Chapter 60 — Private
Corporations
2007 EDITION
PRIVATE CORPORATIONS
CORPORATIONS AND PARTNERSHIPS
GENERAL PROVISIONS
(Definitions)
60.001 Definitions
(Filing Documents)
60.004 Filing
requirements
60.007 Filing,
service, copying and certification fees
60.011 Effective
time and date of document
60.014 Correcting
filed document
60.016 Forms;
rules
60.017 Filing
duty of Secretary of State
60.021 Appeal
from Secretary of State’s refusal to file document
60.024 Evidentiary
effect of copy of filed document
60.027 Certificate
of existence or authorization
(Secretary of State)
60.031 Powers
(Notice)
60.034 Notice
INCORPORATION
60.044 Incorporators
60.047 Articles
of incorporation
60.051 Incorporation
60.054 Liability
for preincorporation transactions
60.057 Organization
of corporation
60.061 Bylaws
60.064 Emergency
bylaws
PURPOSES AND POWERS
60.074 Purposes
60.077 General
powers
60.081 Emergency
powers
60.084 Validity
of corporate acts
NAME
60.094 Corporate
name
60.097 Reserved
name
60.101 Registered
name
OFFICE AND AGENT
60.111 Registered
office and registered agent
60.114 Change
of registered office or registered agent
60.117 Resignation
of registered agent
60.121 Service
on corporation
SHARES AND DISTRIBUTIONS
(Shares)
60.131 Authorized
shares
60.134 Terms
of class or series determined by board of directors
60.137 Issued
and outstanding shares
60.141 Fractional
shares
(Issuance of Shares)
60.144 Subscription
for shares before incorporation
60.147 Issuance
of shares
60.151 Liability
of shareholders
60.154 Share
dividends
60.157 Share
rights, options and warrants
60.161 Form
and content of certificates
60.164 Shares
without certificates
60.167 Restriction
on transfer of shares and other securities
60.171 Expense
of issue
(Subsequent Acquisition of Shares by
Shareholders and Corporation)
60.174 Preemptive
rights of shareholders
60.177 Corporation’s
acquisition of its own shares
(Distributions)
60.181 Distributions
to shareholders
SHAREHOLDERS
(Meetings)
60.201 Annual
meeting
60.204 Special
meeting
60.207 Court-ordered
meeting
60.209 Meeting
chairperson; closing of polls
60.211 Action
without meeting
60.214 Notice
of meeting
60.217 Waiver
of notice
60.219 Adjournment
of meeting
60.221 Record
date
60.222 Participation
at meeting
60.223 Meeting
inspectors; duties
(Voting)
60.224 Shareholders’
list for meeting
60.227 Voting
entitlement of shares
60.231 Proxies
60.234 Shares
held by nominees
60.237 Corporations’
acceptance of votes
60.241 Quorum
and voting requirements for voting groups
60.244 Action
by single and multiple voting groups
60.247 Modification
of quorum or voting requirements
60.251 Voting
for directors
(Voting Trusts and Agreements)
60.254 Voting
trusts
60.257 Voting
agreements
(Derivative Proceedings)
60.261 Derivative
proceedings
(Shareholder Agreements)
60.265 Validity
of shareholder agreements inconsistent with chapter; purposes; notice of
agreement; effect on liability
DIRECTORS AND OFFICERS
(Board of Directors)
60.301 Requirement
for and duties of board of directors
60.304 Qualifications
of directors
60.307 Number
and election of directors
60.311 Election
of directors by certain classes of shareholders
60.314 Terms
of directors generally
60.317 Staggered
terms for directors
60.321 Resignation
of directors
60.324 Removal
of directors by shareholders
60.327 Removal
of directors by judicial proceeding
60.331 Vacancy
on board
60.334 Compensation
of directors
(Meetings and Action of Board)
60.337 Meetings
60.341 Action
without meeting
60.344 Notice
of meeting
60.347 Waiver
of notice
60.351 Quorum
and voting
60.354 Committees;
powers; limitations
(Standards of Conduct)
60.357 General
standards for directors
60.361 Conflict
of interest
60.364 Loans
to directors
60.367 Liability
for unlawful distributions
(Officers)
60.371 Required
officers
60.374 Duties
of officers
60.377 Standard
of conduct for officers
60.381 Resignation
and removal of officers
60.384 Contract
right of officers
(Indemnification)
60.387 Definitions
for ORS 60.387 to 60.414
60.391 Authority
to indemnify directors
60.394 Mandatory
indemnification
60.397 Advance
for expenses
60.401 Court-ordered
indemnification
60.404 Determination
and authorization of indemnification
60.407 Indemnification
of officers, employees and agents
60.411 Insurance
60.414 Application
of ORS 60.387 to 60.411
AMENDMENT OF ARTICLES OF INCORPORATION AND
BYLAWS
(Amendment of Articles of Incorporation)
60.431 Authority
60.434 Amendment
by board of directors
60.437 Amendment
by board of directors and shareholders
60.441 Voting
on amendments by voting groups
60.444 Amendment
before issuance of shares
60.447 Articles
of amendment
60.451 Restated
articles of incorporation
60.454 Amendment
pursuant to reorganization
60.457 Effect
of amendment
(Amendment of Bylaws)
60.461 Amendment
or repeal by board of directors or shareholders
60.464 Bylaw
increasing quorum or voting requirement for shareholders
60.467 Bylaw
increasing quorum or voting requirement for directors
CONVERSION, MERGER AND SHARE EXCHANGE
60.470 Definitions
for ORS 60.470 to 60.501
60.472 Conversion
60.474 Action
on plan of conversion
60.476 Articles
of conversion
60.478 Effect
of conversion; assumed business name
60.481 Merger
60.484 Share
exchange
60.487 Action
on plan of merger or share exchange
60.491 Merger
with subsidiary
60.494 Articles
of merger or share exchange
60.497 Effect
of merger or share exchange
60.501 Merger
or share exchange with foreign corporation
SALE OF ASSETS
60.531 Sale of assets in regular
course of business; mortgage of assets
60.534 Sale of assets other than
in regular course of business
DISSENTERS’ RIGHTS
(Right to Dissent and Obtain Payment for
Shares)
60.551 Definitions
for ORS 60.551 to 60.594
60.554 Right
to dissent
60.557 Dissent
by nominees and beneficial owners
(Procedure for Exercise of Rights)
60.561 Notice
of dissenters’ rights
60.564 Notice
of intent to demand payment
60.567 Dissenters’
notice
60.571 Duty
to demand payment
60.574 Share
restrictions
60.577 Payment
60.581 Failure
to take action
60.584 After-acquired
shares
60.587 Procedure
if shareholder dissatisfied with payment or offer
(Judicial Appraisal of Shares)
60.591 Court
action
60.594 Court
costs and counsel fees
DISSOLUTION
(Voluntary Dissolution)
60.621 Dissolution
by incorporators or initial directors
60.624 Voluntary
dissolution by consent of shareholders
60.627 Dissolution
by board of directors and shareholders
60.631 Articles
of dissolution
60.634 Revocation
of dissolution
60.637 Effect
of dissolution
60.641 Known
claims against dissolved corporation
60.644 Unknown
claims against dissolved corporation
60.645 Enforcement
of claims against dissolved corporation
(Administrative Dissolution)
60.647 Grounds
for administrative dissolution
60.651 Procedure;
effect of administrative dissolution
60.654 Reinstatement
following administrative dissolution
60.657 Appeal
from denial of reinstatement
(Judicial Dissolution)
60.661 Grounds
for judicial dissolution
60.664 Procedure
for judicial dissolution
60.667 Receivership
or custodianship
60.671 Judgment
of dissolution
(Disposition of Assets)
60.674 Asset
distribution; deposit with Department of State Lands; claims
FOREIGN CORPORATIONS
(Authority to Transact Business)
60.701 Authority
to transact business required
60.704 Consequences
of transacting business without authority
60.707 Application
for authority to transact business
60.711 Amendment
to application for authority
60.714 Effect
of authority
60.717 Corporate
name of foreign corporation
60.721 Registered
office and registered agent of foreign corporation
60.724 Change
of registered office or registered agent of foreign corporation
60.727 Resignation
of registered agent of foreign corporation
60.731 Service
on foreign corporation
(Withdrawal)
60.734 Withdrawal
of foreign corporation
(Revocation of Authority)
60.737 Grounds
for revocation
60.741 Procedure
for and effect of revocation
60.744 Appeal
from revocation
60.747 Reinstatement
of authority
RECORDS AND REPORTS
(Records)
60.771 Corporate
records
60.774 Inspection
of records by shareholders
60.777 Scope
of inspection right
60.781 Court-ordered
inspection
(Reports)
60.784 Reports
to shareholders of indemnification
60.787 Annual
report
REGULATION OF CORPORATE ACQUISITIONS
60.801 Definitions
for ORS 60.801 to 60.816
60.804 Applicability
of ORS 60.801 to 60.816
60.807 Voting
rights of control shares
60.810 Acquiring
person statement; shareholder meeting
60.813 Dissenters’
rights
60.816 Short
title
BUSINESS COMBINATIONS WITH INTERESTED
SHAREHOLDERS
60.825 Definitions
for ORS 60.825 to 60.845
60.830 Ownership
of shares
60.835 Prohibited
business combinations
60.840 Exceptions
to ORS 60.835
60.845 Greater
vote of shareholders prohibited
MISCELLANEOUS
60.951 Short
title
60.952 Court
proceeding by shareholder in close corporation; conditions; court-ordered
remedies; share purchase; expenses
60.954 Reservation
of power to amend or repeal
60.957 Application
to existing domestic corporation
60.961 Application
to qualified foreign corporations
60.964 Saving
provisions
60.967 Corporations
incorporated under special acts
60.971 Severability
PENALTY
60.992 Penalty
for signing false document
GENERAL PROVISIONS
(Definitions)
60.001
Definitions. As used in this
chapter:
(1) “Anniversary” means that day each year
exactly one or more years after:
(a) The date of filing by the Secretary of
State of the articles of incorporation in the case of a domestic corporation.
(b) The date of filing by the Secretary of
State of an application for authority to transact business in the case of a
foreign corporation.
(2) “Articles of incorporation” include
amended and restated articles of incorporation, articles of conversion and
articles of merger.
(3) “Authorized shares” means the shares
of all classes a domestic or foreign corporation is authorized to issue.
(4) “Conspicuous” means so written that a
reasonable person against whom the writing is to operate should have noticed it.
For example, printing in italics, boldface or contrasting color, typing in
capitals or underlined is conspicuous.
(5) “Corporation” or “domestic corporation”
means a corporation for profit, which is not a foreign corporation,
incorporated under or subject to the provisions of this chapter.
(6) “Delivery” means any method of
delivery used in conventional commercial practice, including delivery by hand,
mail, commercial delivery and electronic transmission.
(7) “Distribution” means a direct or
indirect transfer of money or other property, except of a corporation’s own
shares, or incurrence of indebtedness by a corporation to or for the benefit of
its shareholders in respect of any of its shares. A distribution may be in the
form of a declaration or payment of a dividend, a purchase, redemption or other
acquisition of shares, a distribution of indebtedness, or otherwise.
(8) “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.
(9) “Domestic nonprofit corporation” means
a corporation not for profit incorporated under ORS chapter 65.
(10) “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.
(11) “Electronic signature” has the
meaning given that term in ORS 84.004.
(12) “Electronic transmission” means any
process of communication that does not directly involve the physical transfer
of paper and that is suitable for the retention, retrieval and reproduction of
information by the recipient.
(13) “Employee” includes an officer but
not a director. A director may accept duties that make the director also an
employee.
(14) “Entity” includes a corporation,
foreign corporation, nonprofit corporation, profit and nonprofit unincorporated
association, 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.
(15) “Foreign corporation” means a
corporation for profit incorporated under a law other than the law of this
state.
(16) “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.
(17) “Foreign nonprofit corporation” means
a corporation not for profit organized under the laws of a state other than
this state.
(18) “Foreign professional corporation”
means a professional corporation organized under the laws of a state other than
this state.
(19) “Governmental subdivision” includes
an authority, county, district and municipality.
(20) “Includes” denotes a partial
definition.
(21) “Individual” means a natural person. “Individual”
includes the estate of an incompetent individual or a deceased individual.
(22) “Means” denotes an exhaustive
definition.
(23) “Office,” when used to refer to the
administrative unit directed by the Secretary of State, means the office of the
Secretary of State.
(24) “Person” includes individual and
entity.
(25) “Principal office” means the office,
in or out of this state, where the principal executive offices of a domestic or
foreign corporation are located and designated in the annual report or
application for authority to transact business in this state.
(26) “Proceeding” includes civil,
criminal, administrative and investigatory action.
(27) “Record date” means the date
established under this chapter on which a corporation determines the identity
of its shareholders and their shareholdings for purposes of this chapter. The
determinations shall be made as of the close of business on the record date
unless another time for doing so is specified when the record date is fixed.
(28) “Shares” means the units into which
the proprietary interest in a corporation are divided.
(29) “Shareholder” means the person in
whose name shares are registered in the records of a corporation or the
beneficial owner of shares to the extent of the rights granted by a nominee
certificate on file with a corporation.
(30) “Signature” includes any manual,
facsimile, conformed or electronic signature.
(31) “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.
(32) “Subscriber” means a person who
subscribes for shares in a corporation, whether before or after incorporation.
