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SISSETON-WAHPETON SIOUX TRIBE
CHAPTER 9
NONPROFIT CORPORATION ORDINANCE
s.w.s.1. CClll!:.o I\.mendment
GO NeW AdoptIonJudicial APproved
Qa*-tiL- council Adopted~-O'-l-~~
09-01-01 SHORT TITLEThis Chapter shall be known and may be cited as the SissetonWahpeton sioux Nonprofit corporations Ordinance.
09-02-01 DEFINITIONSAs used in this Ordinance, the terms:
09-02-02 Corporation or Domestic Corporation - means a corporation notfor profit sUbject to the provisions of this Ordinance.
09-02-03 Not for Profit Corporation - means a corporation no part ofthe income of which is distributable to its members,directors, or officers; except nothing in this Chapter shallbe construed as prohibiting the payment of reasonablecompensation for services rendered and the making ofdistribution upon dissolution or final liquidation aspermitted in this Chapter.
09-02-04 Article of Incorporation - means the original articles ofincorporation and all amendments thereto, including articlesof merger of consolidation, and in the case of a corporationcreated by a special ordinance or resolutions of the Tribalcouncil, means such special ordinance or resolution and anyamendments thereto.
09-02-05 By-laws - means the Code of Codes of Rules adopted for theregulation or management of the affairs of a corporationirrespective of the names or names by which such rules aredesignated.
09-02-06 Member - means one havingin accordance with theincorporation or by-laws.
membership rights in a corporationprovisions of its articles of
09-02-07 Board of Directors - means the group of persons vested withthe management of the affairs of a corporation irrespective ofthe names by which such group is designated.
09-02-08 Insolvent - means that a corporation is unable to pay itsdebts as they become due in the usual course of its affairs.
09-02-09 Treasurer - means the Tribal Treasurer or the agent or agentsdesignated by him to perform any function vested in theTreasurer by this Ordinance.
09-02-10 Reservation - means the Lake Traverse Reservation.
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09-02-11 The Court - means except where otherwise specified, theSisseton-Wahpeton sioux Tribal Court.
09-03-01 APPLICABILITYThe provisions of this Ordinance shall apply to allcorporations organized hereunder or which elect to accept theprovisions of this Chapter.
09-04-01 PURPOSECorporations may be organized under this Chapter for anylawful purpose or purposes including, but not limited to, oneor more of the following purposes: benevolent; religious;missionary; musical; social; athletic; patriotic; political;civil; professional; commercial; industrial; business; ortrade association; mutual improvement; promotion of the Arts.
09-05-01 GENERAL POWERSEach corporation shall have the power:
1. To have perpetual succession by its corporate name unlessa limited period of duration is stated in its articles ofincorporation;
2. To sue and be sued, complain and defend, in its corporatename;
3. to have a corporate seal which may be altered at pleasureand to use the same by causing it, or a facsimilethereof, to be impressed or affixed in any other mannerreproduced;
4. To purchase, take, receive, lease, take by gift orbequest or otherwise acquire, own, hold, improve, use,and otherwise deal in and with, real or personalproperty, or any interest therein, wherever situated;
5. To sell, convey, mortgage, pledge, lease, exchange,transfer, and otherwise dispose of all or any part of itsproperty and assets;
6. to lend money to and otherwise assist its employees otherthan its officers and directors;
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To purchase, take, receive, subscribe for, or otherwiseacquire, own, hold, vote, use, employ, sell, mortgage,loan, pledge, or otherwise dispose of, and otherwise useand deal in and with, shares or other interests in, orobligations of, corporations, whether or not incorporatedunder this Ordinance and whether for profit or not forprofit, associations, partnerships, or individuals, ordirect or indirect obligations of the united States, orof any other government, state, territory, governmentaldistrict, or municipality or of any instrumentalitythereof or any familiar tribe;
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8. To make contracts and incur liabilities, borrow money atsuch rates of interest as the corporation may determine,issue its notes, bonds, and other obligations, and secureany of its obligations by mortgage or pledge of all orany of its property, franchise and income;
9. To lend money for its corporate purposes, invest andreinvest into funds, and take and hold real and personalproperty as security for the payment of funds so loanedor invested;
10. To conduct its affairs, carryon its operations, holdproperty, and have offices and exercise the powersgranted by this Ordinance;
11. To elect or appoint officers andcorporation, and define their dutiescompensation;
agents of theand fix their
12. To make and alter by-laws, not inconsistent with itsarticles of incorporation or with the laws, ordinances,and regulations of the sisseton-Wahpeton sioux Tribe andthe united States, for the administration and regulationof the affairs of the corporation; and
13. Unless otherwise provided in the articles ofincorporation, to make donations for the public welfareor for religious, charitable, scientific research, oreducational purposes, or for other purposes for which thecorporation is organized.
09-06-01 DEFENSE OF ULTRA VIRESNo act of a corporation and no conveyance or transfer of realor personal property to or by a corporation shall be invalidby reason of the fact that the corporation was withoutcapacity or power to do such act or to make or receive suchconveyance or transfer, but such lack of capacity or power maybe asserted:
1. In a proceeding by a member or a director against thecorporation to enjoin the doing of any act, or thetransfer of real or personal property by or to thecorporation. If the act or transfer sought to beenjoined is being, or is to be, performed pursuant to anycontract to which the corporation is a party, the courtmay, if all of the parties to the contract are parties tothe proceedings and if it deems the same to be equitable,set aside and enjoin the performance of such contract, asthe case may be, compensation for the loss or damagessustained by either of them which may result from theaction of the Court in setting aside and enjoining theperformance of such contract, but anticipated profits tobe derived from the performance of the contract shall notbe awarded by the Court as a loss or damages sus~ine<di'L
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2. In a proceeding by the corporation, whether actingdirectly or through a receiver, trustee, or other legalrepresentative, or through members in a representativesuit, against the incumbent or former officers or trusteeof the corporation; and
3. In a proceeding by the Tribal Treasurer as provided inthis Chapter, to dissolve the corporation or in aproceeding by the Tribal Treasurer to enjoin thecorporation from the transaction of authorized acts.
