[Rev. 2/10/2015 4:03:35
PM--2014R2]
CHAPTER 78 - PRIVATE CORPORATIONS
GENERAL PROVISIONS
NRS 78.010 Definitions;
construction.
NRS 78.015 Applicability
of chapter; effect on corporations existing before April 1, 1925.
NRS 78.020 Limitations
on incorporation under chapter; compliance with other laws.
NRS 78.025 Reserved
power of State to amend or repeal chapter; chapter part of corporation’s
charter.
NRS 78.026 Form
required for filing of records.
NRS 78.027 Corporate
records: Microfilming; imaging; return.
NRS 78.028 Filing
of records written in language other than English.
NRS 78.0285 Secretary
of State authorized to adopt certain regulations to allow corporation to carry
out powers and duties through most recent technology.
NRS 78.029 Procedure
to submit replacement page to Secretary of State before actual filing of
record.
NRS 78.0295 Correction
of inaccurate or defective record filed with the Secretary of State;
cancellation of filings.
NRS 78.0297 Corporate
records: Manner of storage; conversion of electronic records into clear and
legible paper form; admissibility in evidence of electronic records.
NRS 78.0298 Records
or signatures maintained by corporation.
FORMATION
NRS 78.030 Filing
requirements; prohibition against establishment of corporation for certain
illegal purposes.
NRS 78.035 Articles
of incorporation: Required provisions.
NRS 78.037 Articles
of incorporation: Optional provisions.
NRS 78.039 Name
of corporation: Distinguishable name required; availability of name of revoked,
merged or otherwise terminated corporation; regulations.
NRS 78.040 Name
of corporation: Reservation; injunctive relief.
NRS 78.045 Articles
of incorporation: Approval or certification required before filing of certain
articles or amendments.
NRS 78.047 Penalty
for purporting to do business as corporation without filing articles of
incorporation; enforcement; regulations.
NRS 78.050 Commencement
of corporate existence.
NRS 78.055 Acceptable
evidence of incorporation.
POWERS
NRS 78.060 General
powers.
NRS 78.065 Adoption
and use of corporate seal or stamp.
NRS 78.070 Specific
powers.
NRS 78.075 Railroad
companies: Powers.
NRS 78.080 Railroad
companies: Rights-of-way granted by the State, counties and municipalities;
limitations; reversion on abandonment; duties of companies.
NRS 78.085 Railroad
companies: Filing and recording of certified maps and profiles.
REGISTERED OFFICE AND REGISTERED AGENT
NRS 78.090 Registered
agent required; address of registered office; powers of bank or corporation who
is registered agent; penalty for noncompliance; service upon and delivery to
registered agent in lieu of corporation.
NRS 78.097 Resignation
of registered agent or termination of registration of commercial registered
agent.
NRS 78.105 Maintenance
of records at registered office; inspection and copying of records; civil
liability; penalties.
NRS 78.107 Denial
of request for inspection of records; defense to action for penalties or
damages; authority of court to compel production of records.
DIRECTORS AND OFFICERS
NRS 78.115 Board
of directors: Number and qualifications.
NRS 78.120 Board
of directors: General powers.
NRS 78.125 Committees
of board of directors: Designation; powers; membership.
NRS 78.130 Officers
of corporation: Selection; qualifications; terms; powers and duties; filling of
vacancies.
NRS 78.135 Authority
of directors and representatives of corporation.
NRS 78.138 Directors
and officers: Exercise of powers; performance of duties; presumptions and
considerations; liability to corporation and stockholders.
NRS 78.139 Directors
and officers: Duties, presumptions and powers when confronted with change or
potential change in control of corporation.
NRS 78.140 Restrictions
on transactions involving interested directors or officers; compensation of
directors.
ANNUAL LIST AND OTHER REQUIREMENTS; DEFAULTING CORPORATIONS
NRS 78.150 Filing
requirements; fees; powers and duties of Secretary of State; regulations.
NRS 78.152 List
or statement to be maintained at registered office or principal place of
business; requirement to assist in criminal investigation; failure to comply;
regulations.
NRS 78.153 Additional
filing requirements for certain corporations: Criteria; statement; fees.
NRS 78.155 Certificate
of authorization to transact business.
NRS 78.170 Defaulting
corporations: Identification; reinstatement of corporation which is
unit-owners’ association; penalty.
NRS 78.175 Defaulting
corporations: Duties of Secretary of State; revocation of charter and
forfeiture of right to transact business; distribution of assets.
NRS 78.180 Defaulting
corporations: Conditions and procedure for reinstatement.
NRS 78.185 Defaulting
corporations: Reinstatement under old or new name; regulations.
STOCK AND OTHER SECURITIES; DISTRIBUTIONS
NRS 78.191 “Distribution”
defined.