(33) “United
States” includes a district, authority, bureau,
commission, department and any other agency of the United States.
(34) “Voting group” means all shares of
one or more classes or series that under the articles of incorporation or this
chapter are entitled to vote and be counted together collectively on a matter
at a meeting of shareholders. All shares entitled by the articles of
incorporation or this chapter to vote generally on the matter are for that
purpose a single voting group. [1987 c.414 §64; 1989 c.1040 §2; 1999 c.362 §3;
1999 c.371 §2; 2001 c.104 §16; 2001 c.315 §32; 2003 c.80 §1; 2005 c.107 §1]
(Filing
Documents)
60.004
Filing requirements. (1) A
document must satisfy the requirements of this section except as any other
section modifies these requirements, to be entitled to filing by the Secretary
of State.
(2) This chapter must require or permit
filing the document with the office.
(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 in the English
language. 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 the chair of the board of directors
of a domestic or foreign corporation, its president or another of its officers;
(b) If directors have not been selected or
before the organizational meeting, by an incorporator; or
(c) If the corporation is in the hands of
a receiver, trustee or other court-appointed fiduciary, by that fiduciary,
receiver or trustee.
(7) The person executing 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 the document under ORS 60.016, the document
must be in or on the prescribed form.
(9) The document must be delivered to the
Office of the Secretary of State and must be accompanied by the required fees.
(10) Delivery of a document to the office
is accomplished only when the document is actually received by the office. [1987
c.52 §4; 1989 c.1040 §3; 1999 c.486 §5]
60.007
Filing, service, copying and certification fees. The Secretary of State shall collect the
fees described in ORS 56.140 for each document delivered for filing under this
chapter and for process served on the secretary under this chapter. The
secretary may collect the fees described in ORS 56.140 for copying any public
record under this chapter, certifying the copy or certifying to other facts of
record under this chapter. [1987
c.52 §6; 1989 c.383 §3; 1989 c.1040 §36; 1991 c.132 §3; 1999 c.362 §§4,4a]
60.010 [Repealed by 1953 c.549 §138]
60.011
Effective time and date of document. (1) Except as provided in subsection (2) of this section and ORS
60.014 (3), a document accepted for filing is effective on the date it is filed
by the Secretary of State and 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. [1987
c.52 §7; 1989 c.1040 §4]
60.014
Correcting filed document.
(1) A domestic or foreign corporation may correct a document filed by the
Secretary of State, other than an annual report, if the document contains an
incorrect statement or was defectively executed, attested, sealed, verified or
acknowledged.
(2) A domestic or foreign corporation
shall correct a document by delivering articles of correction to the office.
The articles shall include the following:
(a) A description of the document,
including its filing date, or a copy of the document.
(b) 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.
(c) A correction of the incorrect
statement or defective execution, attestation, seal, verification or
acknowledgment.
(3) 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. [1987 c.52 §8]
60.016
Forms; rules. Upon request,
the Secretary of State may furnish forms for documents required or permitted to
be filed by this chapter. The Secretary of State may by rule require the use of
the forms. [1987 c.52 §5; 1995 c.215 §6]
60.017
Filing duty of Secretary of State. (1) If a document delivered to the Office of the Secretary of State
for filing satisfies the requirements of ORS 60.004, 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. After filing a document, except as provided in ORS
60.114, 60.117, 60.671, 60.674, 60.724, 60.727 and 60.787, 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 delivered together with a brief written explanation of the reason
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 for filing. 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 part; 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. [1987 c.52 §9; 1989
c.1040 §5; 1999 c.486 §6]
60.020 [Repealed by 1953 c.549 §138]
60.021
Appeal from Secretary of State’s refusal to file document. If the Secretary of State refuses to file a
document delivered to the office 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 order pursuant to the provisions of
ORS chapter 183. [1987 c.52 §10]
60.024
Evidentiary effect of copy of filed document. (1) A certificate attached to a copy of a document filed by the
Secretary of State, bearing the Secretary of State’s signature, which may be in
facsimile, is conclusive evidence that the original document or a facsimile
thereof, is on file with the office.
(2) The provisions of ORS 56.110 shall
apply to all documents filed pursuant to this chapter. [1987 c.52 §11]
60.027
Certificate of existence or authorization. (1) Anyone may apply to 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 registered 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 required by ORS
60.787 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. [1987 c.52 §12]
60.030 [Repealed by 1953 c.549 §138]
(Secretary of
State)
60.031
Powers. The Secretary of
State has the power reasonably necessary to perform the duties required of the
Secretary of State by this chapter. [1987 c.52 §13]
(Notice)
60.034
Notice. (1) Except as
provided in subsection (3) of this section, notice under this chapter shall be
in writing unless oral notice is specifically permitted under the circumstances
by the articles of incorporation or bylaws. Notice by electronic transmission,
other than voice mail, is written notice.
(2)(a) Notice may be communicated in
person, by mail or other method of delivery, by telephone or by voice mail or
other electronic transmission.
(b) If a form of notice described in
paragraph (a) of this subsection is impracticable, notice may be communicated
by a newspaper of general circulation in the area where published, or by radio,
television or other form of public broadcast communication.
(3) All notices required by this chapter
by a corporation to its shareholders shall be in writing. Written notice by a
domestic or foreign corporation to a shareholder or director, if in a
comprehensible form, is effective:
(a) Upon deposit in the United States mail
if it is mailed postpaid and is correctly addressed to the shareholder’s
address shown in the corporation’s current record of shareholders or the
director’s address shown in the corporation’s records;
(b) When electronically transmitted to the
shareholder in a manner authorized in writing by the shareholder; or
(c) When electronically transmitted to the
director in a manner authorized by the director.
(4) Written notice to a domestic or foreign
corporation authorized to transact business in this state may be addressed to
its registered agent at its registered office or to the domestic or foreign
corporation or its president or secretary at its principal office or mailing
address as shown in the records of the office.
(5) Except as provided in subsection (3)
of this section, or unless the articles of incorporation or bylaws provide
otherwise for notices to directors, written notice, if in a comprehensible
form, is effective at the earliest of the following:
(a) When received;
(b) Five days after its deposit in the
United States mail, as evidenced by the postmark, if mailed postpaid and
correctly addressed; or
(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.
(6) Oral notice is effective when
communicated if communicated in a comprehensible manner.
(7) If this chapter prescribes notice
requirements for particular circumstances, those requirements govern. If
articles of incorporation or bylaws prescribe notice requirements, not
inconsistent with this section or other provisions of this chapter, those
requirements govern. [1987 c.52 §14; 1989 c.1040 §6; 2003 c.80 §2]
60.040 [Repealed by 1953 c.549 §138]
INCORPORATION
60.044
Incorporators. One or more
individuals 18 years of age or older, a domestic or foreign corporation, a
partnership or an association may act as incorporators of a corporation by
delivering articles of incorporation to the office for filing. [1987 c.52 §15]
60.047
Articles of incorporation.
(1) The articles of incorporation shall set forth:
(a) A corporate name for the corporation
that satisfies the requirements of ORS 60.094;
(b) The number of shares the corporation
is authorized to issue;
(c) The address, including street and
number, and mailing address, if different, of the corporation’s initial
registered office and the name of its initial registered agent at that office;
(d) The name and address of each
incorporator; and
(e) A mailing address to which notices, as
required by this chapter, may be mailed until an address has been designated by
the corporation in its annual report.
(2) The articles of incorporation may set
forth:
(a) The names of the initial directors;
(b) The addresses of the initial
directors;
(c) Provisions regarding:
(A) The purpose or purposes for which the
corporation is organized;
(B) Managing the business and regulating
the affairs of the corporation;
(C) Defining, limiting and regulating the
powers of the corporation, its board of directors and shareholders; and
(D) A par value for authorized shares or
classes of shares;
(d) A provision eliminating or limiting
the personal liability of a director to the corporation or its shareholders for
monetary damages for conduct as a director, provided that no such provision
shall eliminate or limit the liability of a director 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 for:
(A) Any breach of the director’s duty of
loyalty to the corporation or its shareholders;
(B) Acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law;
(C) Any unlawful distribution under ORS
60.367; or
(D) Any transaction from which the
director derived an improper personal benefit;
(e) A provision authorizing or directing
the corporation to conduct the business of the corporation in a manner that is
environmentally and socially responsible; and
(f) Any provision that under this chapter
is required or permitted to be set forth in the bylaws.
(3) The articles of incorporation need not
set forth any of the corporate powers enumerated in this chapter. [1987 c.52 §16;
1989 c.1040 §7; 1991 c.883 §1; 2007 c.254 §1]
60.050 [Repealed by 1953 c.549 §138]
60.051
Incorporation. (1) Unless a
delayed effective date is specified, the corporate existence begins when the
articles of incorporation are 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 except in a proceeding by the state
to cancel or revoke the incorporation or involuntarily dissolve the
corporation. [1987 c.52 §17]
60.054
Liability for preincorporation transactions. All persons purporting to act as or on behalf of a corporation,
knowing there was no incorporation, are jointly and severally liable for all
liabilities created while so acting. [1987 c.52 §18]
60.057
Organization of corporation.
(1) After incorporation, 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 to complete the organization of the
corporation by appointing officers, adopting bylaws and carrying on any other
business brought before the meeting.
(2) After incorporation, 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 to elect directors and complete the organization of the
corporation or to elect a board of directors who shall complete the
organization of the corporation.
(3) Action required or permitted by this
chapter to be taken by incorporators 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.
(4) An organizational meeting may be held
in or out of this state. [1987 c.52 §19]
60.060 [Repealed by 1953 c.549 §138]
60.061
Bylaws. (1) The
incorporators or board of directors of a corporation shall adopt initial bylaws
for the corporation.
(2) The bylaws of a corporation may
contain any provision for managing the business and regulating the affairs of
the corporation that is not inconsistent with law or the articles of
incorporation. [1987 c.52 §20]
60.064
Emergency bylaws. (1) Unless
the articles of incorporation provide otherwise, the board of directors of a
corporation may adopt bylaws to be effective only in an emergency defined in
subsection (4) of this section. The emergency bylaws, which are subject to
amendment or repeal by the shareholders, may contain all provisions 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 and may not be
used to impose liability on a corporate director, officer, employee or agent.
(4) An emergency exists for purposes of
this section if a quorum of the corporation’s directors cannot readily be
assembled because of some catastrophic event. [1987 c.52 §21]
60.070 [Repealed by 1953 c.549 §138]
PURPOSES AND
POWERS
60.074
Purposes. (1) Every
corporation incorporated under this chapter has the purpose of engaging in any
lawful business unless a more limited purpose is set forth in the articles of
incorporation.
(2) A business that is subject to
regulation under another statute of this state may not be incorporated under
this chapter if such business is required to be organized under such other
statute. [1987 c.52 §22; 1989 c.1040 §8]
60.077
General powers. (1) Unless
its articles of incorporation provide otherwise, every corporation has
perpetual duration and succession in its corporate name.
(2) Unless its articles of incorporation
provide otherwise, every corporation has the same powers as an individual to do
all things necessary or convenient to carry out its business and affairs,
including without limitation, power to:
(a) Sue and be sued and complain and
defend in its corporate name;
(b) Have a corporate seal, which may be
altered at will, and use it or a facsimile thereof, by impressing, affixing or
reproducing it in any other manner;
(c) Make and amend bylaws, not
inconsistent with its articles of incorporation or with the laws of this state
for managing the business and regulating the affairs of the corporation;
(d) Purchase, 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;
(e) Sell, convey, mortgage, pledge, lease,
exchange and otherwise dispose of all or any part of its property;
(f) Purchase, receive, subscribe for,
acquire, own, hold, vote, use, sell, mortgage, lend, pledge or otherwise
dispose of and deal in and with shares or other interests in, or obligations
of, any other entity;
(g) Make contracts and guarantees, incur
liabilities, borrow money, issue its notes, bonds and other obligations that
may be convertible into other securities of the corporation or include the
option to purchase other securities of the corporation and secure any of its
obligations by mortgage or pledge of any of its property, franchises or income;
(h) Lend money, invest and reinvest
corporate funds and receive and hold real and personal property as security for
repayment;
(i) Be a promoter, partner, member,
associate or manager of any partnership, joint venture, trust or other entity;
(j) Conduct its business, locate offices
and exercise the powers granted by this chapter within or without this state;
(k) Elect directors and appoint officers,
employees and agents of the corporation;
(L) Define directors’, officers’,
employees’ and agents’ duties, fix their compensation and lend them money and
credit;
(m) Pay pensions and establish pension
plans, share option plans and benefit or incentive plans for any or all of its
current or former directors, officers, employees and agents;
(n) Make donations for the public welfare
or for charitable, scientific or educational purposes;
(o) Transact any lawful business that will
aid governmental policy; and
(p) Make payment or donations or do any
other act, not inconsistent with law, that furthers the business and affairs of
the corporation. [1987 c.52 §23]
60.080 [Repealed by 1953 c.549 §138]
60.081
Emergency powers. (1) In
anticipation of or during an emergency defined in subsection (4) of this
section, the board of directors of a corporation may:
(a) Modify lines of succession to
accommodate the incapacity of any director, officer, employee or agent; and
(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 and radio.
(b) One or more officers of the
corporation present at a meeting of the board of directors may be deemed to be
directors for 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
during an emergency under this section to further the ordinary business affairs
of the corporation:
(a) Binds the corporation; and
(b) May not be used to impose liability on
a corporate director, officer, employee or agent.