09-07-01 CORPORATE NAMEThe Corporate Name:
1. Shall not contain any word or phrase which indicates orimplies that it is organized for any purpose other thanone or more of the purposes contained in its articles ofincorporation; and
2. Shall not be the same as, or deceptively similar to thename of any corporation, whether for profit or not forprofit organized under this Ordinance or any otherOrdinance or resolution of the Tribe to transact businessor conduct affairs in the Reservation.
09-08-01 REGISTERED OFFICE AND REGISTERED AGENTEach corporation shall have and continuously maintain on thisReservation.
1. A registered office; and
2. A registered agent.
09-09-01 REGISTERED AGENT AS AN AGENT FOR SERVICE
09-09-02 The registered agent appointed by a corporation as provided inthis Ordinance shall be an agent of such corporation upon whoma process, notice, or demand required or permitted by law tobe served upon the corporation may be served.
09-09-03 Whenever a corporation shall fail to appoint or maintain aregistered agent 1n this Reservation or whenever itsregistered agent cannot, with reasonable diligence, be foundat the registered office, then the Tribal Treasurer shall bean agent of such corporation upon whom any such process,notice, or demand shall be made by delivering to and leavingwith them, or with any clerk having charge of their office,duplicate copies of such process, notice or demand. In theevent that any such process, notice or demand is served on theTribal Treasurer, he shall immediately cause one of suchcopies thereof to be forwarded by registered or certifiedmail, addressed to the corporation at its registered office.
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09-09-04 The Tribal Treasurer shall keep a record of all processes,notices, and demands served upon them under this Section, andshall keep a record therein of the time of such service andtheir action with respect thereto.
09-09-05 Nothing herein contained shall limit or affect the right toserve any process, notice or demand required or permitted bylaw to be served upon a corporation in any other manner now orhereafter permitted by law.
09-10-01 MEMBERSA corporation may have members or may have no members. If thecorporation has members, the manner of election or appointmentand the qualifications and rights of the members shall be setforth in the articles of incorporation or the by-laws. If thecorporation has no members, that fact shall be set forth inthe articles of incorporation. A corporation may issuecertificates evidencing membership therein.
09-11-01 BY-LAWSThe initial by-laws of a corporation shall be adopted by itsBoard of Directors. The power to alter, amend, or repeal theby-laws or adopt new by-laws shall be vested in the Board ofDirectors unless otherwise provided in the articles ofincorporation or the by-laws.
09-12-01 MEETINGS OF MEMBERS
09-12-02 Meetings of members may be held at such place within orwithout the Reservation as may be provided in the by-laws or,where not inconsistent with the by-laws, in the notice of themeeting.
09-12-03 An annual meeting of the members shall be held at such time asmay be provided in the by-laws. Failure to hold the annualmeeting at the designated time shall not work a forfeiture ofdissolution of the corporation.
09-12-04 special meetings of the members may be called by thepresident, the secretary, the Board of Directors, or by suchother officers or persons or number or proportion of membersas may be provided in the articles of incorporation or the bylaws. In the absence of a provision fixing the number orproportion of members entitled to call a meeting, a specialmeeting having at least one-twentieth (1/20) of the votes tobe cast at such meeting.
09-13-01 NOTICE OF MEMBERS MEETINGwritten or printed notice stating the place, day and hour ofthe meeting, and, in case of a special meeting, the purpose orpurposes for which the meeting is called, shall in the absencefor a provision in the by-laws specifying a different periodof notice, be delivered not less than ten (10) or more thanfifty (50) days before the date of the meeting, eitherpersonally or by mail; or at the direction of the presi~t.i.'. (;( L'L
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or the secretary of the officers of persons calling themeeting, to each member entitled to vote at such meeting. Ifmailed, such notice shall be deemed to be delivered whendeposited in the United states mail, addressed to the memberat this address as it appears on the records of thecorporation, with postage thereon prepaid.
09-14-01 VOTING
09-14-02 Members shall not be entitled to vote except as the right tovote shall be conferred by the articles of incorporation.
09-14-03 A member may vote in person, or unless the articles ofincorporation or the by-laws otherwise provide, may vote byproxy executed in writing by the member or his duly authorizedattorney-in-fact. No proxy shall be valid after eleven (11)months from the date of its execution, unless otherwiseprovided in the proxy. Where the articles of incorporation orthe by-laws so provide, voting on all matters including theelection of directors or officers where they are to be electedby the members, may be conducted by mail.
09-14-04 The articles of incorporation or the by-laws may provide thatin all elections for directors every member entitled to voteshall have the right to cumulate his vote and to give onecandidate a number of votes equal to his vote mUltiplied bythe number of directors to be elected or by distributing suchvotes on the same principle among any number of suchcandidates.
09-14-05 If a corporation has no members or if the members have noright to vote, the directors shall have the sole voting powerand shall have all of the authority and may take any actionherein permitted by members.
09-15-01 QUORUM
09-15-02 The by-laws may provide the number or percentage of membersentitled to vote represented in person or by proxy, or thenumber or percentage of votes represented in person or byproxy, which shall constitute a quorum at a meeting ofmembers. In the absence of any such provisions, membershaving at least one-tenth (1/10) of the votes entitled to becast represented in person or by proxy shall constitute aquorum. The affirmative vote of a majority of the votesentitled to be cast by the members present or represented byproxy at a meeting at which a quorum is present, shallnecessary for the adoption of any matter voted upon by themembers, unless a greater proportion is required by thisOrdinance, the articles of incorporation or the by-laws.
09-15-03 Unless, otherwise provided by the articles of incorporation orthe by-laws, the members present at a duly organized meetingmay continue to do business until adjournment notwithstandingthe withdrawal of enough members to leave less tl;l.fII1).aCqitlorum.o .I\mendmrnt
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If a meeting cannot be organized because a quorum has notattended, those present may adjourn the meeting from time totime until a quorum is present, when any business may betransacted that may have been transacted at the meeting asoriginally called.
BOARD OF DIRECTORSThe affairs of a corporation shall be managed by a Board ofDirectors. Directors need not be residents of the Reservationor members of the corporation unless the articles ofincorporation or the by-laws may prescribe otherqualifications for directors.
