Chapter 371 Oregon Laws 1999

Session Law

AN ACT

SB 938

Relating to proxy voting; creating new provisions; and amending ORS 60.001, 60.231 and 60.237.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 60.231 is amended to read:

60.231. (1) A shareholder may vote shares in person or by proxy.

(2) A shareholder may [appoint a proxy to vote or otherwise act for the shareholder by signing an appointment form, either personally or by the shareholder's attorney-in-fact.] 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 transmit or authorize the transmission of an electronic submission. The electronic submission:

(A) May be transmitted by any electronic means, including data and voice telephonic communications and computer network;

(B) 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 submission; and

(C) Must either contain or be accompanied by information from which it can be determined that the electronic submission was transmitted by or authorized by the shareholder.

(c) Any other method allowed by law.

(3) A copy, facsimile telecommunication or other reliable reproduction of the writing or electronic submission created under subsection (2)(a) or (b) of this section may be used instead of the original writing or electronic submission for all purposes for which the original writing or electronic submission may be used if the copy, facsimile telecommunication or other reproduction is a complete copy of the entire original writing or electronic submission.

[(3)] (4) An [appointment] authorization of a proxy is effective when received by the secretary or other officer or agent authorized to tabulate votes. An [appointment] authorization is valid for 11 months unless a longer period is expressly provided in the [appointment] authorization form.

[(4)] (5) An [appointment] authorization of a proxy is revocable by the shareholder unless the [appointment form] authorization conspicuously states that it is irrevocable and the [appointment] authorization is coupled with an interest. [Appointments] Authorizations coupled with an interest include the [appointment] authorization of:

(a) A pledgee;

(b) A person who purchased or agreed to purchase the shares;

(d) An employee of the corporation whose employment contract requires the [appointment] authorization; or

(e) A party to a voting agreement created under ORS 60.257.

[(5)] (6) The death or incapacity of the shareholder appointing a proxy does not affect the right of the corporation to accept the proxy's authority unless notice of the death or incapacity is received by the secretary or other officer or agent authorized to tabulate votes before the proxy exercises the proxy's authority under the [appointment] authorization.

[(6)] (7) An [appointment] authorization made irrevocable under subsection [(4)] (5) of this section is revoked when the interest with which it is coupled is extinguished.

[(7)] (8) A transferee for value of shares subject to an irrevocable [appointment] authorization may revoke the [appointment] authorization if the transferee did not know of its existence when the transferee acquired the shares and the existence of the irrevocable [appointment] authorization was not noted conspicuously on the certificate representing the shares or on the information statement for shares without certificates.

[(8)] (9) Subject to ORS 60.237 and to any express limitation on the proxy's authority appearing on the face of the [appointment] authorization form, a corporation is entitled to accept the proxy's vote or other action as that of the shareholder making the [appointment] authorization.

SECTION 2. ORS 60.001 is amended to read:

60.001. 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 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) "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.

(7) "Employee" includes an officer but not a director. A director may accept duties that make the director also an employee.

(8) "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.

(9) "Foreign corporation" means a corporation for profit incorporated under a law other than the law of this state.

(10) "Governmental subdivision" includes an authority, county, district and municipality.

(11) "Includes" denotes a partial definition.

(12) "Individual" means a natural person.

(13) "Means" denotes an exhaustive definition.

(14) "Office," when used to refer to the administrative unit directed by the Secretary of State, means the office of the Secretary of State.

(15) "Person" includes individual and entity.

(16) "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.

(17) "Proceeding" includes civil, criminal, administrative and investigatory action.

(18)(a) "Proxy" means a written authorization signed or an electronic transmission authorized by a shareholder or the shareholder's attorney in fact giving another person or persons power to vote with respect to the shares of the shareholder.

(b) As used in this subsection, "signed" means the placing of the shareholder's name or other authorization on the proxy, whether by manual signature, typewriting, telegraphic or electronic transmission or otherwise, by the shareholder or the shareholder's attorney in fact. A proxy may be transmitted by an oral telephonic communication if it is submitted with information from which it may be determined that the proxy was authorized by the shareholder or the shareholder's attorney in fact.

[(18)] (19) "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.

[(19)] (20) "Share" means the units into which the proprietary interest in a corporation are divided.

[(20)] (21) "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.

[(21)] (22) "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.

[(22)] (23) "Subscriber" means a person who subscribes for shares in a corporation, whether before or after incorporation.

[(23)] (24) "United States" includes a district, authority, bureau, commission, department and any other agency of the United States.

[(24)] (25) "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.

SECTION 3. ORS 60.237 is amended to read:

60.237. (1) If the name signed on a vote, consent, waiver or proxy [appointment] 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 [appointment] authorization and give it effect as the act of the shareholder.

(2) If the name signed on a vote, consent, waiver or proxy [appointment] 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 [appointment] 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 [appointment] 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 [appointment] 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 [appointment] 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 [appointment] 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 [appointment] 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 [appointment] authorization under this section is valid unless a court of competent jurisdiction determines otherwise.

SECTION 4. The amendments to ORS 60.231, 60.001 and 60.237 by sections 1 to 3 of this 1999 Act apply to authorizations to act as a proxy made on or after the effective date of this 1999 Act.

Approved by the Governor June 28, 1999

Filed in the office of Secretary of State June 29, 1999

Effective date October 23, 1999

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