(4) An emergency exists for purposes of
this section if a quorum of the corporation’s directors cannot readily be
assembled because of some catastrophic event. [1987 c.52 §24]
60.084
Validity of corporate acts.
(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 shareholder
against the corporation to enjoin the act;
(b) In a proceeding by the corporation,
directly, derivatively, or through a receiver, trustee or other legal
representative against an incumbent or former director, officer, employee or
agent of the corporation; or
(c) In a proceeding by the Attorney
General under ORS 60.661.
(3) In a shareholder’s 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. [1987 c.52 §25]
60.090 [Repealed by 1953 c.549 §138]
NAME
60.094
Corporate name. (1) A
corporate name shall contain one or more of the words “corporation,” “incorporated,”
“company” or “limited” or an abbreviation of one or more of those words.
(2) A corporate name shall not contain the
word “cooperative.”
(3) A corporate name shall be written in the
alphabet used to write the English language and may include Arabic and Roman
numerals and incidental punctuation.
(4) A corporate name shall be
distinguishable upon the records of the office from any other corporate name,
professional corporate name, nonprofit 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.
(5) The corporate name need not satisfy
the requirement of subsection (4) of this section if the applicant delivers to
the office 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. [1987 c.52 §26]
60.097
Reserved name. (1) A person
may apply to the office 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 60.094, the Secretary of State
shall reserve the name for the applicant for a 120-day period.
(3) A person may transfer the reservation
of a corporate name to another person by delivering to the office a notice of
the transfer executed by the person for whom the name was reserved and
specifying the name and address of the transferee. [1987 c.52 §27]
60.100 [Amended by 1953 c.549 §138; renumbered
57.815]
60.101
Registered name. (1) A
foreign corporation may apply to the office 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
and a brief description of the nature of the business 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 60.094 the Secretary of State shall register the name
effective for one year. [1987 c.52 §28]
60.110 [Repealed by 1953 c.549 §138]
OFFICE AND
AGENT
60.111
Registered office and registered agent. (1) Each corporation shall continuously maintain in this state a
registered agent and registered office that may be, but need not be, the same
as any of its places of business.
(2) A registered agent shall be:
(a) An individual who resides in this
state and whose business office is identical to the registered office;
(b) A domestic corporation, domestic
limited liability company, domestic professional corporation or domestic
nonprofit corporation whose business office is identical to the registered
office; or
(c) A foreign corporation, foreign limited
liability company, foreign professional corporation or foreign nonprofit
corporation authorized to transact business in this state whose business office
is identical to the registered office. [1987 c.52 §29; 2001 c.315 §24]
60.114
Change of registered office or registered agent. (1) A corporation may change its registered
office or registered agent by delivering to the office of the Secretary of
State for filing a statement of change that sets forth:
(a) The name of the corporation;
(b) If the registered office is to be
changed, the address including street and number of the new registered office;
(c) If the registered agent is to be
changed, the name of the new registered agent and that the new agent has
consented to the appointment; and
(d) That after the change or changes are
made the street addresses of its registered office and the business office of
its registered agent will be identical.
(2) If a registered agent changes the
street address of the agent’s business office, the registered agent shall
change the street address of the registered office of the 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 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 of the statement by the
Secretary of State 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. [1987 c.52 §30]
60.117
Resignation of registered agent. (1) A registered agent may resign as agent upon delivering a signed
statement to the office and giving notice in the form of a copy of the
statement to the corporation. 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 the corporation’s mailing address or the
corporation’s principal office as shown by the records of the office of the
Secretary of State.
(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 60.114, thereby terminating the capacity of such agent. [1987 c.52 §31;
1993 c.190 §1]
60.120 [Repealed by 1953 c.549 §138]
60.121
Service on corporation. (1)
The registered agent appointed by a corporation shall be an agent of the
corporation upon whom any process, notice or demand required or permitted by
law to be served upon the corporation may be served.
(2) The Secretary of State shall be an
agent of a corporation including a dissolved corporation upon whom any such
process, notice or demand may be served whenever the corporation fails to
appoint or maintain a registered agent in this state or whenever the
corporation’s registered agent cannot with reasonable diligence be found at the
registered office.
(3) Service shall be made on the Secretary
of State by:
(a) Serving the Secretary of State or a
clerk on duty at the office a copy of the process, notice or demand, with any
papers required by law to be delivered in connection with the service, and the
required fee for each party being served or by mailing to the office a copy of
the process, notice or demand and the required fee for each party being served
by certified or registered mail;
(b) Transmittal by the person instituting
the proceedings of notice of the service on the Secretary of State and copy of
the process, notice or demand and accompanying papers to the corporation being
served by certified or registered mail:
(A) At the last registered office of the
corporation as shown by the records on file in the office of the Secretary of
State; and
(B) At such address the use of which the
person initiating the proceedings knows or, on the basis of reasonable inquiry,
has reason to believe is most likely to result in actual notice; and
(c) Filing with the appropriate court or
other body, as part of the return of service, the return receipt of mailing and
an affidavit of the person initiating the proceedings stating that this section
has been complied with.
(4) The Secretary of State shall keep a
record of all processes, notices and demands served upon the Secretary of State
under this section.
(5) After completion of initial service
upon the Secretary of State, no additional documents need be served upon the
Secretary of State to maintain jurisdiction in the same proceeding or to give
notice of any motion or provisional process.
(6) Nothing contained in this section
shall limit or affect the right to serve any process, notice or demand required
or permitted by law to be served upon a corporation in any other manner now or
hereafter permitted by law, or enlarge the purposes for which service on the
Secretary of State is permitted where such purposes are limited by other
provisions of law. [1987 c.52 §32; 2007 c.71 §16]
60.130 [Repealed by 1953 c.549 §138]
SHARES AND
DISTRIBUTIONS
(Shares)
60.131
Authorized shares. (1) The
articles of incorporation must prescribe the classes of shares and the number
of shares of each class that the corporation is authorized to issue. If more
than one class of shares is authorized, the articles of incorporation must
prescribe a distinguishing designation for each class, and prior to the issuance
of shares of a class, the preferences, limitations and relative rights of that
class must be described in the articles of incorporation. All shares of a class
must have preferences, limitations and relative rights identical to those of
other shares of the same class except to the extent otherwise permitted by ORS
60.134 and 60.157.
(2) If the articles of incorporation
authorize only one class of shares, that class has unlimited voting rights and
rights to receive the net assets of the corporation upon dissolution. If the
articles of incorporation authorize more than one class of shares, then one or
more classes of shares must together have unlimited voting rights, and one or
more classes of shares which may be the same class or classes as those with
voting rights, must together be entitled to receive the net assets of the
corporation upon dissolution.
(3) The articles of incorporation may
authorize one or more classes of shares that:
(a) Have special, conditional or limited
voting rights, or no voting rights, except to the extent prohibited by this
chapter;
(b) Are redeemable or convertible as
specified in the articles of incorporation:
(A) At the option of the corporation, the
shareholder or another person or upon the occurrence of a designated event;
(B) For cash, indebtedness, securities or
other property; or
(C) In a designated amount or in an amount
determined in accordance with a designated formula or by reference to extrinsic
data or events;
(c) Entitle the holders to distributions
calculated in any manner, including dividends that may be cumulative,
noncumulative or partially cumulative; or
(d) Have preference over any other class
of shares with respect to distributions, including dividends and distributions
upon the dissolution of the corporation.
(4) The description of the designations,
preferences, limitations and relative rights of share classes in subsection (3)
of this section is not exhaustive. [1987 c.52 §33; 1989 c.4 §9; 1989 c.1040 §9]
60.134
Terms of class or series determined by board of directors. (1) If the articles of incorporation so
provide, the board of directors may determine, in whole or part, the
preferences, limitations and relative rights, subject to the requirements of
ORS 60.131, of any class of shares before the issuance of any shares of that
class or one or more series within a class before the issuance of any shares of
that series.
(2) Each series of a class must be given a
distinguishing designation.
(3) All shares of a series must have
preferences, limitations and relative rights identical with those of other
shares of the same series and, except to the extent otherwise provided in the
description of the series, of those of other series of the same class.
(4) Before issuing any shares of a class
or series created under this section, the corporation must deliver to the
office for filing, articles of amendment which are effective without
shareholder action, that set forth:
(a) The name of the corporation;
(b) The text of the amendment determining
the terms of the class or series of shares;
(c) The date it was adopted; and
(d) A statement that the amendment was
duly adopted by the board of directors. [1987 c.52 §34; 1989 c.1040 §10]
60.137
Issued and outstanding shares.
(1) A corporation may issue the number of shares of each class or series
authorized by the articles of incorporation. Shares that are issued are
outstanding shares until they are reacquired, redeemed, converted or canceled.
(2) The reacquisition, redemption or
conversion of outstanding shares is subject to the limitations of subsection
(3) of this section and ORS 60.177 and 60.181.
(3) At all times that shares of the
corporation are outstanding, one or more shares that together have unlimited
voting rights and one or more shares that together are entitled to receive the
net assets of the corporation upon dissolution must be outstanding. [1987 c.52 §35]
60.140 [Repealed by 1953 c.549 §138]
60.141
Fractional shares. (1) A
corporation may:
(a) Issue fractions of a share or pay in
money the value of fractions of a share;
(b) Arrange for disposition of fractional
shares by the shareholders; and
(c) Issue scrip in registered or bearer
form entitling the holder to receive a full share upon surrendering enough
scrip to equal a full share.
(2) Each certificate representing scrip
must be conspicuously labeled “scrip” and must contain the information required
by ORS 60.161 (2).
(3) The holder of a fractional share is
entitled to exercise the rights of a shareholder, including the right to vote,
receive dividends and participate in the assets of the corporation upon
liquidation. The holder of scrip is not entitled to any of these rights unless
the scrip provides for them.
(4) The board of directors may authorize
the issuance of scrip subject to any condition considered desirable, including:
(a) That the scrip will become void if not
exchanged for full shares before a specified date; and
(b) That the shares for which the scrip is
exchangeable may be sold and the proceeds paid to the scripholders. [1987 c.52 §36]
(Issuance of
Shares)
60.144
Subscription for shares before incorporation. (1) A subscription for shares entered into before incorporation is
irrevocable for six months unless the subscription agreement provides a longer
or shorter period or all the subscribers agree to revocation.
(2) The board of directors may determine
the payment term of subscriptions for shares that were entered into before
incorporation unless the subscription agreement specifies them. A call for
payment by the board of directors must be uniform so far as practicable as to
all shares of the same class or series, unless the subscription agreement
specifies otherwise.
(3) Shares issued pursuant to
subscriptions entered into before incorporation are fully paid and nonassessable
when the corporation receives the consideration specified in the subscription
agreement.
(4) If a subscriber defaults in payment of
money or property under a subscription agreement entered into before
incorporation, the corporation may collect the amount owed as any other debt.
Alternatively, unless the subscription agreement provides otherwise, the
corporation may rescind the agreement if the debt remains unpaid more than 20
days after the corporation sends written demand for payment to the subscriber.
(5) A subscription agreement entered into
after incorporation is a contract between the subscriber and the corporation
subject to ORS 60.147. [1987 c.52 §37]
60.147
Issuance of shares. (1) The
powers granted in this section to the board of directors may be reserved to the
shareholders by the articles of incorporation.
(2) The board of directors may authorize
shares to be issued for consideration consisting of any tangible or intangible
property or benefit to the corporation, including cash, promissory notes,
services performed, contracts for services to be performed or other securities
of the corporation.
(3) Before the corporation issues shares,
the board of directors must determine that the consideration received or to be
received for shares to be issued is adequate. That determination by the board
of directors is conclusive insofar as the adequacy of consideration for the
issuance of shares relates to whether the shares are validly issued, fully paid
and nonassessable. A record of action by the board of directors authorizing the
issuance of shares for a specified consideration may be relied upon in
concluding that shares are validly issued, fully paid and nonassessable.
(4) When the corporation receives the
consideration for which the board of directors authorized the issuance of
shares, the shares issued therefor are fully paid and nonassessable.
(5) The corporation may place in escrow
shares issued for a contract for future services or benefits or a promissory
note or make other arrangements to restrict the transfer of shares, and may
credit distributions in respect of the shares against their purchase price,
until the services are performed, the note is paid or the benefits received. If
the services are not performed, the note is not paid or the benefits are not
received, the shares placed in escrow or restricted and the distributions
credited may be canceled in whole or in part. [1987 c.52 §38; 1989 c.1040 §11]
60.150 [Repealed by 1953 c.549 §138]
60.151
Liability of shareholders.
(1) A purchaser from a corporation of its own shares is not liable to the
corporation or its creditors with respect to the shares except to pay the
consideration for which the shares were authorized to be issued or specified in
the subscription agreement.
(2) A shareholder of a corporation is not
personally liable for the acts or debts of the corporation merely by reason of
being a shareholder. [1987 c.52 §39]
60.154
Share dividends. (1) Unless
the articles of incorporation provide otherwise, shares may be issued pro rata
and without consideration to the corporation’s shareholders or to the
shareholders of one or more classes or series. An issuance of shares under this
subsection is a share dividend.
(2) Shares of one class or series may not
be issued as a share dividend in respect to shares of another class or series
unless the articles of incorporation so authorize, a majority of the votes
entitled to be cast by the class or series to be issued approve the issue or
there are no outstanding shares of the class or series to be issued.