NUMBER, ELECTION, CLASSIFICATION AND REMOVAL OF DIRECTORS
The number of directors of a corporation shall be not lessthan three. SUbject to such limitation, the number ofdirectors shall be fixed by the by-laws, except as to thenumber of the first Board of Directors, which number shall befixed by the article of incorporation. The number ofdirectors may be increased or decreased from time to time byamendment to the by-laws, unless the articles of incorporationprovide that a change in the number of directors shall be madeonly by amendment of the articles of incorporation. Nodecrease in number shall have the effect of shortening theterm of any incumbent director. In the absence of a by-lawfixing the number of the directors, the number shall be thesame as that stated in the articles of incorporation.
The names and addresses of the members of the first Board ofDirectors shall be stated in the articles of incorporation.Such persons shall hold office until the first annual electionof directors or for such period as may be specified in thearticles of incorporation or the by-laws. Thereafter,directors shall be elected or appointed in the manner and forthe terms of office, the term of office of a director shall beone (1) year.
Directors may be divided into classes and the terms of officeof the several classes need not be uniform. Each directorshall hold office for the term for which he is elected orappointed and qualified, except in the case of ex officiodirectors.
A director may be removed from office pursuant to anyprocedure therefor provided in the articles of incorporationor the by-laws, and if none be provided, may be removed at ameeting called expressly for that purpose, with or withoutcause, by such vote as would suffice for his election.
VACANCIESAny vacancy occurring in the Board of Directors and anydirectorship to be filled by reason of an increase in thenumber of directors may be filled by the affirmative vote ofa majority of the then members of the Board of Directors,
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though less than a quorum of the board, unless the articles ofincorporation or the by-laws provide that a vacancy ordirectorship so created shall be filled in some other manner,in which case such provision shall control. A directorelected or appointed, as the case may be, to fill a vacancyshall be elected or appointed for the unexpired term of hispredecessor in office.
QUORUM OF DIRECTORA majority of the number of directors fixed by the by-laws, orin the absence of a by-law fixing the number of directors,then of the number stated in the articles of incorporation,shall constitute a quorum for the transaction, shallconstitute a quorum for the transaction of business, unlessotherwise provided in the articles of incorporation, or theby-laws, but in no event shall a quorum consist of less thanone-third (1/3) of the number of directors so stated or fixed.The act of the majority of the directors present at a meetingat which a quorum is present shall be the act of a greaternumber is required by this Chapter or by the articles ofincorporation or the by-laws.
COMMITTEESIf the articles of incorporation or the by-laws so provide,the Board of Directors, by resolution adopted by a majority ofthe directors in the office, may designate and appoint one ormore committees, each of which shall consist of two or moredirectors, which committees, to the extent provided in saidresolution, in the articles of incorporation or in the by-lawsof the corporation, shall have and exercise the authority ofthe Board of Directors in the management of the corporation.other committees not having and exercising the authority ofthe Board of Directors in the management of the corporationmay be designated and appointed by a resolution adopted by amajority of the directors present at a meeting at Which aquorum is present. The designation and appointment of anysuch committee and the delegation thereto of authority shallnot operate to relieve the Board of Directors, or anyindividual director, of any responsibility imposed upon it orhim by law._
PLACE AND NOTICE OF DIRECTORS' MEETINGSMeeting of the Board of Directors, regular or special, may beheld at such place within or without the Reservation, and uponsuch notice as may be prescribed by the by-laws, or where notinconsistent with the by-laws, by resolution of the Board ofDirectors. A director's attendance at any meeting shallconstitute a waiver of notice of such meeting, excepting suchattendance at a meeting by the director for the purpose ofobjecting to the transaction of business because the meeting isnot laWfully called or convened. Neither the business to betransacted, nor the purpose of, any regUlar or special meetingof the Board of Directors need be specified in the notice orwaiver of such notice, of such meeting, unless otherwiseprovided in the articles of incorporation or the by-laws.
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09-22-01 OFFICERS
09-22-02 The officers of a corporation shall consist of a president, asecretary, and a treasurer, and may include one or more vicepresidents, and such other officers and assistant officers asmay be deemed necessary, each of whom shall be elected orappointed at such time and in such manner and for such termsnot exceeding three (3) years as may be prescribed in thearticles of incorporation or the by-laws. In the absence ofany such provision, all officers shall be elected or appointedannually by the Board of Directors. If the by-laws soprovided, any two or more offices may be held by the sameperson, except the offices of president and secretary.
09-22-03 The articles of incorporation or the by-laws may provide thatanyone or more officers of the corporation or otherorganizations shall be ex officio members of the Board ofDirectors.
09-22-04 The officers of a corporation may be designated by such othertitles as may be provided in the articles of incorporation orthe by-laws.
09-22-05 All officers and agents of the corporation, as betweenthemselves and the corporation, shall have such authority andperform such duties in the management of the property andaffairs of the corporation as may be provided in the by-laws,or as may be determined by resolution of the Board ofDirectors not inconsistent with the by-laws.
09-23-01 REMOVAL OF OFFICERSAny officer or agent elected or appointed may be removed bythe persons authorized to elect or appoint such officer oragent whenever, in their judgement, the best interest of thecorporation will be served thereby, but such removal shall bewithout prejUdice to the contract right, if any, of the personso removed. Election or appointment of an officer or agentshall not in itself create contract rights.
09-24-01 BOOKS AND RECORDSEach corporation shall keep correct and complete books andrecords of account and shall keep minutes of the proceedingsof its members, Board of Directors, and committees having anyof the authority of the Board of Directors; and shall keep atits registered office or principle office on the Reservation,a record of the names and addresses of its members entitled tovote. All books and records of a corporation may be inspectedby any member having voting rights, or his agent or attorneyfor any proper purpose at any reasonable time.
09-25-01 SHARES OF STOCK AND DIVIDENDS PROHIBITEDA corporation shall not authorize or issue shares of stock.
e ,:, No dividend shall be paid and no part of the income of a-, corporation shall be distributed to its members, directors, or
12' officers. A corporation may pay compensation, LncLud i nq
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pensions, in a reasonable amount to its members, directors, orofficers for services rendered, may confer benefits upon itsmembers in conformity with its purposes, and upon dissolutionor final liquidation, may make distribution to its members orothers as permitted by this Chapter.
