§ 1.40. Definitions
As used in this title:
(1) “Approved by (or approval by) the members” means approved or ratified when the votes
cast by the members favoring the action exceed the votes cast opposing the action,
at a duly held meeting at which a quorum is present or by a written ballot or written
consent in conformity with this title or by the affirmative vote, written ballot or
written consent of such greater proportion, including the votes of all the members
of any class, unit or grouping as may be provided in the articles, bylaws or this
title for any specified member action.
(2) “Articles of incorporation” or “articles” include amended and restated articles of
incorporation and articles of merger.
(3) “Board” or “board of directors” means the board of directors except that no person
or group of persons are the board of directors because of powers delegated to that
person or group pursuant to section 8.01 of this title.
(4) “Bylaws” means the code or codes of rules (other than the articles) adopted pursuant
to this title for the regulation or management of the affairs of the corporation,
stored or depicted in any tangible or electronic medium, and irrespective of the name
or names by which such rules are designated.
(5) “Class” refers to a group of memberships which have the same rights with respect to
voting, dissolution, redemption, and transfer. For the purpose of this section, rights
shall be considered the same if they are determined by a formula applied uniformly.
(6) “Corporation” means public benefit and mutual benefit corporation.
(7) “Delegates” means those persons elected or appointed to vote in a representative assembly
for the election of a director or directors or on other matters.
(8) “Deliver” or “delivery” means any method of delivery used in conventional commercial
practice, including delivery by hand, mail, commercial delivery, and electronic transmission.
(9) “Directors” means individuals, designated in the articles or bylaws or elected by
the incorporators, and their successors and individuals elected or appointed by any
other name or title to act as members of the board. The term “trustees” may be used
instead of “directors” and shall have the same meaning.
(10) “Distribution” means the payment of a dividend or any part of the income or profit
of a corporation to its members, directors, or officers.
(11) “Domestic corporation” means a corporation.
(12) “Effective date of notice” is defined in section 1.41 of this title.
(13) “Employee” includes an officer but not a director. A director may accept duties that
make the director an employee.
(14) “Entity” includes corporation and foreign corporation; business corporation and foreign
business corporation; profit and nonprofit unincorporated association; business trust,
estate, partnership, trust, and two or more persons having a joint or common economic
interest; and state, United States; and foreign government.
(15) “File,” “filed,” or “filing” means filed in the Office of the Secretary of State.
(16) “Foreign corporation” means a corporation organized under a law other than the law
of this State which would be a nonprofit corporation if formed under the laws of this
State.
(17) “Governmental subdivision” includes authority, county, district, and municipality.
(18) “Includes” denotes a partial definition.
(19) “Individual” includes the estate of an individual who is incompetent.
(20) “Means” denotes a complete definition.
(21) “Member” means (without regard to what a person is called in the articles or bylaws)
any person or persons who on more than one occasion, pursuant to a provision of a
corporation’s articles or bylaws, have the right to vote for the election of a director
or directors. A person is not a member by virtue of any of the following:
(A) any rights such person has as a delegate;
(B) any rights such person has to designate a director or directors;
(C) any rights such person has as a director; or
(D) any rights of association, not including the right to vote for the election of a director
or directors, created in the corporation’s articles of incorporation or bylaws for
persons who participate in the activities of the corporation.
(22) “Membership” refers to the rights and obligations a member or members have pursuant
to a corporation’s articles, bylaws, and this title.
(23) “Mutual benefit corporation” means a domestic corporation which is required to be
a mutual benefit corporation pursuant to section 17.05 of this title or is formed as a mutual benefit corporation pursuant to chapter 2 of this title.
(24) “Notice” is defined in section 1.41 of this title.
(25) “Person” includes any individual or entity.
(26) “Principal office” means the office (in or outside this State) so designated in the
biennial report filed pursuant to section 16.22 of this title where the principal office of a domestic or foreign corporation is located.
(27) “Proceeding” includes civil suit and criminal, administrative, and investigatory action.
(28) “Public benefit corporation” means a domestic corporation which is required to be
a public benefit corporation pursuant to section 17.05 of this title or is formed as a public benefit corporation pursuant to chapter 2 of this title.
(29) “Record date” means the date established under chapter 6 or 7 of this title on which
a corporation determines the identity of its members for the purposes of this title.
(30) “Secretary” means the corporate officer to whom the board of directors has delegated
responsibility under subsection 8.40(b) of this title for custody of the minutes of the directors’ and members’ meetings and for authenticating
the records of the corporation.
(31) “State,” when referring to a part of the United States, includes a state and commonwealth
(and their agencies and governmental subdivisions) and a territory, and insular possession
(and their agencies and governmental subdivisions) of the United States.