(3) If the board of directors does not fix
the record date for determining shareholders entitled to a share dividend, the
record date is the date the board of directors authorizes the share dividend.
(4) For purposes of this section, a share
dividend shall include a share split, other than a reverse share split. [1987
c.52 §40; 1989 c.1040 §12]
60.157
Share rights, options and warrants. (1) A corporation may issue rights, options or warrants for the
purchase of shares of the corporation. The board of directors shall determine
the terms upon which the rights, options or warrants are issued. The board
shall also determine their form and content and the consideration for which the
shares are to be issued.
(2) Rights, options or warrants issued to
the holders of all shares of any class shall not be considered to conflict with
the provisions of ORS 60.131 (1) if the terms and conditions of the rights,
options or warrants include restrictions or conditions that:
(a) Preclude or limit the exercise,
transfer or receipt of rights, options or warrants by any person owning or
offering to acquire a specified number or percentage of the outstanding stock
or other securities of the corporation or any transferee of any such person; or
(b) Invalidate or void the rights, options
or warrants held by any such person or any transferee. [1987 c.52 §41; 1989 c.4
§10]
60.160 [Repealed by 1953 c.549 §138]
60.161
Form and content of certificates. (1) Shares may be but are not required to be represented by
certificates. Unless this chapter or another statute expressly provides
otherwise, the rights and obligations of shareholders are identical whether or
not their shares are represented by certificates.
(2) At a minimum, each share certificate
shall state on its face:
(a) The name of the issuing corporation
and that it is organized under the law of this state;
(b) The name of the person to whom the
share is issued; and
(c) The number and class of shares and the
designation of the series, if any, the certificate represents.
(3) If the issuing corporation is
authorized to issue different classes of shares or different series within a
class, the designations, relative rights, preferences and limitations
applicable to each class, the variations in rights, preferences and limitations
determined for each series and the authority of the board of directors to
determine variations for future series shall be summarized on the front or back
of each certificate or, each certificate may state conspicuously on its front
or back that the corporation will furnish the shareholder with this information
on request in writing and without charge.
(4) Each share certificate must be signed,
either manually or in facsimile, by two officers designated in the bylaws or by
the board of directors. Each certificate may bear the corporate seal or its
facsimile.
(5) If the person who signed a share
certificate, either manually or in facsimile, no longer holds office when the
certificate is issued, the certificate is nevertheless valid. [1987 c.52 §42]
60.164
Shares without certificates.
(1) Unless the articles of incorporation or bylaws provide otherwise, the board
of directors of a corporation may authorize the issue of some or all of the
shares of any or all of its classes or series without certificates. The
authorization does not affect shares already represented by certificates until
they are surrendered to the corporation.
(2) Within a reasonable time after the
issue or transfer of shares without certificates, the corporation shall send
the shareholder a written statement of the information required on certificates
by ORS 60.161 (2) and (3), and if applicable, ORS 60.167. [1987 c.52 §43]
60.167
Restriction on transfer of shares and other securities. (1) The articles of incorporation, bylaws,
agreements among shareholders or agreements between shareholders and the
corporation may impose restrictions on the transfer or registration of transfer
of shares of the corporation. A restriction does not affect shares issued
before the restriction was adopted unless the holders of the shares are parties
to the restriction agreement or voted in favor of the restriction.
(2) A restriction on the transfer or
registration of transfer of shares is valid and enforceable against the holder or
a transferee of the holder if the restriction is authorized by this section and
its existence is noted conspicuously on the front or back of the certificate or
is contained in the information statement required by ORS 60.164 (2). Unless so
noted, a restriction is not enforceable against a person who has no knowledge
of the restriction.
(3) A restriction on the transfer or
registration of transfer of shares is authorized:
(a) To maintain the corporation’s status
when it is dependent on the number or identity of its shareholders;
(b) To preserve exemptions under federal
or state securities law; or
(c) For any other reasonable purpose.
(4) A restriction on the transfer or
registration of transfer of shares may:
(a) Obligate the shareholder first to offer
the corporation or other persons, separately, consecutively or simultaneously
an opportunity to acquire the restricted shares;
(b) Obligate the corporation or other
persons, separately, consecutively or simultaneously to acquire the restricted
shares;
(c) Require the corporation, the holders
of any class of its shares or another person to approve the transfer of the
restricted shares if the requirement is not manifestly unreasonable; or
(d) Prohibit the transfer of the
restricted shares to designated persons or classes of persons, if the
prohibition is not manifestly unreasonable.
(5) For purposes of this section, “shares”
includes a security convertible into or carrying a right to subscribe for or
acquire shares. [1987 c.52 §44]
60.170 [Repealed by 1953 c.549 §138]
60.171
Expense of issue. A
corporation may pay the expenses of selling or underwriting its shares and
organizing or reorganizing the corporation from the consideration received for
shares. [1987 c.52 §45]
(Subsequent
Acquisition of Shares by Shareholders and Corporation)
60.174
Preemptive rights of shareholders. (1) Except to the extent limited or denied by this section or by the
articles of incorporation, the shareholders of a corporation incorporated prior
to June 15, 1987, shall have preemptive rights as defined in this section. By
articles of amendment or restated articles filed after such date, a corporation
may eliminate preemptive rights under this subsection by including in the
articles of amendment or restated articles that “the corporation elects to
waive preemptive rights,” or words of similar import, in which event this
subsection shall no longer apply to the corporation.
(2) Except as provided in subsection (1)
of this section, the shareholders of a corporation do not have a preemptive
right to acquire the corporation’s unissued shares except to the extent the
articles of incorporation so provide.
(3) A statement included in the articles
of incorporation that “the corporation elects to have preemptive rights,” or
words of similar import, means that the following principles apply except to
the extent the articles of incorporation expressly provide otherwise:
(a) The shareholders of the corporation
have a preemptive right, granted on uniform terms and conditions prescribed by
the board of directors to provide a fair and reasonable opportunity to exercise
the right to acquire proportional amounts of the corporation’s unissued shares
upon the decision of the board of directors to issue them.
(b) A shareholder may waive the shareholder’s
preemptive right. A waiver evidenced by a writing is irrevocable even though it
is not supported by consideration.
(c) There is no preemptive right with
respect to:
(A) Shares issued as compensation to
directors, officers, agents or employees of the corporation, its subsidiaries
or affiliates;
(B) Shares issued to satisfy conversion or
option rights created to provide compensation to directors, officers, agents or
employees of the corporation, its subsidiaries or affiliates;
(C) Shares authorized in articles of
incorporation that are issued within six months from the effective date of
incorporation; or
(D) Shares sold other than for money.
(d) Holders of shares of any class without
general voting rights but with preferential rights to distributions or assets
have no preemptive rights with respect to shares of any class.
(e) Holders of shares of any class with
general voting rights but without preferential rights to distributions or
assets have no preemptive rights with respect to shares of any class with
preferential rights to distributions or assets unless the shares with
preferential rights are convertible into or carry a right to subscribe for or
acquire shares without preferential rights.
(f) Shares subject to preemptive rights
that are not acquired by shareholders may be issued to any person for a period
of one year after being offered to shareholders at a consideration set by the
board of directors that is not lower than the consideration set for the
exercise of preemptive rights. An offer at a lower consideration or after the
expiration of one year is subject to the shareholders’ preemptive rights.
(4) For purposes of this section, “shares”
includes a security convertible into or carrying a right to subscribe for or
acquire shares. [1987 c.52 §46; 1987 c.579 §3; 1991 c.883 §2]
60.177
Corporation’s acquisition of its own shares. (1) A corporation may acquire its own shares and shares so acquired
constitute authorized but unissued shares.
(2) If the articles of incorporation
prohibit the reissue of acquired shares, the number of authorized shares is
reduced by the number of shares acquired, effective upon amendment of the
articles of incorporation.
(3) If pursuant to this section, the
number of authorized shares is reduced, articles of amendment shall be adopted
by the board of directors which may be without shareholder action and shall be
delivered to the office for filing. The articles shall set forth:
(a) The name of the corporation;
(b) The reduction in the number of
authorized shares, itemized by class and series; and
(c) The total number of authorized shares,
itemized by class and series, remaining after reduction of the shares.
(4) For purposes of this section, if
shares of one class or series of a corporation are converted into shares of
another class or series of the corporation, the shares so converted shall be
considered to have been acquired by the corporation. [1987 c.52 §47; 1993 c.403
§1]
(Distributions)
60.181
Distributions to shareholders.
(1) A board of directors may authorize and the corporation may make
distributions to its shareholders subject to restriction by the articles of
incorporation and the limitation in subsection (3) of this section.
(2) If the board of directors does not fix
the record date for determining shareholders entitled to a distribution, other
than a date involving a purchase, redemption or other acquisition of the
corporation’s shares, it is the date the board of directors authorizes the
distribution.
(3) A distribution may be made only if,
after giving it effect, in the judgment of the board of directors:
(a) The corporation would be able to pay
its debts as they become due in the usual course of business; and
(b) The corporation’s total assets would
at least equal the sum of its total liabilities plus, unless the articles of
incorporation permit otherwise, the amount that would be needed if the
corporation were to be dissolved at the time of the distribution, to satisfy
the preferential rights upon dissolution of shareholders whose preferential
rights are superior to those receiving the distribution.
(4) The board of directors may base a
determination that a distribution is not prohibited under subsection (3) of
this section either on financial statements prepared on the basis of accounting
practices and principles that are reasonable in the circumstances or on a fair
valuation or other method that is reasonable in the circumstances.
(5) The effect of a distribution under
subsection (3) of this section is measured:
(a) In the case of distribution by
purchase, redemption or other acquisition of the corporation’s shares, as of
the earlier of the date the money or other property is transferred or debt
incurred by the corporation or the date the shareholder ceases to be a
shareholder with respect to the acquired shares;
(b) In the case of any other distribution
of indebtedness, as of the date the indebtedness is distributed; and
(c) In all other cases, as of the date a
distribution is authorized if the payment occurs within 120 days after the date
of authorization or the date the payment is made if it occurs more than 120
days after the date of authorization.
(6) A corporation’s indebtedness to a
shareholder incurred by reason of a distribution made in accordance with this
section is at parity with the corporation’s indebtedness to its general
unsecured creditors, unless the shareholder agrees to subordination or the
corporation grants the shareholder a security interest or other lien against
corporate assets to secure the indebtedness. [1987 c.52 §48; 1989 c.1040 §13]
SHAREHOLDERS
(Meetings)
60.201
Annual meeting. (1) Except
as provided in subsection (4) of this section, a corporation shall hold an
annual meeting of the shareholders at a time stated in or fixed in accordance
with the bylaws.
(2) Annual shareholders’ 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 meetings shall be held at the corporation’s principal office.
(3) The failure to hold an annual meeting
at the time stated in or fixed in accordance with a corporation’s bylaws does
not affect the validity of any corporate action.
(4) If the articles of incorporation or
bylaws of a corporation registered under the Investment Company Act of 1940, as
amended, so provide, the corporation shall not be required to hold an annual
meeting in any year in which an election of directors is not required under the
Investment Company Act of 1940, as amended. [1987 c.52 §49; 1991 c.883 §3; 1997
c.249 §24]
60.204
Special meeting. (1) A
corporation shall hold a special meeting of shareholders:
(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 this paragraph,
if the holders of at least 10 percent of all votes entitled to be cast on any
issue proposed to be considered at the proposed special meeting 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. The
articles of incorporation may fix a lower percentage or a higher percentage not
exceeding 25 percent of all the votes entitled to be cast on any issue proposed
to be considered. Unless otherwise provided in the articles of incorporation, a
written demand for a special meeting may be revoked by a writing to that effect
signed by a shareholder who signed the original demand, and received by the
corporation prior to the receipt by the corporation of a demand sufficient to
require the holding of a special meeting.
(2) If not otherwise fixed under ORS
60.207 or 60.221, the record date for determining shareholders entitled to
demand a special meeting is the date the first shareholder signs the demand.
(3) Special shareholders’ 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 or fixed in accordance with the bylaws,
special meetings shall be held at the corporation’s principal office.
(4) Only business within the purpose or
purposes described in the meeting notice required by ORS 60.214 (3) may be
conducted at a special shareholders’ meeting. [1987 c.52 §50; 2003 c.80 §3]
60.207
Court-ordered meeting. (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 shareholder of
the corporation entitled to participate in an annual meeting 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; or
(b) On application of a shareholder who
signed a demand for a special meeting valid under ORS 60.204 and 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 shares entitled to participate in the meeting,
specify a record date for determining shareholders 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) The shareholders’ 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. [1987 c.52 §51]
60.209
Meeting chairperson; closing of polls. (1) At each meeting of shareholders, a chairperson shall preside. The
chairperson shall be appointed as provided in the bylaws or, in the absence of
such provision, by the board.
(2) Unless the articles of incorporation
or bylaws provide otherwise, the chairperson shall determine the order of
business and shall have the authority to establish rules for the conduct of the
meeting.
(3) Any rules adopted for, and the conduct
of, the meeting shall be fair to shareholders.
(4) The chairperson of the meeting shall
announce at the meeting when the polls close for each matter voted upon. If no
announcement is made, the polls shall be considered to have closed upon the
final adjournment of the meeting. After the polls close, no ballots, proxies or
votes, or any revocations or changes thereto, may be accepted. [2003 c.80 §5]
60.210 [Repealed by 1953 c.549 §138]
60.211
Action without meeting.