09-26-01 LOANS TO DIRECTORS AND OFFICERS PROHIBITEDNo loans shall be made by a corporation to its directors orofficers. The directors of a corporation who vote for orassent to the making of a loan to a director or an officer ofthe corporation, and any officer participating in the makingof such a loan, shall be jointly and severally liable to thecorporation for the amount of such loan until the repaymentthereof.
09-27-01 INCORPORATIONThree (3) or more natural persons of the age of twenty-one(21) years or more may act as incorporators of a corporationby signing, certifying, and delivering in duplicate to theTribal Treasurer, articles of incorporation for suchcorporation.
09-28-01 ARTICLES OF INCORPORATION
09-28-02 The articles of incorporation shall be set forth:
1. The name of the corporation;
2. The period of duration, which may be perpetual;
3. The purpose or purposes for which the corporationorganized;
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4.
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If the corporation is to have no members, a statement tothat effect;
If the corporation is to have members, any provisionwhich the incorporators elect to set forth 1n thearticles of incorporation stating the qualifications andrights of members and conferring, limiting, or denyingthe right to vote;
If the directors or any of them are not to be elected orappointed by members, a statement of the manner in whichsuch directors shall be elected or appointed, or that themanner of such election or appointment of such directorsshall be provided in the by-laws;
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7. Any provisions, not inconsistent with this Ordinance orany other law or ordinance of the Sisseton-Wahpeton siouxTribe which the incorporators elect to set forth in thearticles of incorporation for the regulation of theinternal affairs of the corporation, including anyprovision for distribution of assets on dissolution orfinal liquidation and any provisions whir under thisChapter is required or permitted to be set forth in theby-laws;
8. The address, including street and number, if any, of itsinitial registered office, and name of its initialregistered agent at such addressj
9. The number of directors constituting the initial board ofdirectors, and the names and addresses, including streetand number, if any, of the persons who are to serve asthe initial directors until the first annual meeting oruntil their successors be elected and qualify; and,
10. The name and address, including street and number, ifany, of each incorporator.
09-28-03 It shall not be necessary to set forth in the articles ofincorporation any of the corporate powers enumerated in thisChapter.
09-28-04 Unless the articles of incorporation provide that a change inthe number of directors shall be made only by amendment to thearticles of incorporation, a change in the number of directorsmade by amendment to they by-laws shall be controlling.Whenever a provision of the articles of incorporation isinconsistent with a by-law, the provision of the articles ofincorporation shall be controlling.
09-29-01 FILING OF ARTICLES OF INCORPORATION
09-29-02 Duplicate originals of the articles of incorporation shall bedelivered to the Tribal Treasurer.
09-29-03 If the Tribal Treasurer finds that the articles ofincorporation conform to law, they shall, when all feescharges have been paid as in this Chapter prescribed:
1. Endorse on each of such duplicate originals the word"Filed" and the month, day, and year of filing thereof;
2. File one of such duplicate originals in their office;
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3. Issue a certificate of incorporation to which they shallaffix the other duplicate original; and
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4. Deliver the certificate of incorporation, together withthe duplicate original of the articles of incorporationaffixed thereto, to the incorporators or theirrepresentative.
09-30-01 EFFECT OF ISSUANCE OF CERTIFICATE OF INCORPORATIONUpon the incorporation, the corporate existence shall begin,and such certificate of incorporation shall be conclusiveevidence that all conditions precedent required to beperformed by the corporation have been complied with and thatthe corporation has been incorporated under this Chapter,except as against the Sisseton-Wahpeton sioux Tribe in aproceeding to cancel or revoke the certificate ofincorporation.
09-31-01 ORGANIZATION MEETING
09-31-02 After the issuance of the certificate of incorporation, anorganization meeting of the Board of Directors named in thearticles of incorporation shall be held within the Reservationat the call of a majority of the directors so named for thepurpose of adopting by-laws, (unless the power to adopt bylaws has been reserved by the articles of incorporation to themembers, in which event the by-laws shall be adopted by themembers), electing officers, and the transaction of such otherbusiness as may come before the meeting. The directorscalling the meeting shall give at least five (5) days noticethereof by mail to each director so named; which notice shallstate the time and place of the meeting; provided, however,that if all the directors shall waive notice in writing andfix a time and place for said organization meeting, no noticeshall be required for such meeting.
09-31-03 A first meeting of the members may be held at the call of thedirectors, or a majority of them, upon at least five (5) daysnotice, for such purposes as shall be stated in the notice ofthe meeting.
09-32-01 RIGHT TO AMEND ARTICLES OF INCORPORATIONA corporation may amend its articles of incorporation, fromtime to time, in any and as many respects as may be desired;provided that its articles of incorporation as amended containonly such provisions as might be lawfully contained inoriginal articles of incorporation if made at the time ofmaking such amendment.
09-33-01 PROCEDURE TO AMEND ARTICLES OF INCORPORATIONAmendments to the articles of incorporation shall be made inthe following manner:
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Where there are members having voting rights, the Board ofDirectors shall adopt a resolution setting forth the proposedamendment and directing that it is to be submitted to a voteat a meeting of members having voting rights, which may beeither an annual or a special meeting;
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09-33-03 written or printed notice setting forth the proposed amendmentor a summary of the changes to be affected thereby shall begiven to each member entitled to vote at such meeting withinthe time and in the manner provided in this Chapter for thegiving of notice of meetings of members. If the meeting be anannual meeting, the proposed amendment or such summary shallbe included in the notice of such annual meeting;
09-33-04 The proposed amendment shall be adopted upon receiving theaffirmative vote of at least two-thirds (2/3) of the votesentitled to be cast by members present or represented by proxyat such meeting;
09-33-05 Where there are no members, or no members having votingrights, an amendment shall be adopted at a meeting of theBoard of Directors upon receiving the vote of a majority ofthe Directors in office; and
09-33-06 Any number of amendments may be submitted and voted upon atanyone meeting.
