member's
agent or the member's 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 corporation's 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
corporation's 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 member's 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] (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] (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
member's 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 proxy's 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 proxy's
authority appearing on the face of the appointment form, a corporation is
entitled to accept the proxy's vote or other action as that of the member
making the appointment. [1989 c.1010 §64] 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] (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 signatory's 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
signatory's 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] (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] (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] (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 member's 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 director's most recent election were then being elected.
(4) Members may not cumulatively vote if the directors and members
are identical. [1989 c.1010 §65] 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) (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 corporation's 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) (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] All directors must be
individuals. The articles of incorporation or bylaws may prescribe other
qualifications for directors. [1989 c.1010 §71] (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] (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] (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 director's 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 director's term, the director
continues to serve until the director's successor is elected, designated
or appointed and qualifies, or until there is a decrease in the number of
directors. [1989 c.1010 §74] 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] (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] (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 director's 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 director's 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 director's 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] (1) The circuit
court of the county where a corporation's 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] (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 corporation's 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] (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] 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) (1) If the time and place of a
director's 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 other's 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] (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] (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] (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 director's 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 director's 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] (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 director's arrival, to holding the meeting or
transacting the business at the meeting;
(b) The director's 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] (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 corporation's
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) (1) A director shall
discharge the duties of a director, including the director's 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 person's
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 corporation's 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] (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
director's 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 director's 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 director's
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] (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 corporation's 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 borrower's liability on the loan. [1989
c.1010 §90; 1991 c.231 §6] (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] (1) The civil liability of
a qualified director for the performance or nonperformance of the
director's 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
director's 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) (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] 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] (1) An officer shall
discharge the officer's 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 person's
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 corporation's articles to the extent
provided in ORS 65.047 (2)(c). [1989 c.1010 §95] (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] (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)
(1) "Corporation" includes any domestic or foreign predecessor
entity of a corporation in a merger or other transaction in which the
predecessor's 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 corporation's 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 corporation's request if the
director's 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 corporation's 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 corporation's request if the officer's 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] (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 individual's
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 director's 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] 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] (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 director's 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 director's 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] Unless the corporation's
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 director's 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] (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] Unless a
corporation's 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] 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] (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
corporation's 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 corporation's power to pay
or reimburse expenses incurred by a director in connection with the
director's 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) (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] (1) Unless the articles provide
otherwise, a corporation's board of directors may adopt one or more
amendments to the corporation's 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 corporation's
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] (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 corporation's 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
amendment's 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 amendment's
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] (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] 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 amendment's 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] (1) A corporation's
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] (1) A corporation's
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 court's 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] 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
corporation's name does not abate a proceeding brought by or against the
corporation in its former name. [1989 c.1010 §114](Amendment of Bylaws) 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
corporation's incorporators, until directors have been chosen, and
thereafter its board of directors may adopt one or more amendments to the
corporation's 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] (1) A corporation's
board of directors may amend or repeal the corporation's 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 corporation's members entitled to vote on bylaws, subject to
ORS 65.467, may amend or repeal the corporation's bylaws even though the
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 (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](1) Without the prior written consent of the Attorney
General or the prior approval of the circuit court of the county where
the corporation's 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] (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] (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] 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] (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] 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] 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]SALE OF ASSETS(1) A corporation may, on the terms and conditions and for the
consideration determined by the board of directors:
(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]
(1) A corporation may sell, lease, exchange or otherwise dispose of all
or substantially all of its property, with or without the goodwill, other
than in the usual and regular course of its activities, on the terms and
conditions and for the consideration determined by the corporation's
board of directors if the proposed transaction is authorized by
subsection (2) of this section.
(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 Except as authorized by ORS
65.554, a corporation shall not make any distributions. [1989 c.1010 §128] 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 corporation's 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) (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] (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] (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] (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] (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 corporation's board of directors or incorporators
revoked the dissolution, a statement to that effect;
(e) If the corporation's 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] (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 corporation's 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] (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] (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 corporation's 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 distributee's liability will not exceed the same pro rata share of
the claim; and
(B) The distributee's 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) 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 corporation's period of duration, if any, stated in its
articles of incorporation expires. [1989 c.1010 §138] (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] (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 corporation's 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] (1) If the Secretary of
State denies a corporation's 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) (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 creditor's 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 creditor's
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] (1) Venue for a
proceeding by the Attorney General to dissolve a corporation lies in
Marion County. Venue for a proceeding brought by any other party named in
ORS 65.661 lies in the county where a corporation's principal office is
located or, if the principal office is not in this state, where its
registered office is or was last located.
(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] (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 receiver's 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 receiver's 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 receiver's or custodian's
attorney from the assets of the corporation or proceeds from the sale of
the assets. [1989 c.1010 §144] (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 corporation's 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) 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 Oregon and shall
become part of the Common School Fund of the state. The owner, heirs or
personal representatives of the owner, may reclaim any funds so deposited
in the manner provided for estates which have escheated to the state.
[1989 c.1010 §146]FOREIGN CORPORATIONS(Authority to Transact Business) (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 corporation's 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] (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] (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] (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] (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] (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]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](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
agent's 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] (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
corporation's mailing address or the foreign corporation's 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] 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) (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) 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] (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
corporation's 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 State's revocation of a foreign corporation's
authority to transact business in this state appoints the Secretary of
State the foreign corporation's 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 corporation's 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] In addition to any
other legal remedy which may be available, a foreign corporation shall
have the right to appeal the Secretary of State's 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] (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 corporation's 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) (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 creditor's 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 creditor's
claim is due and owing and the corporation is insolvent.
(2) Prior to revoking a corporation's 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] (1) Venue
for a proceeding by the Attorney General to revoke a foreign
corporation's authority lies in Marion County. Venue for a proceeding
brought by any other person named in ORS 65.751 lies in the county where
a corporation's principal Oregon office is located or where its
registered office is or was last located.
(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 corporation's
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 corporation's 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] (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
corporation's authority to transact business in Oregon and specifying the
effective date of the revocation. The clerk of the court shall deliver a
certified copy of the judgment to the Office of the Secretary of State
for filing.
(2) The authority of a foreign corporation to transact business in
Oregon ceases as of the date of the judgment of revocation.
(3) The judgment of revocation of a foreign corporation's authority
to transact business in this state appoints the Secretary of State the
foreign corporation's 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 corporation's 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) (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 accountant's 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] (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 member's 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 member's
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 member's 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 member's 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] (1) A member's 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 member's 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 member's demand. [1989 c.1010 §166] (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 corporation's
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 corporation's 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 corporation's 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 member's
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] 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 member's
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) 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] (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;
(j) The federal employer identification number of the corporation;
and
(k) 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]TRANSFER OF ASSETS OF HOSPITAL 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](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] (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] (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](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 General's 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 General's 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 General's findings of fact
and conclusions of law. [1997 c.291 §6] 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] (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 General's sole discretion, contract with,
consult with or receive advice from consultants to assist in the Attorney
General's 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 General's 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] 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 CREMATORIESA 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] (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 (3) 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] 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]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] (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 This chapter shall be known and may be cited as
the Oregon Nonprofit Corporation Act. [1989 c.1010 §1; 1999 c.59 §16] 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
(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]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 corporation's 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] 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] (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 corporation's
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
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
PENALTY
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