(1)(a) Action required or permitted by this chapter to be taken at a
shareholders’ meeting may be taken without a meeting if the action is taken by
all the shareholders entitled to vote on the action.
(b) Notwithstanding paragraph (a) of this
subsection, the articles of incorporation may provide that action required or
permitted by this chapter to be taken at a shareholders’ meeting may be taken
without a meeting if the action is taken by shareholders having not less than
the minimum number of votes that would be necessary to take such action at a
meeting at which all shareholders entitled to vote on the action were present
and voted.
(c) The action taken under this subsection
must be evidenced by one or more written consents describing the action taken,
signed by all the shareholders entitled to vote on the action, or by those
shareholders taking action under paragraph (b) of this subsection, and
delivered to the corporation for inclusion in the minutes or filing with the
corporate records.
(d) Action taken under paragraph (a) of
this subsection is effective when the last shareholder signs the consent,
unless the consent specifies an earlier or later effective date.
(e) Action taken under paragraph (b) of
this subsection is effective when the consent or consents bearing sufficient
signatures are delivered to the corporation, unless the consent or consents
specify an earlier or later effective date. An effective date specified under
this paragraph may not be earlier than the effective date of the provision
permitting action under paragraph (b) of this subsection.
(2) If not otherwise determined under ORS
60.207 or 60.221, the record date for determining shareholders entitled to take
action without a meeting is the date the first shareholder signs a 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.
(4)(a) If this chapter requires that
notice of proposed action be given to nonvoting shareholders and the action is
to be taken by unanimous consent of the voting shareholders, the corporation
must give its nonvoting shareholders written notice of the proposed action at
least 10 days before the action is taken.
(b) If this chapter requires that notice
of proposed action be given to nonvoting shareholders and the action is taken
as provided in subsection (1)(b) of this section, the corporation must give its
nonvoting shareholders written notice of the action promptly after the action
is taken.
(c) The notice given under this subsection
must contain or be accompanied by the same material that, under this chapter,
would have been required to be sent to nonvoting shareholders in a notice of
meeting at which the proposed action would have been submitted to the
shareholders for action.
(5) If action is taken as provided in
subsection (1)(b) of this section, the corporation must give written notice of
the action promptly after the action is taken to shareholders who did not
consent in writing under subsection (1)(b) of this section. The notice given
under this subsection must contain or be accompanied by the same material that,
under this chapter, would have been required to be sent to those shareholders
in a notice of meeting at which the proposed action would have been submitted
to those shareholders for action.
(6) The fact that an action is taken by
written consent without a meeting does not impair any rights a shareholder who
does not consent to the action may have to dissent and obtain payment for the
shareholder’s shares under ORS 60.551 to 60.594. A shareholder who consents to
the action in writing is not entitled to receive payment for the shareholder’s
shares under ORS 60.551 to 60.594. [1987 c.52 §52; 2001 c.315 §22]
60.214
Notice of meeting. (1) A
corporation shall notify shareholders of the date, time and place of each
annual and special shareholders’ meeting not earlier than 60 days nor less than
10 days before the meeting date. Unless this chapter or the articles of
incorporation require otherwise, the corporation is required to give notice
only to shareholders entitled to vote at the meeting.
(2) Unless required by this chapter or the
articles of incorporation, notice of an annual meeting need not include a
description of the purpose or purposes for which the meeting is called.
(3) Notice of a special meeting must
include a description of the purpose or purposes for which the meeting is
called.
(4) If not otherwise fixed under ORS
60.207 or 60.221, the record date for determining shareholders entitled to
notice of and to vote at an annual or special shareholders’ meeting is the day
before the first notice is mailed or otherwise transmitted for delivery to
shareholders in accordance with ORS 60.034.
(5) Unless the bylaws require otherwise,
if an annual or special shareholders’ meeting is adjourned to a different date,
time or place, notice need not be given of the new date, time or place if the
new date, time or place is announced at the meeting before adjournment. If a
new record date for the adjourned meeting is or must be fixed under ORS 60.221,
however, notice of the adjourned meeting must be given under this section to
persons who are shareholders as of the new record date. [1987 c.52 §53; 1989
c.1040 §16; 1991 c.883 §4; 2003 c.80 §6]
60.217
Waiver of notice. (1) A shareholder
may at any time waive any notice required by this chapter, the articles of
incorporation or bylaws. The waiver must be in writing, be signed by the
shareholder entitled to the notice and be delivered to the corporation for
inclusion in the minutes for filing with the corporate records.
(2) A shareholder’s attendance at a
meeting waives objection to:
(a) Lack of notice or defective notice of
the meeting, unless the shareholder at the beginning of the meeting objects to
holding the meeting or transacting business at the meeting; 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 shareholder objects to considering the matter when
it is presented. [1987 c.52 §54]
60.219
Adjournment of meeting.
Unless otherwise provided in the articles of incorporation or bylaws, a
majority of votes represented at a meeting of shareholders, whether or not a
quorum, may adjourn the meeting from time to time to a different time and place
without further notice to any shareholder of any adjournment, except as such
notice may be required by ORS 60.214. 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.1040 §18]
60.220 [Repealed by 1953 c.549 §138]
60.221
Record date. (1) The bylaws
may fix or provide the manner of fixing the record date for one or more voting
groups in order to determine the shareholders entitled to notice of a
shareholders’ meeting, to demand a special meeting, to vote or to take any
other action. The record date shall be the same for all voting groups. If the
bylaws do not fix or provide for fixing a record date, the board of directors
of the corporation may fix a future date, or a later time on the date the board
of directors fixes the record date, as the record date.
(2) A record date fixed under this section
may not be more than 70 days before the meeting or action requiring a
determination of shareholders.
(3) A determination of shareholders
entitled to notice of or to vote at a shareholders’ meeting is effective for
any adjournment of the meeting unless the board of directors 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. [1987 c.52 §55; 1993 c.403 §2]
60.222
Participation at meeting.
(1) Unless the articles of incorporation or bylaws provide otherwise, the
bylaws or the board of directors, by resolution adopted in advance either
specifically with respect to a particular meeting or generally with respect to
future meetings, may permit any or all shareholders to participate in an annual
or special meeting by, or may permit the conduct of a meeting through, use of
any means of communication by which all shareholders participating may
simultaneously hear each other. A shareholder participating in a meeting by
this means is deemed to be present in person at the meeting.
(2) The notice of each annual or special
meeting of shareholders at which participation in the manner referred to in
subsection (1) of this section is permitted shall state that fact and shall
describe how any shareholder desiring to participate may notify the corporation
of the shareholder’s desire to be included in the meeting. [1989 c.1040 §15]
60.223
Meeting inspectors; duties.
(1) A corporation having any shares listed on a national securities exchange or
regularly traded in a market maintained by one or more members of a national or
affiliated securities association shall, and any other corporation may, appoint
one or more inspectors to act at a meeting of shareholders and make a written
report of the inspectors’ determinations. Each inspector shall take and sign an
oath to faithfully execute the duties of the inspector with strict impartiality
and according to the best of the inspector’s ability.
(2) The inspectors shall:
(a) Ascertain the number of shares
outstanding and the voting power of each share;
(b) Determine the shares represented at a
meeting;
(c) Determine the validity of proxies and
ballots;
(d) Count all votes; and
(e) Determine the result.
(3) An inspector may be an officer or
employee of the corporation. [2003 c.80 §9]
(Voting)
60.224
Shareholders’ list for meeting.
(1) After fixing a record date for a meeting, a corporation shall prepare an
alphabetical list of the names of all its shareholders who are entitled to
notice of a shareholders’ meeting. The list must be arranged by voting group,
and within each voting group by class or series of shares and show the address
of and number of shares held by each shareholder.
(2) The shareholders’ list must be
available for inspection by any shareholder, 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 place
identified in the meeting notice in the city where the meeting will be held. A
shareholder, the shareholder’s agent or attorney is entitled on written demand
to inspect and, subject to the requirements of ORS 60.774 (3), to copy the list
during regular business hours and at the shareholder’s expense during the
period it is available for inspection.
(3) The corporation shall make the
shareholders’ list available at the meeting, and any shareholder, the
shareholder’s agent or attorney is entitled to inspect the list at any time
during the meeting or any adjournment.
(4) If the corporation refuses to allow a
shareholder, the shareholder’s agent or attorney to inspect the shareholders’
list before or at the meeting or copy the list as permitted by subsection (2)
of this section, on application of the shareholder, 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 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 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 shareholder’s list does not affect the validity of action taken
at the meeting. [1987 c.52 §56]
60.227
Voting entitlement of shares.
(1) Except as provided in subsections (2) and (3) of this section and ORS
60.807, or unless the articles of incorporation provide otherwise, each outstanding
share, regardless of class, is entitled to one vote on each matter voted on at
a shareholders’ meeting. Only shares are entitled to vote.
(2) The shares of a corporation are not
entitled to vote if they are owned, directly or indirectly, by a second
domestic or foreign corporation, and the first corporation owns, directly or
indirectly, a majority of the shares entitled to vote for directors of the
second corporation.
(3) Subsection (2) of this section does
not limit the power of a corporation to vote any shares, including its own
shares, held by it in a fiduciary capacity.
(4) Redeemable shares are not entitled to
vote after notice of redemption is mailed to the holders and a sum sufficient
to redeem the shares has been deposited with a bank, trust company or other
financial institution under an irrevocable obligation to pay the holders the
redemption price on surrender of the shares. [1987 c.52 §57; 1989 c.4 §7]
60.230 [Repealed by 1953 c.549 §138]
60.231
Proxies. (1) A shareholder
may vote shares in person or by proxy.
(2) A shareholder may authorize a person
or persons to act for the shareholder as proxy in any one of the following
manners:
(a) A shareholder or the shareholder’s
designated officer, director, employee or agent may execute a writing by:
(A) Signing it; or
(B) Causing the shareholder’s signature or
the signature of the designated officer, director, employee or agent of the
shareholder to be affixed to the writing by any reasonable means, including
facsimile signature.
(b) A shareholder may authorize an
electronic transmission that:
(A) May be transmitted to:
(i) The person who will be the holder of
the proxy;
(ii) The proxy solicitation firm; or
(iii) A proxy support service organization
or similar agency authorized by the person who will be the holder of the proxy
to receive the electronic transmission; and
(B) Must contain or be accompanied by
information from which it can be determined that the shareholder or the
shareholder’s designated officer, director, employee or agent authorized the
transmission.
(c) Any other method allowed by law.
(3) A copy, facsimile telecommunication or
other reliable reproduction of the writing or electronic transmission created
under subsection (2)(a) or (b) of this section may be used instead of the
original writing or electronic transmission for all purposes for which the
original writing or electronic transmission may be used if the copy, facsimile
telecommunication or other reproduction is a complete copy of the entire
original writing or electronic transmission.
(4) An authorization of a proxy is
effective when received by the secretary or other officer or agent authorized
to tabulate votes. An authorization is valid for 11 months unless a longer
period is expressly provided in the authorization form.
(5) An authorization of a proxy is
revocable by the shareholder unless the authorization conspicuously states that
it is irrevocable and the authorization is coupled with an interest.
Authorizations coupled with an interest include the authorization of:
(a) A pledgee;
(b) A person who purchased or agreed to
purchase the shares;
(c) A creditor of the corporation who
extended it credit under terms requiring the authorization;
(d) An employee of the corporation whose
employment contract requires the authorization; or
(e) A party to a voting agreement created
under ORS 60.257.
(6) The death or incapacity of the
shareholder authorizing 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 the proxy’s authority under the authorization.
(7) An authorization made irrevocable
under subsection (5) of this section is revoked when the interest with which it
is coupled is extinguished.
(8) A transferee for value of shares
subject to an irrevocable authorization may revoke the authorization if the
transferee did not know of its existence when the transferee acquired the
shares and the existence of the irrevocable authorization was not noted
conspicuously on the certificate representing the shares or on the information
statement for shares without certificates.
(9) Subject to ORS 60.237 and to any
express limitation on the proxy’s authority appearing on the face of the
authorization form or electronic transmission, a corporation is entitled to
accept the proxy’s vote or other action as that of the shareholder making the
authorization. [1987 c.52 §58; 1999 c.371 §1; 2001 c.104 §17; 2003 c.80 §7]
60.234
Shares held by nominees. (1)
A corporation may establish a procedure by which the beneficial owner of shares
that are registered in the name of a nominee is recognized by the corporation
as the shareholder. The extent of this recognition may be determined in the
procedure.
(2) The procedure referred to in
subsection (1) of this section may set forth:
(a) The types of nominees to which it
applies;
(b) The rights or privileges that the
corporation recognizes in a beneficial owner;
(c) The manner in which the procedure is
selected by the nominee;
(d) The information that must be provided
when the procedure is selected;
(e) The period for which selection of the
procedure is effective; and
(f) Other aspects of the rights and duties
created. [1987 c.52 §59]
60.237
Corporations’ acceptance of votes. (1) If the name signed on a vote, consent, waiver or proxy
authorization corresponds to the name of a shareholder, the corporation, if
acting in good faith, is entitled to accept the vote, consent, waiver or proxy
authorization and give it effect as the act of the shareholder.