09-34-01 ARTICLES OF AMENDMENTThe articles of amendment shall be executed in duplicate bythe corporation; by its president or a vice-president, and thecorporate seal shall be thereto affixed, attested by itssecretary or an assistant secretary, and shall set forth:
1. The name of the corporation;
2. The amendment so adopted;
3. Where there are members having voting rights;
a. A statement setting forth the date of the meetingof members at which the amendment was adopted, thata quorum was present at such meeting, and that suchamendment received at least two-thirds (2/3) of thevotes entitled to be cast by members present orrepresented by proxy at such meeting; or
b. A statement that such amendment was adopted by aconsent in writing signed by all members entitledto vote with respect thereto;
4. Where there are no members, or no members having votingrights, a statement of such fact, the date of the meetingof the Board of Directors at which the amendment wasadopted, and a statement of the fact that such amendmentreceived the vote of a majority of the directors inoffice.
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FILING OF ARTICLES OF AMENDMENT
Duplicate originals of the articles of amendment shall bedelivered to the Tribal Treasurer.
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09-35-03 If the Tribal Treasurer finds that the articles of amendmentconform to law, they shall, when all fees and charges havebeen paid as in this Chapter prescribed:
1. Endorse on each of such duplicate originals the word"Filed", and the month, day, and year of the filingthereof;
2. File one of such duplicate originals in their office;
3 • Issue a certificate of amendment to which they shallaffix the other duplicate originals; and
4. Deliver the certificate of amendment, together with theduplicate original of the articles of amendment affixedthereto, to the corporation or its representative.
09-36-01 EFFECT OF CERTIFICATE OF AMENDMENT
theof
09-36-02 Upon the issuance of the certificate of amendment,amendment shall become effective and the articlesincorporation shall be deemed to be amended accordingly.
09-36-03 No amendment shall affect any existing cause of action infavor of or against such corporation, or any pending suit towhich such corporation shall be a party, or the existingrights of persons other than members; and, in the event thecorporate name shall be changed by amendment, no suit broughtor against such corporation under its former name shall abatefor that reason.
09-37-01 VOLUNTARY DISSOLUTIONA corporation may dissolve and wind up its affairs in thefollowing manner:
Where there are members having voting rights, the Boardof Directors shall adopt a resolution recommending thatthe corporation be dissolved and directing that thequestion of such dissolution be submitted to a vote at ameeting of members having voting rights, which may beeither an annual meeting or a special meeting. writtenor printed notice stating that the purpose, or one of thepurposes, of such meeting is to consider the advisabilityof dissolving the corporation, shall be given to eachmember entitled to vote at such meeting, within the timeframe and in the manner provided in this chapter, for thegiving of notice of meetings to members. A resolution todissolve the corporation shall be adopted upon receivingat least two-thirds (2/3) of the votes entitled to becast by members present or represented by proxy at suchmeeting;
s.W.S.T. CODto Amendment
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09-14
2. Where there are no members, or no members having votingrights, the dissolution of the corporation shall beauthorized at a meeting of the Board of Directors uponthe adoption of a resolution to dissolve by the vote ofa majority of the directors in office; and
3. Upon adoption of such resolution by the members, or bythe Board of Directors where there are no members ormembers with voting rights, the corporation shall ceaseto conduct its affairs except insofar as may be necessaryfor the winding up thereof; shall immediately cause anotice of the proposed dissolution to be mailed to eachknown creditor of the corporation and shall proceed tocollect its assets and apply and distribute them asprovided in this Chapter.
09-38-01 DISTRIBUTION OP ASSETSThe assets of a corporation in the process of dissolutionshall be applied and distributed as follows:
1. All liabilities and obligations of the corporation shallbe paid, satisfied, and discharged, or adequateprovisions shall be made therefor;
2. Assets held by the corporation upon condition requiringreturn, transfer, or conveyance, which condition occursby reason of the dissolution, shall be returned,transferred, or conveyed in accordance with suchrequirements;
3. Assets received and held by the corporation sUbject tolimitations, permitting their use only for charitable,religious, missionary, benevolent, education, or similarpurposes, but not held upon a condition requiring return,transfer, or conveyance by reason of the dissolution,shall be transferred, or conveyed to one or more domesticor foreign corporations, societies, or organizationsengaged in activities sUbstantially similar to those ofthe dissolving corporation, pursuant to a plan ofdistribution adopted as provided in this Chapter;
4. Other assets, if any, shall be distributed in accordancewith the provisions of the articles of incorporation orthe by-laws to the extent that the articles ofincorporation or by-laws determine the distributiverights of members, or any class of classes of members, orprovide for distribution to others; and
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5. Any remaining assets may be distributed to such persons,societies, organizations, or domestic or foreigncorporations, whether for profit or not for profit, asmay be specified if a plan of distribution is adopted asprovided in this Chapter.
09-15
09-39-01 PLAN FOR DISTRIBUTIONA plan providing for the distribution of assets, notinconsistent with the provisions of this Chapter, may beadopted by a corporation in the process of dissolution andshall be adopted by a corporation for the purpose ofauthorizing any transfer or conveyance of assets for whichthis Chapter requires a plan for distribution, in thefollowing manner:
1. Where there are members having voting rights the Board ofDirectors shall adopt a resolution recommending a plan ofdistribution and directing that the plan be submitted toa vote at a meeting of members having boeing rights,which may be either an annual meeting or a specialmeeting. Written or printed notice setting forth theproposed plan of distribution or a summary thereof shallbe given to each member entitled to vote at such meeting,within the time and in the manner provided in thisChapter for the giving of notice of meetings of members.Such plan of distribution shall be adopted upon receivingat least two-thirds (2/3) of the votes entitled to becast by members present or represented by proxy at suchmeeting; and
2. Where there are no members, or no members having votingrights, a plan of distribution shall be adopted at ameeting of the Board of Directors upon receiving the voteof a majority of the directors in office.