(32) “United States” includes district, authority, bureau, commission, department, and
any other agency of the United States.
(33) “Vote” includes authorization by written ballot and written consent.
(34) “Voting power” means the total number of votes entitled to be cast for the election
of directors at the time the determination of voting power is made, excluding a vote
which is contingent upon the happening of a condition or event that has not occurred
at the time. Where a class is entitled to vote as a class for directors, the determination
of voting power of the class shall be based on the percentage of the number of directors
the class is entitled to elect out of the total number of authorized directors.
(35) “Electronic transmission” or “electronically transmitted” means a process of communication
not directly involving the physical transfer of paper that is suitable for the retention,
retrieval, and reproduction of information by the recipient.
(36) “Meeting” means any structured communications conducted by participants in person
or through the use of an electronic or telecommunications medium permitting simultaneous
or sequentially structured communications.
(37) “Sign” or “signature” includes any manual, facsimile, conformed, or electronic signature. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997; amended 2009, No. 78 (Adj. Sess.), § 31, eff. April 15, 2010; 2013, No. 96 (Adj. Sess.), § 43.)
§ 1.41. Notice
(a) Notice under this title must be in writing unless oral notice is authorized in the
bylaws of the corporation and is reasonable under the circumstances.
(b) Notice may be communicated in person; by telephone, voice mail, telegraph, teletype,
facsimile, or other form of wire, wireless, or electronic communication; or by mail
or private carrier, or other method of delivery. If these forms of personal notice
are 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.
(c) Notice to members. Written notice by a domestic or foreign corporation to its members, if in a comprehensible
form, is effective when:
(1) mailed first class postpaid and correctly addressed to the member’s address as shown
in the corporation’s current record of member’s; or
(2) electronically transmitted to the member in a manner authorized by the member.
(d) Notice to corporations. Written notice to a domestic or foreign corporation (authorized to transact business
in this State) may be addressed to:
(1) its registered agent at its registered office;
(2) the corporation or its secretary at its principal office shown in its most recent
biennial report; or
(3) in the case of a foreign corporation that has not yet delivered a biennial report,
the corporation or its secretary at its principal office shown in its application
for a certificate of authority.
(e) Except as provided in subsection (c) of this section, written notice, if in a comprehensible
form, is effective at the earliest of the following:
(1) when received;
(2) five days after its deposit in the U.S. mail, as evidenced by the postmark, if mailed
postpaid and correctly addressed;
(3) 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.
(f) Oral notice is effective when communicated if communicated in a comprehensible manner.
(g) If this title 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 title, those requirements
govern. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997; amended 2009, No. 78 (Adj. Sess.), § 32, eff. April 15, 2010.)
§ 1.42. Judicial relief
(a) If for any reason it is impractical or impossible for any corporation to call or conduct
a meeting of its members, delegates, or directors, or otherwise obtain their consent,
in the manner prescribed by its articles, bylaws, or this title, then upon petition
of a director, officer, delegate, member, or the Attorney General, the Superior Court
may order that such a meeting be called or that a written ballot or other form of
obtaining the vote of members, delegates, or directors be authorized, in such a manner
as the court finds fair and equitable under the circumstances.
(b) The court shall, in an order issued pursuant to this section, provide for a method
of notice reasonably designed to give actual notice to all persons who would be entitled
to notice of a meeting held pursuant to the articles, bylaws, and this title, whether
or not the method results in actual notice to all such persons or conforms to the
notice requirements that would otherwise apply. In a proceeding under this section
the court may determine who the members or directors are.
(c) The order issued pursuant to this section may dispense with any requirement relating
to the holding of or voting at meetings or obtaining votes, including any requirement
as to quorums or as to the number or percentage of votes needed for approval, that
would otherwise be imposed by the articles, bylaws, or this title.
(d) Whenever practical, any order issued pursuant to this section shall limit the subject
matter of meetings or other forms of consent authorized to items, including amendments
to the articles or bylaws, the resolution of which will or may enable the corporation
to continue managing its affairs without further resort to this section; provided,
however, that an order under this section may also authorize the obtaining of whatever
votes and approvals are necessary for the dissolution, merger, or sale of assets.
(e) Any meeting or other method of obtaining the vote of members, delegates, or directors
conducted pursuant to an order issued under this section, and which complies with
all the provisions of such order, is for all purposes a valid meeting or vote, as
the case may be, and shall have the same force and effect as if it complied with every
requirement imposed by the articles, bylaws, and this title. (Added 1995, No. 179 (Adj. Sess.), § 1, eff. Jan. 1, 1997.)