(2) If the name signed on a vote, consent,
waiver or proxy authorization does not correspond to the name of its
shareholder, the corporation, if acting in good faith, is nevertheless entitled
to accept the vote, consent, waiver or proxy authorization and give it effect
as the act of the shareholder if:
(a) The shareholder 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 administrator, executor, guardian or conservator representing the
shareholder 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 authorization;
(c) The name signed purports to be that of
a receiver or trustee in bankruptcy of the shareholder 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 authorization;
(d) The name signed purports to be that of
a pledgee, beneficial owner or attorney-in-fact of the shareholder and, if the
corporation requests, evidence acceptable to the corporation of the signatory’s
authority to sign for the shareholder has been presented with respect to the
vote, consent, waiver or proxy authorization; or
(e) Two or more persons are the
shareholder as cotenants or fiduciaries and the name signed purports to be the
name of at least one of the coowners and the person signing appears to be
acting on behalf of all coowners.
(3) The corporation is entitled to reject
a vote, consent, waiver or proxy authorization 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 shareholder.
(4) The corporation and its officer or
agent who accepts or rejects a vote, consent, waiver or proxy authorization in
good faith and in accordance with the standards of this section are not liable
in damages to the shareholder for the consequences of the acceptance or
rejection.
(5) Corporate action based on the
acceptance or rejection of a vote, consent, waiver or proxy authorization under
this section is valid unless a court of competent jurisdiction determines
otherwise. [1987 c.52 §60; 1999 c.371 §3]
60.241
Quorum and voting requirements for voting groups. (1) Shares entitled to vote as a separate
voting group may take action on a matter at a meeting only if a quorum of those
shares exists with respect to that matter. Unless the articles of incorporation
or this chapter provide for a lesser or greater number in accordance with ORS
60.247, a majority of the votes entitled to be cast on the matter by the voting
group constitutes a quorum of that voting group for action on that matter.
(2) Once a share is represented for any
purpose at a meeting, it is deemed present for quorum purposes for the
remainder of the meeting and for any adjournment of that meeting unless a new
record date is or must be set for that adjourned meeting.
(3) If a quorum exists, action on a
matter, other than the election of directors, by a voting group is approved if
the votes cast within the voting group favoring the action exceed the votes
cast opposing the action, unless the articles of incorporation or this chapter
require a greater number of affirmative votes.
(4) An amendment of articles of
incorporation adding, changing or deleting a quorum or voting requirement for a
voting group greater than specified in subsection (2) or (3) of this section is
governed by ORS 60.247.
(5) The election of directors is governed
by ORS 60.251. [1987 c.52 §61]
60.244
Action by single and multiple voting groups. (1) If the articles of incorporation or this chapter provide for
voting by a single group on a matter, action on that matter is taken when voted
upon by that voting group as provided in ORS 60.241.
(2) If the articles of incorporation or
this chapter provide for voting by two or more voting groups on a matter,
action on that matter is taken only when voted upon by each of those voting
groups counted separately as provided in ORS 60.241. Action may be taken by one
voting group on a matter even though no action is taken by another voting group
entitled to vote on the matter. [1987 c.52 §62; 1991 c.883 §5]
60.247
Modification of quorum or voting requirements. (1) The articles of incorporation may
provide for a lesser or greater quorum requirement for shareholders, or voting
groups of shareholders, than is provided for by this chapter, but in no event
shall a quorum for shareholders, or any voting group of shareholders, consist
of less than one-third of the votes entitled to be cast on any matter by the
shareholders, or voting group of shareholders. The articles of incorporation
may provide for a greater voting requirement for shareholders, or voting groups
of shareholders, than is provided for by this chapter.
(2) An amendment to the articles of
incorporation that adds a greater quorum or voting requirement must meet the
quorum requirement and be adopted by the vote and voting groups required to
take action under the quorum and voting requirements then in effect. An amendment
to the articles of incorporation that changes or deletes a greater quorum or
voting requirement must meet the quorum requirement and be adopted by the vote
and voting groups required to take action immediately prior to the change or
deletion. [1987 c.52 §63; 1989 c.1040 §19]
60.251
Voting for directors. (1)
Unless otherwise provided in the articles of incorporation, directors are
elected by a plurality of the votes cast by the shares entitled to vote in the
election at a meeting at which a quorum is present.
(2) Shareholders do not have a right to
cumulate their votes for directors unless the articles of incorporation so
provide.
(3) A statement included in the articles
of incorporation that “all shareholders are entitled to cumulate their votes
for directors,” “a designated voting group of shareholders are entitled to
cumulate their votes for director” or words of similar import means that the
shareholders designated are entitled to multiply the number of votes they 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. [1987 c.52 §64; 1993 c.403 §3]
(Voting
Trusts and Agreements)
60.254
Voting trusts. (1) One or
more shareholders may create a voting trust and conferring on a trustee the
right to vote or otherwise act for them by signing an agreement setting out the
provisions of the trust which may include anything consistent with its purpose
and transferring their shares to the trustee. When a voting trust agreement is
signed, the trustee shall prepare a list of the names and addresses of all
owners of beneficial interests in the trust, together with the number and class
of shares each transferred to the trust, and deliver copies of the list and
agreement to the corporation’s principal office.
(2) A voting trust becomes effective on
the date the first shares subject to the trust are registered in the trustee’s
name. A voting trust is valid for not more than 10 years after its effective
date unless extended under subsection (3) of this section.
(3) All or some of the parties to a voting
trust may extend it for additional terms of not more than 10 years each by
signing an extension agreement and obtaining the voting trustee’s written
consent to the extension. An extension is valid for 10 years from the date the
first shareholder signs the extension agreement. The voting trustee must
deliver copies of the extension agreement and list of beneficial owners to the
corporation’s principal office. An extension agreement binds only those parties
signing it. [1987 c.52 §65]
60.257
Voting agreements. (1) Two
or more persons may provide for the manner in which they will vote their shares
by signing an agreement for that purpose. A voting agreement created under this
section is not a voting trust subject to the provisions of ORS 60.254.
(2) A voting agreement created under this
section is specifically enforceable. [1987 c.52 §66]
(Derivative
Proceedings)
60.261
Derivative proceedings. (1)
A person may not commence a proceeding in the right of a domestic or foreign
corporation unless the person was a shareholder of the corporation when the
transaction complained of occurred or unless the person became a shareholder
through transfer by operation of law from one who was a shareholder at that
time.
(2) 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.
(3) 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 shareholders or a class
of shareholders, the court shall direct that notice be given the shareholders
affected.
(4) For purposes of this section, “shareholder”
includes a beneficial owner whose shares are held in a voting trust or held by
a nominee on behalf of the beneficial owner. [1987 c.52 §67]
(Shareholder
Agreements)
60.265
Validity of shareholder agreements inconsistent with chapter; purposes; notice
of agreement; effect on liability. (1) An agreement among the shareholders of a corporation entered into
after December 31, 1993, that is inconsistent with one or more other provisions
of this chapter is effective among the shareholders and the corporation, and
binding on the board of directors, if the agreement complies with this section
and it:
(a) Restricts the discretion or powers of
the board of directors;
(b) Establishes who shall be directors or
officers of the corporation or establishes their terms of office or manner of
selection or removal;
(c) Governs, in general or in regard to
specific matters, the exercise or division of voting power by or between the
shareholders and directors or by or among any of them, including use of
weighted voting rights or director proxies;
(d) Establishes the terms and conditions
of any agreement for the transfer or use of property or the provision of
services between the corporation and any shareholder, director, officer or
employee of the corporation or among any of them; or
(e) Requires dissolution of the
corporation at the request of one or more of the shareholders or upon the
occurrence of a specified event or contingency.
(2) An agreement authorized by this
section shall be:
(a) Set forth:
(A) In the articles of incorporation or
bylaws and approved by all persons who are shareholders at the time of the
agreement; or
(B) In a written agreement that is signed
by all persons who are shareholders at the time of the agreement and is made
known to the corporation;
(b) Subject to amendment only by all
persons who are shareholders at the time of the amendment, unless the agreement
provides otherwise; and
(c) Valid for 10 years, unless the
agreement provides otherwise.
(3) The existence of an agreement
authorized by this section shall be noted conspicuously on the front or back of
each certificate for outstanding shares or on the information statement
required by ORS 60.164 (2). If at the time of the agreement the corporation has
shares outstanding represented by certificates, the corporation shall recall
the outstanding certificates and issue substitute certificates that comply with
this subsection. The failure to note the existence of the agreement on the
certificate or information statement shall not affect the validity of the
agreement or any action taken pursuant to it. Any purchaser of shares who, at the
time of purchase, did not have knowledge of the existence of the agreement
shall be entitled to rescission of the purchase. A purchaser shall be deemed to
have knowledge of the existence of the agreement if its existence is noted on
the certificate or information statement for the shares in compliance with this
subsection and, if the shares are not represented by a certificate, the
information statement is delivered to the purchaser at or prior to the time of
purchase of the shares. An action to enforce the right of rescission authorized
by this subsection must be commenced within the earlier of:
(a) Ninety days after notice from the
corporation or the seller to the purchaser of the existence of the agreement
describing the rights of a purchaser without knowledge of the existence of the
agreement, and stating that failure to timely exercise rescission rights will
result in their termination;
(b) One year after discovery of the
existence of the agreement; or
(c) Three years after the time of purchase
of the shares.
(4) An agreement authorized by this
section shall cease to be effective when shares of the corporation are listed
on a national securities exchange or quoted on the National Association of
Securities Dealers, Inc. Automated Quotation System. If the agreement ceases to
be effective for any reason and is contained or referred to in the corporation’s
articles of incorporation or bylaws, the board of directors may adopt, without
shareholder action, an amendment to the articles of incorporation or bylaws to
delete the agreement and any references to it.
(5) An agreement authorized by this
section that limits the discretion or powers of the board of directors shall
relieve the directors of, and impose upon the person or persons in whom such
discretion or powers are vested, liability for acts or omissions imposed by law
on directors to the extent that the discretion or powers of the directors are
limited by the agreement.
(6) The existence or performance of an
agreement authorized by this section shall not be a ground for imposing
personal liability on any shareholder for the acts or debts of the corporation
even if the agreement or its performance treats the corporation as if it were a
partnership or results in failure to observe the corporate formalities
otherwise applicable to the matters governed by the agreement.
(7) Incorporators or subscribers for
shares may act as shareholders with respect to an agreement authorized by this
section if no shares have been issued when the agreement is made. [1993 c.403 §12]
DIRECTORS AND
OFFICERS
(Board of
Directors)
60.301
Requirement for and duties of 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 business and affairs of the
corporation managed under the direction of, the board of directors, subject to
any limitation set forth in the articles of incorporation or in an agreement
authorized by ORS 60.265. [1987 c.52 §68; 1993 c.403 §4]
60.304
Qualifications of directors.
The articles of incorporation or bylaws may prescribe qualifications for
directors. A director need not be a resident of this state or a shareholder of
the corporation unless required by the articles of incorporation or bylaws. [1987
c.52 §69]
60.307
Number and election of directors. (1) A board of directors must consist of one or more individuals, with
the number specified in or fixed in accordance with the articles of
incorporation or bylaws. Notwithstanding ORS 60.001 (21), the estate of an
incompetent individual or a deceased individual may not be a director.
(2) The number of directors may be
increased or decreased from time to time by amendment to, or in the manner
provided in, the articles of incorporation or the bylaws.
(3) Directors are elected at the first
annual shareholders’ meeting and at each annual meeting thereafter unless their
terms are staggered under ORS 60.317. [1987 c.52 §70; 2003 c.80 §10]
60.311
Election of directors by certain classes of shareholders. If the articles of incorporation authorize
dividing the shares into classes or series, the articles may also authorize the
election of all or a specified number of directors by the holders of one or
more authorized classes or series of shares. Each class or classes or series of
shares entitled to elect one or more directors is a separate voting group for
purposes of the election of directors. [1987 c.52 §71]
60.314
Terms of directors generally.
(1) The terms of the initial directors of a corporation expire at the first
shareholders’ meeting at which directors are elected.
(2) The terms of all other directors
expire at the next annual shareholders’ meeting following their election unless
their terms are staggered under ORS 60.317.
(3) A decrease in the number of directors
does not shorten an incumbent director’s term.
(4) The term of a director elected by the
board of directors to fill a vacancy expires at the next shareholders’ meeting
at which directors are elected.
(5) Despite the expiration of a director’s
term, the director continues to serve until the director’s successor is elected
and qualifies or until there is a decrease in the number of directors. [1987
c.52 §72; 1989 c.1040 §20]
60.317
Staggered terms for directors.
(1) The articles of incorporation or the bylaws may provide for staggering the
terms of directors by dividing the total number of directors into two or three
groups, with each group to be as nearly equal in number as possible.
(2) If the terms of the directors are
staggered, the terms of directors in the first group expire at the first annual
shareholders’ meeting after their election, the terms of the second group
expire at the second annual shareholders’ meeting after their election and the
terms of the third group, if any, expire at the third annual shareholders’
meeting after their election. At each annual shareholders’ meeting held
thereafter, directors shall be chosen for a term of two years or three years,
as the case may be, to succeed those whose terms expire.
(3) If the corporation has cumulative
voting, terms of directors may be staggered only if authorized by the articles
of incorporation and each group of directors contains at least three members. [1987
c.52 §73; 1989 c.1040 §21; 2003 c.80 §11; 2005 c.92 §1]
60.321
Resignation of directors.
(1) A director may resign at any time by delivering written notice to the board
of directors, its chairperson or the corporation.