09-40-01 REVOCATION OF VOLUNTARY DISSOLUTION PROCEEDINGSA corporation may, at any time prior to the issuance of acertificate of dissolution by the Tribal Treasurer ashereinafter provided, revoke the action theretofore taken todissolve the corporation in the following manner:
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1. Where there are members having voting rights, the Boardof Directors shall adopt a resolution recommending thatthe voluntary dissolution proceedings be revoked, anddirecting that the question of such revocation beSUbmitted to a vote at the meeting of members havingvoting rights, which may be either an annual or a specialmeeting. written or printed notice stating that thepurpose, or one of the purposes of such meeting is toconsider the advisability of revoking the voluntarydissolution proceedings, shall be given to each memberentitled to vote at such a meeting within the time and inthe manner provided in this Chapter for the giving ofnotice of meetings of members. A resolution to revokethe voluntary dissolution proceedings shall be adoptedupon receiving at least two-thirds (2/3) of the votesentitled to be cast by members present or represented byproxy at such meeting;
09-16
2. Where there are no members, or no members having votingrights, a resolution to revoke the voluntary dissolutionproceedings shall be adopted at a meeting of the Board ofDirectors upon receiving the vote of a majority of thedirectors in office; and
3. upon adoption of such resolution by the members, or bythe Board of Directors, where there are no members or nomembers with voting rights, the corporation maythereupon again conduct its affairs. If the articles ofdissolution have been delivered to the Tribal Treasurer,notice of such revocation shall be given to them inwriting.
09-41-01 ARTICLES OF DISSOLUTIONIf voluntary dissolution proceedings have not been revoked;when all debts, liabilities, and obligations of thecorporation shall have been paid and discharged, or adequateprovisions shall have been made therefor, and all of theremaining property and assets of the corporation shall havebeen transferred, conveyed, or distributed in accordance withthe provisions of this Chapter, articles of dissolution shallbe executed in duplicate by the corporation; by its presidentor a vice-president, and the corporation seal shall be theretoaffixed and attested by its secretary or an assistantsecretary, and such statement shall set forth:
1. The name of the corporation;
2. Where there are members having voting rights
a. a statement setting forth the date of the meetingof members at which the resolution to dissolve wasadopted, that a quorum was present at such meeting,and that such resolution received at least twothirds (2{3) of the votes entitled to be cast bymembers or represented by proxy at such meeting; or
b. a statement that such resolution was adopted by aconsent in writing signed by all members entitledto vote with respect thereto;
3. Where there are no members, or no members having votingrights, a statement of such fact, the date of the meetingof the Board of Directors at which the resolution todissolve received the vote of a majority of the directorsin office;
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4. That all debts, liabilities, and obligations of thecorporation have been paid and discharged or thatadequate provision has been made therefor;
09-17
5. That all the remaining property and assets of thecorporation have been transferred, conveyed, ordistributed in accordance with the provisions of thisChapter; and
6. That there are no suits pending against the corporationin any Court, or that adequate provision has been madefor the satisfaction of any judgement, order, or decreewhich may be entered against it in any pending suit.
09-42-01 FXLXNG OF ARTXCLES OF DXSSOLUTXON
09-42-02 Duplicate originals of such articles of dissolution shall bedelivered to the Tribal Treasurer.
09-42-03 If the Tribal Treasurer finds that such articles ofdissolution conform to law, he shall, when all fee and chargeshave been paid as in this Chapter prescribed:
1. Endorse on each of such duplicate originals the word"Filed", and the month, day, and year of such filingthereof;
2. File one of such duplicate originals in their office;
3. Issue a certificate of dissolution to which they shallaffix the other duplicate original; and
4. Deliver the certificate of dissolution, together with theduplicate original of the articles of dissolution affixedthereto, to the representative of the dissolvedcorporation.
09-42-04 Upon the issuance of such certificate of dissolution, theexistence of the corporation shall cease, except for thepurpose of suits, other proceedings, and appropriate corporateaction by members, directors, and officers, as provided inthis Chapter.
09-43-01 XNVOLUNTARY DXSSOLUTXON
09-43-02 A corporation may be dissolved involuntarily by a decree ofthe Court in an action instituted by the Tribal Treasurer inthe name of the sisseton-Wahpeton sioux Tribe, when it is madeto appear to the Court that:
1. The franchise of the corporation was procured throughfraud; or
2 • The corporation has continued to exceed or abuse theauthority conferred upon it by this Chapter; or
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3. the corporation has failed for ninety (90) days toappoint and maintain a registered agent as provided inthis Chapter; or
09-18
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4. The corporation has failed for ninety (90) days afterchange of its registered office or registered agent todeliver to the Tribal Treasurer a statement of suchchange.
09-43-03 At least thirty (30) days before any action for theinvoluntary dissolution of a corporation shall be filed by theTribal Treasurer, he shall notify the corporation by certifiedor registered mail addressed to such corporation at itsregistered office, a notice of their intention to file suchsuit and the reasons therefor. If, before action is filed,the corporation shall submit satisfactory evidence that saidfranchise was not procured through fraud or that thecorporation has not exceeded or abused such authority or shallappoint or maintain a registered agent as provided in thisChapter, or deliver to the Tribal Treasurer, the requiredstatement of change or registered agent, the Tribal Treasurershall not file an action against such a corporation for suchcause. If, after action is filed, for a reason stated inparagraph 3 or 4 of the preceding sUbsection the corporationshall, as the case may be, appoint or maintain a registeredagent as provided in this Chapter, or shall deliver to theTribal Treasurer, the required statement of change ofregistered agent, and shall pay the costs of such action, theaction for such cause shall abate.
09-44-01 JURISDICTION OF COURT TO LIQUIDATE ASSETS AND AFFAIRS OFCORPORATIONThe Sisseton-Wahpeton sioux Tribal Court shall have full powerto liquidate the assets and affairs of a corporation.
09-44-02 In any action by a member or director when it is made toappear:
1. That the directors are deadlocked in the management ofthe corporate affairs and that irreparable injury to thecorporation is being suffered or is threatened by reasonthereof, and either that the members are unable to breakthe deadlock or there are no members having votingrights; or
2. That the acts of the directors or those in control of thecorporation are illegal, oppressive or fraudulent; or
3. That the corporate assets are being misapplied or wasted;or
4. That the corporation is unable to carry out its purpose.
09-44-03 In an action by a creditor:
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1. When the claim of the creditor has been reduced tojUdgement and an execution thereon has been returnedunsatisfied and it is established that the corporation isinsolvent; or
09-19
2. When the corporation has admitted in writing and theclaim of the creditor as due and owing and it isestablished that the corporation is insolvent; or
09-44-04 Upon application by a corporation to have its dissolutioncontinued under the supervision of the Court;
09-44-05 When an action has been commenced by the Tribal Treasurer todissolve a corporation and it is made to appear thatliquidation of its affairs should precede the entry of adecree of dissolution;
09-44-06 It shall not be necessary to make directors or members partiesto any such action or proceeding unless relief is soughtagainst them personally.