(2) A resignation is effective when the
notice is effective under ORS 60.034 (5) 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. [1987 c.52 §74]
60.324
Removal of directors by shareholders. (1) The shareholders may remove one or more directors 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 voting
group of shareholders, only the shareholders of that voting group may
participate in the vote to remove the director.
(3) If cumulative voting is authorized, a
director may not be removed if the number of votes sufficient to elect the
director under cumulative voting is voted against the director’s removal. If
cumulative voting is not authorized, a director may be removed only if the
number of votes cast to remove the director exceed the number of votes cast not
to remove the director.
(4) A director may be removed by the
shareholders 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. [1987 c.52 §75]
60.327
Removal of directors by judicial proceeding. (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 is or was last located, may remove a director of the
corporation from office in a proceeding commenced either by the corporation or
by its shareholders holding at least 10 percent of the outstanding shares of
any class 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; and
(b) Removal is in the best interest of the
corporation.
(2) The court that removes a director may
bar the director from reelection for a period prescribed by the court.
(3) If shareholders commence a proceeding
under subsection (1) of this section, they shall make the corporation a party
defendant. [1987 c.52 §76]
60.331
Vacancy on board. (1) Unless
the articles of incorporation provide otherwise, if a vacancy occurs on a board
of directors, including a vacancy resulting from an increase in the number of
directors:
(a) The shareholders may fill the vacancy;
(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, they may fill the vacancy by the
affirmative vote of a majority of all the directors remaining in office.
(2) If the vacant office is filled by the
shareholders and was held by a director elected by a voting group of
shareholders, then only the holders of shares of that voting group are entitled
to vote to fill the vacancy.
(3) A vacancy that will occur at a
specific later date, by reason of a resignation effective at later date under
ORS 60.321 (2) or otherwise may be filled before the vacancy occurs but the new
director may not take office until the vacancy occurs. [1987 c.52 §77]
60.334
Compensation of directors.
Unless the articles of incorporation or bylaws provide otherwise, the board of
directors may fix the compensation of directors. [1987 c.52 §78]
(Meetings and
Action of Board)
60.337
Meetings. (1) The board of
directors may hold regular or special meetings in or out of this state.
(2) Unless the articles of incorporation
or bylaws provide otherwise, the board of directors may permit any or all
directors to participate in a regular or special meeting by, or conduct the
meeting through, use of any means of communication by which all directors
participating may simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present in person at
the meeting. [1987 c.52 §79]
60.341
Action without meeting. (1)
Unless the articles of incorporation or bylaws provide otherwise, action
required or permitted by this chapter to be taken at a board of directors’
meeting may be taken without a meeting if the action is taken by all members of
the board. The action must be evidenced by one or more written consents
describing the action taken, signed by each director, and included in the
minutes or filed with the corporate records reflecting the action taken.
(2) Action taken under this section is
effective when the last director signs the consent, unless the consent
specifies an earlier or later effective date.
(3) A consent signed under this section
has the effect of a meeting vote and may be described as such in any document. [1987
c.52 §80]
60.344
Notice of meeting. (1)
Unless the articles of incorporation or bylaws provide otherwise, regular
meetings of the board of directors may be held without notice of the date,
time, place or purpose of the meeting.
(2) Unless the articles of incorporation
or bylaws provide for a longer or shorter period, special meetings of the board
of directors must be preceded by at least two days’ notice of the date, time
and place of the meeting. The notice need not describe the purpose of the
special meeting unless required by the articles of incorporation or bylaws. [1987
c.52 §81]
60.347
Waiver of notice. (1) A
director may at any time waive any notice required by this chapter, the
articles of incorporation or bylaws. Except as provided by 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 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 action taken at the meeting. [1987
c.52 §82]
60.351
Quorum and voting. (1)
Unless the articles of incorporation or bylaws requires 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 is the act of
the board of directors unless the articles of incorporation or bylaws require
the vote of a greater number of directors.
(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 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. [1987 c.52 §83]
60.354
Committees; powers; limitations. (1) Unless this chapter, the articles of incorporation or the bylaws
provide otherwise, a board of directors may create one or more committees and
appoint one or more members of the board of directors to serve on each
committee.
(2) Unless this chapter provides
otherwise, the creation of a committee and appointment of members to it 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 of incorporation or bylaws to take action under ORS 60.351.
(3) ORS 60.337 to 60.351 apply both to
committees of the board and to members of the committees.
(4) Except as provided in subsection (5)
of this section, to the extent specified by the board of directors or in the
articles of incorporation or bylaws, each committee may exercise the powers of
the board of directors under ORS 60.301.
(5) A committee may not:
(a) Authorize or approve distributions,
except according to a formula or method, or within limits, prescribed by the
board of directors;
(b) Approve or propose to shareholders
action that this chapter requires be approved by shareholders;
(c) Fill vacancies on the board of
directors or, subject to subsection (7) of this section, on any of its
committees; or
(d) Adopt, amend or repeal 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 60.357.
(7) The board of directors may appoint one
or more directors as alternate members of any committee to replace any absent
or disqualified member during the member’s absence or disqualification. Unless
the articles of incorporation, the bylaws or the resolution creating the
committee provide otherwise, in the event of the absence or disqualification of
a member of a committee, the member or members present at any meeting and not disqualified
from voting, unanimously, may appoint a director to act in place of the absent
or disqualified member. [1987 c.52 §84; 1989 c.1040 §22; 1991 c.883 §6; 1993
c.403 §5; 2003 c.80 §12]
(Standards of
Conduct)
60.357
General standards for directors. (1) A director shall discharge the duties of a director, including the
duties as a member of a committee, in good faith, with the care an ordinarily
prudent person in a like position would exercise under similar circumstances
and 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; or
(c) A committee of the board of directors
of which the director is not a member if the director reasonably believes the
committee merits confidence.
(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 for any
action taken as a director, or any failure to take any action, if the director
performed the duties of the director’s office in compliance with this section.
(5) When evaluating any offer of another
party to make a tender or exchange offer for any equity security of the
corporation, or any proposal to merge or consolidate the corporation with
another corporation or to purchase or otherwise acquire all or substantially
all the properties and assets of the corporation, the directors of the
corporation may, in determining what they believe to be in the best interests
of the corporation, give due consideration to the social, legal and economic
effects on employees, customers and suppliers of the corporation and on the
communities and geographical areas in which the corporation and its
subsidiaries operate, the economy of the state and nation, the long-term as
well as short-term interests of the corporation and its shareholders, including
the possibility that these interests may be best served by the continued
independence of the corporation, and other relevant factors. [1987 c.52 §85;
1989 c.4 §8]
60.361
Conflict of interest. (1) A
conflict of interest transaction is a transaction with the corporation in which
a director of the corporation has a direct or indirect interest. A conflict of
interest transaction is not voidable by the corporation solely because of the
director’s interest in the transaction if any one of the following is true:
(a) The material facts of the transaction
and the director’s interest were disclosed or known to the board of directors
or a committee of the board of directors and the board of directors or
committee authorized, approved or ratified the transaction;
(b) The material facts of the transaction
and the director’s interest were disclosed or known to the shareholders entitled
to vote and they authorized, approved or ratified the transaction; or
(c) The transaction was fair to the
corporation.
(2) For purposes of this section, a
director of the corporation has an indirect interest in a transaction if:
(a) Another entity in which the director
has a material financial 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.
(3) For purposes of subsection (1)(a) 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 vote to
authorize, approve or ratify the transaction, a quorum is present for the
purpose of taking action under this section. The presence of, or a vote cast
by, a director with a direct or indirect interest in the transaction does not
affect the validity of any action taken under subsection (1)(a) of this section
if the transaction is otherwise authorized, approved or ratified as provided in
subsection (1) of this section.
(4) For purposes of subsection (1)(b) of
this section, a conflict of interest transaction is authorized, approved or
ratified if it receives the vote of a majority of the shares entitled to be
counted under this subsection, voting as a single voting group. Shares owned by
or voted under the control of a director who has a direct or indirect interest
in the transaction, and shares owned by or voted under the control of an entity
described in subsection (2)(a) of this section may be counted in a vote of
shareholders to determine whether to authorize, approve or ratify a conflict of
interest transaction under subsection (1)(b) of this section. A majority of the
shares, 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. [1987 c.52 §86]
60.364
Loans to directors. (1)
Except as provided by subsection (3) of this section, a 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 represented by the outstanding voting
shares of all classes, voting as a single voting group, excluding the votes of
shares owned by or voted 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.
(2) The fact that a loan or guarantee is
made in violation of this section does not affect the borrower’s liability on
the loan.
(3) This section does not apply to loans
and guarantees authorized by statute regulating any special class of
corporations. [1987 c.52 §87]
60.367
Liability for unlawful distributions. (1) Unless the director complies with the applicable standards of
conduct described in ORS 60.357, 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 or the
articles of incorporation.
(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 60.357; and
(b) From each shareholder for the amount
the shareholder accepted knowing the distribution was made in violation of this
chapter or the articles of incorporation. [1987 c.52 §88]
(Officers)
60.371
Required officers. (1) A
corporation has the officers described in its bylaws or appointed by the board
of directors in accordance with the bylaws which shall include a president and
a secretary.
(2) A duly appointed officer may appoint
one or more officers or assistant officers if such appointment is authorized by
the bylaws or the board of directors.
(3) The secretary shall have the
responsibility for preparing minutes of the directors’ and shareholders’
meetings and for authenticating records of the corporation.
(4) The same individual may simultaneously
hold more than one office in a corporation. [1987 c.52 §89]
60.374
Duties of officers. Each
officer has the authority and shall perform the duties set forth in the bylaws
or, to the extent consistent with the bylaws, the duties prescribed by the
board of directors or by direction of an officer authorized by the board of
directors to prescribe the duties of other officers. [1987 c.52 §90]
60.377
Standard of conduct for officers. (1) An officer with discretionary authority shall discharge the duties
of an officer under that authority:
(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; or
(b) Legal counsel, public accountants or
other persons as to matters the officer reasonably believes are within the
person’s professional or expert competence.
(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 for any
action taken as an officer, or any failure to take any action, if the officer
performed the duties of the office in compliance with this section. [1987 c.52 §91]
60.381
Resignation and removal of officers. (1) An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is effective under ORS
60.034 (5) unless the notice specifies a later effective time. If a resignation
is made effective at a later time and the corporation accepts the future
effective time, its board of directors or the appointing officer may fill the
pending vacancy before the effective time if the board of directors or the
appointing officer provides that the successor does not take office until the
effective time.
(2) An officer may be removed at any time
with or without cause by:
(a) The board of directors;
(b) The appointing officer, unless
otherwise provided by the bylaws or the board of directors; or
(c) Any other officer if authorized by the
bylaws or the board of directors.
(3) Once delivered, a notice of
resignation is irrevocable unless revocation is permitted by the board of
directors.
(4) As used in this section, “appointing
officer” means the officer or any successor to that officer who appointed the
officer resigning or being removed. [1987 c.52 §92; 1993 c.403 §6; 2003 c.80 §13]
60.384
Contract right of officers.
(1) The appointment of an officer does not itself create contract rights.
(2) Removal or resignation of an officer
does not affect the contract rights, if any, of the corporation or the officer.
[1987 c.52 §93]
(Indemnification)
60.387
Definitions for ORS 60.387 to 60.414. As used in ORS 60.387 to 60.414:
(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
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 counsel 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 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. [1987 c.52 §94]
60.391
Authority to indemnify directors. (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 individual’s
conduct 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 requirement 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. [1987
c.52 §95]
60.394
Mandatory indemnification.
Unless limited by its articles of incorporation, a corporation shall indemnify
a director who was wholly successful, on the merits or otherwise, in the
defense of any proceeding to which the director was a party because of being a
director of the corporation against reasonable expenses incurred by the
director in connection with the proceeding. [1987 c.52 §96]
60.397
Advance for expenses. (1) A
corporation may pay for or reimburse the reasonable expenses incurred by a
director who is a party to a proceeding in advance of final disposition of the
proceeding if:
(a) The director furnishes the corporation
a written affirmation of the director’s good faith belief that the director has
met the standard of conduct described in ORS 60.391; 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 shareholders or board of directors or by
contract. [1987 c.52 §97]
60.401
Court-ordered indemnification.
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 if it
determines:
(1) The director is entitled to mandatory
indemnification under ORS 60.394, 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 60.391 or was
adjudged liable as described in ORS 60.391 (4), whether the liability is based
on a judgment, settlement or proposed settlement or otherwise. [1987 c.52 §98]
60.404
Determination and authorization of indemnification. (1) A corporation may not indemnify a
director under ORS 60.391 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 60.391.
(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. However, directors who are parties
to the proceeding may participate in designation of the committee;
(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 of directors 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 shareholders.
(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. [1987
c.52 §99]
60.407
Indemnification of officers, employees and agents. Unless a corporation’s articles of
incorporation provide otherwise:
(1) An officer of the corporation is
entitled to mandatory indemnification under ORS 60.394, and is entitled to
apply for court-ordered indemnification under ORS 60.401, in each case to the
same extent as a director under ORS 60.394 and 60.401.
(2) The corporation may indemnify and
advance expenses under ORS 60.387 to 60.411 to an officer, employee or agent of
the corporation to the same extent as to a director. [1987 c.52 §100]
60.411
Insurance. A corporation may
purchase and maintain insurance on behalf of an individual against liability
asserted against or incurred by the individual who is or was a director,
officer, employee or agent of the corporation or who, while a director,
officer, employee or agent of the corporation, is or was serving at the request
of the corporation as a director, officer, partner, trustee, employee or agent
of another foreign or domestic 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 60.391 or 60.394. [1987 c.52 §101]
60.414
Application of ORS 60.387 to 60.411. (1) The indemnification and provisions for advancement of expenses
provided by ORS 60.387 to 60.411 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 shareholders 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
shareholders or any resolution or agreement approved, adopted or ratified,
before or after such indemnification or agreement is made, by the shareholders,
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 60.047 (2)(d); 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 60.404.
(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 60.387 to 60.411 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. [1987 c.52 §102; 1991 c.883 §7]
AMENDMENT OF
ARTICLES OF INCORPORATION AND BYLAWS
(Amendment of
Articles of Incorporation)
60.431
Authority. (1) A corporation
may amend its articles of incorporation at any time to add, change or delete
any provision if the articles of incorporation as amended would be permitted
under this chapter as of the effective date of the amendment.
(2) A shareholder of the corporation does
not have a vested property right resulting from any provision in the articles
of incorporation, including provisions relating to management, control, capital
structure, dividend entitlement, purpose or duration of the corporation. [1987
c.52 §103]
60.434
Amendment by board of directors. Unless the articles of incorporation provide otherwise, a corporation’s
board of directors may adopt one or more amendments to the corporation’s
articles of incorporation without shareholder action to:
(1) Extend the duration of the corporation
if it was incorporated at a time when limited duration was required by law;
(2) Delete the names and addresses of the
initial directors;
(3) 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;
(4) Delete the mailing address if an
annual report has been filed with the office of the Secretary of State;
(5) Change the corporate name by
substituting 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 for the name;
(6) In the case of a corporation
registered as an open-end investment company under the Investment Company Act
of 1940, as amended, increase or decrease the number of shares the corporation
is authorized to issue; or
(7) Make any other change expressly
permitted by this chapter to be made without shareholder action. [1987 c.52 §104;
1989 c.1040 §23; 1991 c.883 §8; 1997 c.249 §25]
60.437
Amendment by board of directors and shareholders. (1) A corporation’s board of directors may
propose one or more amendments to the articles of incorporation for submission
to the shareholders.
(2) For the amendment to be adopted, the
board of directors shall adopt a resolution setting forth the proposed
amendment and directing that it be submitted to a vote at a meeting of
shareholders, which may be either an annual or a special meeting, and the
shareholders entitled to vote on the amendment must approve the amendment as
provided in subsection (5) of this section.
(3) The board of directors may condition
its submission of the proposed amendment on any basis.
(4) The corporation shall notify each
shareholder, whether or not entitled to vote, of the proposed shareholders’
meeting in accordance with ORS 60.214. The notice of meeting must also state
that the purpose, or one of the purposes, of the meeting is to consider the
proposed amendment and contain or be accompanied by a copy or summary of the
amendment.
(5) Unless this chapter, the articles of
incorporation or the board of directors acting pursuant to subsection (3) of
this section require a greater vote or a vote by voting groups, the amendment
to be adopted must be approved by:
(a) A majority of the votes entitled to be
cast on the amendment by any voting group with which the amendment would create
dissenters’ rights; and
(b) The votes required by ORS 60.241 and
60.244 by every other voting group entitled to vote on the amendment. [1987
c.52 §105; 1989 c.1040 §24]
60.441
Voting on amendments by voting groups. (1) The holders of the outstanding shares of a class are entitled to
vote as a separate voting group if shareholder voting is otherwise required by
this chapter on a proposed amendment if the amendment would:
(a) Increase or decrease the aggregate
number of authorized shares of the class;
(b) Effect an exchange or reclassification
of all or part of the shares of the class into shares of another class;
(c) Effect an exchange or
reclassification, or create the right of exchange, of all or part of the shares
of another class into shares of the class;
(d) Change the designation, rights,
preferences or limitations of all or part of the shares of the class;
(e) Change the shares of all or part of
the class into a different number of shares of the same class;
(f) Create a new class of shares having
rights or preferences with respect to distributions or to dissolution that are
prior, superior or substantially equal to the shares of the class;
(g) Increase the rights, preferences or
number of authorized shares of any class that, after giving effect to the
amendment, have rights or preferences with respect to distributions or to
dissolution that are prior, superior, or substantially equal to the shares of
the class;
(h) Limit or deny an existing preemptive
right of all or part of the shares of the class; or
(i) Cancel or otherwise affect rights to
distributions or dividends that have accumulated but not yet been declared on
all or part of the shares of the class.
(2) If a proposed amendment would affect a
series of a class of shares in one or more of the ways described in subsection
(1) of this section, the shares of that series are entitled to vote as a
separate voting group on the proposed amendment.
(3) If a proposed amendment that entitles
two or more series of shares to vote as separate voting groups under this
section would affect those two or more series in the same or a substantially
similar way, the shares of all the series so affected must vote together as a
single voting group on the proposed amendment.
(4) A class or series is entitled to the
voting rights granted by this section although the articles of incorporation
provide that the shares are nonvoting shares. [1987 c.52 §106]
60.444
Amendment before issuance of shares. If a corporation has not yet issued shares, its incorporators or the
board of directors may adopt one or more amendments to the corporation’s
articles of incorporation. If any such amendment relates to the duration,
purposes, authorized capital, rights or preferences of shares or internal
affairs, the incorporators or board of directors shall immediately notify in
writing each person who is a party to any agreement for the subscription of
stock of the corporation. Such notice shall set forth the text of the amendment
and state that the subscriber may, within 30 days after delivery or mailing of
the notice of amendment, rescind the subscription by notice in writing
delivered or mailed to the incorporators or board of directors at an address
specified. If a notice of rescission is not delivered or mailed within 30 days,
the subscriber may not thereafter assert the fact of the amendment as the basis
for avoiding the subscription agreement or asserting any claim against any
person. [1987 c.52 §107]
60.447
Articles of amendment. (1) A
corporation amending its articles of incorporation shall deliver articles of
amendment to the office for filing.
(2) Articles of amendment shall contain:
(a) The name of the corporation;
(b) The text of each amendment adopted;
(c) If an amendment provides for an
exchange, reclassification or cancellation of issued shares, provisions for
implementing the amendment if not contained in the amendment itself;
(d) The date of each amendment’s adoption;
(e) If an amendment was adopted by the
incorporators or board of directors without shareholder action, a statement to
that effect and a statement that shareholder action was not required; and
(f) If an amendment was approved by the
shareholders:
(A) The designation, number of outstanding
shares, number of votes entitled to be cast by each voting group entitled to
vote separately on the amendment; and
(B) The total number of votes cast for and
against the amendment by each voting group entitled to vote separately on the
amendment. [1987 c.52 §108]
60.451
Restated articles of incorporation. (1) A corporation’s board of directors may restate its articles of
incorporation at any time with or without shareholder action. If a corporation
has not yet issued shares, its incorporators or the board of directors may
adopt restated articles of incorporation, subject to the requirements of ORS
60.444.
(2) The restatement may include one or
more amendments to the articles. If the restatement includes an amendment
requiring shareholder approval, it must be adopted as provided in ORS 60.437.
(3) If the board of directors submits a
restatement for shareholder action, the corporation shall notify each
shareholder, whether or not entitled to vote, of the proposed shareholders’
meeting in accordance with ORS 60.214. 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 of the restatement that
identifies any amendment or other change it would make in the articles.
(4) A corporation restating its articles
of incorporation shall deliver to the office 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 shareholder approval and, if it does not,
that the board of directors adopted the restatement; or
(b) If the restatement contains an
amendment to the articles requiring shareholder approval, the information
required by ORS 60.447.
(5) Restated articles of incorporation
shall contain 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.
(6) Duly adopted restated articles of
incorporation supersede the original articles of incorporation and all amendments
to them.
(7) 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
(4) of this section. [1987 c.52 §109; 1989 c.1040 §25]
60.454
Amendment pursuant to reorganization. (1) A corporation’s articles of incorporation may be amended without
action by the board of directors or shareholders to carry out a plan of
reorganization ordered or decreed by a court of competent jurisdiction under
federal statute if the articles of incorporation after amendment contain only
provisions required or permitted by ORS 60.047.
(2) The individual or individuals
designated by the court shall deliver to the office 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 reorganization
proceeding in which the order or decree was entered; and
(e) A statement that the court had
jurisdiction of the proceeding under federal statute.
(3) Shareholders of a corporation
undergoing reorganization do not have dissenters’ rights except as and to the
extent provided in the reorganization plan.
(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. [1987 c.52 §110]
60.457
Effect of amendment. An
amendment to articles of incorporation does not affect a cause of action
existing against or in favor of the corporation, a proceeding to which the
corporation is a party or the existing rights of persons other than
shareholders 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. [1987 c.52 §111]
(Amendment of
Bylaws)
60.461
Amendment or repeal by board of directors or shareholders. (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 shareholders in whole or in part;
or
(b) The shareholders 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 shareholders may amend
or repeal the corporation’s bylaws even though the bylaws may also be amended
or repealed by its board of directors. [1987 c.52 §112]
60.464
Bylaw increasing quorum or voting requirement for shareholders. (1) If expressly authorized by the articles
of incorporation, the shareholders may adopt or amend a bylaw that fixes a
greater quorum or voting requirement for shareholders, or voting groups of
shareholders, than is required by this chapter. The adoption or amendment of a
bylaw that adds, changes or deletes a greater quorum or voting requirement for
shareholders must meet the same quorum requirement and be adopted by the same
vote and voting groups required to take action under the quorum and voting
requirement then in effect or the quorum and voting requirement proposed to be
adopted, whichever is greater.
(2) A bylaw that fixes a greater quorum or
voting requirement for shareholders under subsection (1) of this section may
not be adopted, amended or repealed by the board of directors. [1987 c.52 §113]
60.467
Bylaw increasing quorum or voting requirement for directors. (1) A bylaw provision that fixes a greater
quorum or voting requirement for the board of directors may be amended or
repealed:
(a) If the provision was originally
adopted by the shareholders, only by the shareholders; or
(b) If the provision was originally adopted
by the board of directors, either by the shareholders or by the board of
directors.
(2) A bylaw provision adopted or amended
by the shareholders that fixes a greater quorum or voting requirement for the
board of directors may provide that it may be amended or repealed only by a
specified vote of either the shareholders or the board of directors. [1987 c.52
§114; 1989 c.1040 §26]
CONVERSION,
MERGER AND SHARE EXCHANGE
60.470
Definitions for ORS 60.470 to 60.501. As used in ORS 60.470 to 60.501:
(1) “Business entity” means:
(a) Any of the following for-profit
entities:
(A) A professional corporation organized
under ORS chapter 58, predecessor law or comparable law of another
jurisdiction;
(B) A corporation organized under this
chapter, predecessor law or comparable law of another jurisdiction;
(C) A limited liability company organized
under ORS chapter 63 or comparable law of another jurisdiction;
(D) A partnership organized in Oregon
after January 1, 1998, or that is registered as a limited liability
partnership, or that has elected to be governed by ORS chapter 67, and a
partnership governed by law of another jurisdiction that expressly provides for
conversions and mergers; and
(E) A limited partnership organized under
ORS chapter 70, predecessor law or comparable law of another jurisdiction; and
(b) A cooperative organized under ORS
chapter 62, predecessor law or comparable law of another jurisdiction.
(2) “Organizational document” means the
following for an Oregon
business entity or, for a foreign business entity, a document equivalent to the
following:
(a) In the case of a corporation,
professional corporation or cooperative, articles of incorporation;
(b) In the case of a limited liability
company, articles of organization;
(c) In the case of a partnership, a
partnership agreement and, for a limited liability partnership, its
registration; and
(d) In the case of a limited partnership,
a certificate of limited partnership.
(3) “Owner” means a:
(a) Shareholder of a corporation or of a
professional corporation;
(b) Member or shareholder of a
cooperative;
(c) Member of a limited liability company;
(d) Partner of a partnership; and
(e) General partner or limited partner of
a limited partnership. [1999 c.362 §6; 2003 c.80 §14]
60.472
Conversion. (1) A business
entity other than a corporation may be converted to a corporation organized
under this chapter, and a corporation organized under this chapter may be
converted to another business entity organized under the laws of this state, if
conversion is permitted by the statutes governing the other business entity, by
approving a plan of conversion and filing articles of conversion. A corporation
organized under this chapter may be converted to a business entity organized
under the laws of another jurisdiction if:
(a) The conversion is permitted by the
laws of that jurisdiction;
(b) A plan of conversion is approved by
the converting corporation;
(c) Articles of conversion are filed in
this state;
(d) The converted business entity submits
an application to transact business as a foreign business entity of that type
to the Secretary of State for filing and meets all other requirements
prescribed under the laws of this state for authorization to transact business
as a foreign business entity of that type; and
(e) The corporation complies with all
requirements imposed under the laws of the other jurisdiction with respect to
the conversion.
(2) The plan of conversion shall set
forth:
(a) The name and type of the business
entity prior to conversion;
(b) The name and type of the business
entity after conversion;
(c) A summary of the material terms and
conditions of the conversion;
(d) The manner and basis of converting the
ownership interests of each owner into ownership interests or obligations of
the converted business entity or any other business entity, or into cash or
other property in whole or in part; and