09-45-01 PROCEDURE IN LIQUIDATION OF CORPORATION BY COURT
09-45-02 In proceedings to liquidate the assets and affairs of acorporation, the Court shall have the power to issueinjunctions, to appoint receivers pendente lite, with suchpowers and duties as the court, from time to tome may direct,and to take such other proceedings as may be requisite topreserve the corporate assets wherever situated, and carryonits affairs of the corporation until a full hearing can behad.
09-45-03 After a hearing had upon such notice as the Court may directto be given to all parties to the proceedings and to any otherparties in interest designated by the Court, the Court mayappoint a liquidating receiver or receivers with authority tocollect the assets of the corporation. Such liquidatingreceiver or receivers shall have authority sUbject to theorder of the Court, to sell, convey, and dispose of all or anypart of the assets of the corporation wherever situated,either at pUblic or private sale. The order appointing suchliquidating receiver or receivers shall state their powers andduties. Such power and duties may be increased or diminishedat any time during the proceedings.
09-45-04 The assets of the corporation or the proceeds resulting froma sale, conveyance, or other disposition thereof shall beapplied and distributed as follows:
1. All costs and expenses of the Court proceedings and allliabilities and obligations of the corporation shall bepaid, satisfied, and discharged, or adequate provisionshall be made therefor;
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2. Assets held by the corporation upon conditions requiringreturn, transfer, or conveyance, which conditions occursby reason of dissolution of liquidation, shall bereturned, transferred, or conveyed in accordance withsuch requirements;
09-20
09-45-05
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3. Assets received and held by the corporation subject tolimitations permitting their use only for charitable,religious, eleemosynary, benevolent, educational, orsimilar purposes, but not held upon a condition requiringreturn, transfer, or conveyance by reason of thedissolution or liquidation, shall be transferred orconveyed to one or more domestic or foreign corporations,societies, or organizations engaged in activitiessUbstantially similar to those of the dissolving orliquidating corporation as the Court may direct;
4. Other assets, if any, shall be distributed in accordancewith the provisions of the articles of incorporation orthe by-laws to the extent that the articles ofincorporation or by-laws determine the distributiverights of the members or any class or classes of members,or provide for distribution to others; and
5. Any remaining assets may be distributed to such persons,societies, organizations, or domestic or foreigncorporations, whether for profit of not for profit,specified in the plan of distribution adopted as providedin this Chapter, or where no plan of distribution hasbeen adopted, as the Court may direct.
The Court shall have power to allow, from time to time, asexpenses of the liquidation, compensation to the receiver orreceivers and to attorneys in the proceeding, and to directthe payment thereof out of the assets of the corporation orthe proceeds of any sale of disposition of such assets.
A receiver of a corporation appointed under the provisions ofthis section shall have authority to sue and defend in allcourts in his own name as receiver of such corporation. TheCourt appointing such receiver shall, for the purposes of thisOrdinance have exclusive jurisdiction of the corporation andits property, wherever situated.
QUALIFICATION OF RECEIVERSA receiver shall in all cases be a natural person or adomestic corporation authorized to act as receiver, and shallin all cases give such bond as the Court may direct with suchsureties as the Court may require.
FILING OF CLAIMS IN LIQUIDATION PROCEEDINGIn proceeds to liquidate the assets and affairs of acorporation, the Court may require all creditors of thecorporation to file with the Clerk of Court or with thereceiver, in such form as the Court may prescribe, proofsunder oath of their respective claims. if the Court requiresthe filing of claims, it shall fix a date which shall not beless than four (4) months from the date of the order, as thelast day for the filing of claims, and shall prescribe thenotice that shall be given to creditors and claimants of the
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09-48-01
09-49-01
09-50-01
09-51-01
09-52-01
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date so fixed. Prior to the date so fixed, the Court mayextend the time for the filing of claims. Creditors andclaimants failing to file proofs or claims on or before thedate so fixed may be barred, by order of the Court, fromparticipating in the distribution of the assets of thecorporation.
DISCONTINUANCE OF LIQUIDATION PROCEEDINGSThe liquidation of assets and affairs of a corporation may bediscontinued at any time during the liquidation proceedingswhen it is made to appear that cause for liquidation no longerexists. In such event the Court shall dismiss the proceedingsand direct the receiver to redeliver to the corporation allits remaining property and assets.
DECREE OF INVOLUNTARY DISSOLUTIONIn proceedings to liquidate the assets and affairs of acorporation, when the cots and expenses of such proceedingsand all debts, obligations, and liabilities of the corporationshall have been paid and discharged and all of its remainingproperty and assets are not sufficient to satisfy anddischarge such costs, expenses, debts, and obligations, andall the property and assets have been applied so far as theywill go to their payment, the Court shall enter a decreedissolving the corporation, whereupon the existence of thecorporation shall cease.
FILING DECREE OF DISSOLUTIONIn case the Court shall enter a decree dissolving acorporation, it shall be the duty of the Clerk of Court tocause a certified copy of the decree to be delivered to theTribal Treasurer, Who shall file the same. No fee shall becharged by the Tribal Treasurer for the filing thereof.
DEPOSITS WITH TRIBAL TREASURERUpon the voluntary or involuntary dissolution of acorporation, the portion of the assets distribution to anyperson who are unknown or cannot be found, or who are underdisability and there is no person legally competent to receivesuch distributive portion, shall be reduced to cash anddeposited with the Tribal Treasurer and shall be paid over tosuch person or to his legal representative upon proofsatisfactory to the Court of his right thereto.
SURVIVAL OF REMEDY AFTER DISSOLUTIONThe dissolution of a corporation or the expiration of itsperiod of duration shall not take away or impair any remedyavailable to or against such corporation, its director,officers, or members for any right or claim existing, or anyliability incurred, prior to such dissolution if suit or other
09-22
proceeding thereon is commenced within two (2) years after thedate of such dissolution. Any suit or proceedings by oragainst the corporation may be prosecuted or defended by thecorporation in its corporate name. The members, directors andofficers shall have the power to take such corporate or otheraction as shall be appropriate to protect such remedy, rightor claim. If such corporation was dissolved by the expirationof its period of duration, such corporation may amend itsarticles of incorporation at any time during such period oftwo (2) years so as to extend its period of duration.
09-53-01 ANNUAL REPORT OF DOKESTXC AND FOREXGN CORPORATXONS
09-53-02 Each domestic corporation shall prepare an annual reportsetting forth:
1. The name of the corporation;
2. The address of its registered office and the name of itsregistered agent;
3. A brief statement of the character of the affairs whichthe corporation is actually conducting; and
4. The names and respective addresses, including street andnumber, if any, of the directors and officers of thecorporation.
09-53-03
09-54-01
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Such annual report shall be made on forms prescribed andfurnished by the Tribal Treasurer and the information thereincontained shall be given as of the date of the execution ofthe report. It shall be executed by the corporation; by itspresident, a vice-president, secretary, or assistantsecretary, treasurer, or assistant treasurer, or if thecorporation is in the hands of a receiver or receivers, ortrustee, it shall be executed by such receiver, receivers, ortrustee.
FXLXNG OF ANNUAL REPORT OF CORPORATIONSuch annual report of a corporation shall be delivered to theTribal Treasurer. If the Tribal Treasurer, between the firstday of January and the first day of March of each year, findsthat such report conforms to law, he shall file the same. Ifhe finds that it does not so conform, he shall promptly returnthe same to the corporation for any necessary correction, inwhich event the penalties hereinafter prescribed for failureto file such report within the time hereinafter provided shallnot apply, if such reports is corrected to conform to therequirements of this Chapter and returned to the TribalTreasurer in sUfficient time to be filed prior to the firstday of July of the year in which it is due.
09-23
09-55-01 PENALTIES IMPOSED UPON CORPORATIONSEach corporation, foreign or domestic, that fails or refusesto file its annual report for any year within the timeprescribed by this Chapter shall be sUbject to a penalty offive dollars ($5.00), to be assessed by the Tribal Treasurer.
09-56-01 FEES FOR FILING DOCUMENTS AND ISSUING CERTIFICATESThe Tribal Treasurer shall charge and collect for:
1. Filing articles of incorporation andcertificate of incorporation;
issuing a
2. Filing articles of amendment and issuing a certificate ofamendment;
3. Filing a statement of change of address of registeredoffice or change of registered agent, or both;
4. Filing articles of dissolution;
5. Filing a statement of election to accept this Chapter andissuing certificate of acceptance;
6. Filing any other statement or report, including an annualreport of a domestic or foreign corporation;
7. Indexing each document filed, except an annual report;
8. Furnishing a certified copy of any document, instrument,or paper relating to a corporation;
9. Furnishing a certificate as to the existence of a factrelating to a corporation; and
09-56-02
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The Tribal Treasurer is authorized to make regulationsproviding for reasonable fees for other services not listed inthis section.
CERTIFICATES AND CERTIFIED COPIES TO BE RECEIVED IN EVIDENCEAll certificates issued by the Tribal Treasurer in accordancewith the provisions of this Ordinance and all copies ofdocuments filed in his or her office in accordance with theprovision of this Ordinance, when certified by him or her,shall be taken and received in all Courts, public offices, andofficial bodied as prima facie evidence of the facts thereinstated. A certificate by the Tribal Treasurer under the sealof his or her office, as to the existence or non-existence ofthe facts relating to corporation which would not appear froma certified copy of any of the foregoing documents orcertificates shall be taken and received in all courts, publ Lcoffices an official bodies as prima facie evidence of theexistence or non-existence of the facts therein stated.
09-24
09-58-01
09-59-01
09-60-01
09-61-01
09-62-01
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FORHS TO BE FURNISHED BY THE TRIBAL TREASURERAll reports required by this Ordinance to be filed in theoffice of the Tribal Treasurer shall be made on forms whichshall be prescribed and furnished by the Tribal Treasurer.Forms for all other documents to be filed in the office of theTribal Treasurer on request therefor, but the use thereof,unless otherwise specifically prescribed in this Chapter,shall not be mandatory.
GREATER VOTING REQUIREMENTSWhenever, with respect to any action to be taken by themembers or directors of a corporation, the articles ofincorporation requires the vote or concurrence of a greaterproportion of the members or directors, as the case may be,than required by this Ordinance, with respect to such action,the provisions of the articles of incorporation shall control.
WAIVER OF NOTICEWhenever any notice is required to be given to any member ordirector of a corporation under the provisions of the articlesof incorporation, or by-laws of the corporation, a waiverthereof in writing signed by the person or persons entitled tosuch notice, whether before or after the time stated therein,shall be equivalent to the giving of such notice. Presencewithout objection also waivers notice.
ACTION BY MEMBERS OR DIRECTORS WITHOUT A MEETINGAny action required by this Ordinance to be taken at a meetingof the members or directors of a corporation, or any actionwhich may be taken at a meeting, of the members or directors,may be taken without a meeting, if consent in writing, settingforth the action so taken, shall be signed by all of themembers entitled to vote with respect to the SUbject matterthereof, or all of the directors, as the case may be. Suchconsent shall have the same force and effect as a unanimousvote, and may be stated as such in any articles or documentsfiled with the Tribal Treasurer under this Ordinance.
SEVERABILITYIf any clause, sentence, paragraph, section, or part of thiscode shall for any reason be adjudicated by any Court ofcompetent jurisdiction, to be invalid or unconstitutional,such judgement shall not affect, impair, or invalidate theremainder thereof, but shall be confined in its operation tothe clause, sentence, paragraph, section, or part thereofdirectly involved in the controversy in which the jUdgementshall have been rendered.
09-25