NRS 78.195 Issuance
of more than one class or series of stock; rights of stockholders.
NRS 78.1955 Establishment
of matters regarding class or series of stock by resolution of board of
directors.
NRS 78.196 Required
and authorized classes or series of stock; shares called for redemption.
NRS 78.197 Rights
of persons holding obligations of corporation.
NRS 78.200 Rights
or options to purchase stock.
NRS 78.205 Fractions
of shares: Issuance; alternatives to issuance.
NRS 78.2055 Decrease
in number of issued and outstanding shares of class or series: Resolution by
board of directors; approval by stockholders; rights of stockholders.
NRS 78.207 Change
in number of authorized shares of class or series: Resolution by board of
directors; approval by stockholders; rights of stockholders.
NRS 78.209 Change
in number of authorized shares of class or series: Filing and effectiveness of
certificate of change; amendment of articles of incorporation.
NRS 78.211 Consideration
for shares: Authority of board of directors; effect of receipt; corporate
action pending receipt in future.
NRS 78.215 Issuance
of shares for consideration or as share dividend.
NRS 78.220 Subscriptions
for corporate shares: Payment; default; irrevocability.
NRS 78.225 Stockholder’s
liability: No individual liability except for payment for which shares were
authorized to be issued or which was specified in subscription agreement.
NRS 78.230 Liability
of holder of stock as collateral security; liability of executors,
administrators, guardians and trustees.
NRS 78.235 Stock
certificates: Validation; facsimile signatures; uncertificated shares and
informational statements; replacement.
NRS 78.240 Shares
of stock are personal property; transfers.
NRS 78.242 Restrictions
on transfer of stock and on amount of stock owned by person or group of
persons.
NRS 78.245 Corporate
stocks, bonds and securities not taxed when owned by nonresidents or foreign
corporations.
NRS 78.250 Cancellation
of outstanding certificates or change in informational statements: Issuance of
new certificates or statements; order for surrender of certificates; penalties
for failure to comply.
NRS 78.257 Right
of stockholders to inspect, copy and audit financial records; exceptions; civil
and criminal liability; penalty.
NRS 78.265 Preemptive
rights of stockholders in corporations organized before October 1, 1991.
NRS 78.267 Preemptive
rights of stockholders in corporations organized on or after October 1, 1991.
NRS 78.275 Assessments
on stock: Levy and collection; sale after default in payment.
NRS 78.280 Purchase
by corporation of its own stock at assessment sale when no other available
purchaser.
NRS 78.283 Treasury
shares: Definition; limitations; retirement and disposal.
NRS 78.288 Distributions
to stockholders.
NRS 78.300 Liability
of directors for unlawful distributions.
NRS 78.307 “Investment
company” and “open-end investment company” defined; redemption of shares by
open-end investment company.
MEETINGS, ELECTIONS, VOTING AND NOTICE
NRS 78.310 Stockholders’
and directors’ meetings: Location; authority to call.
NRS 78.315 Directors’
meetings: Quorum; consent for actions taken without meeting; alternative means
for participating at meeting.
NRS 78.320 Stockholders’
meetings: Quorum; consent for actions taken without meeting; alternative means
for participating at meeting.
NRS 78.325 Actions
at meetings not regularly called: Ratification and approval.
NRS 78.330 Directors:
Election; terms; classification; voting power.
NRS 78.335 Directors:
Removal; filling of vacancies.
NRS 78.340 Failure
to hold election of directors on regular day does not dissolve corporation.
NRS 78.345 Election
of directors by order of court upon failure of regular election.
NRS 78.347 Application
by stockholder for order of court appointing custodian or receiver;
requirements of custodian; authority of custodian; adoption of regulations by
Secretary of State.
NRS 78.350 Voting
rights of stockholders; determination of stockholders entitled to notice of and
to vote at meeting.
NRS 78.352 Voting
rights: Persons holding stock in fiduciary capacity; persons whose stock is
pledged; joint owners of stock.
NRS 78.355 Stockholders’
proxies.
NRS 78.360 Cumulative
voting.
NRS 78.365 Voting
trusts.
NRS 78.370 Notice
to stockholders.
NRS 78.375 Waiver
of notice or other communication.
ACQUISITION OF CONTROLLING INTEREST
NRS 78.378 Applicability;
imposition of stricter requirements; protection of corporation and its
stockholders.
NRS 78.3781 Definitions.
NRS 78.3782 “Acquiring
person” defined.
NRS 78.3783 “Acquisition”
defined.
NRS 78.3784 “Control
shares” defined.
NRS 78.3785 “Controlling
interest” defined.
NRS 78.3786 “Fair
value” defined.
NRS 78.3787 “Interested
stockholder” defined.
NRS 78.3788 “Issuing
corporation” defined.
NRS 78.3789 Delivery
of offeror’s statement by acquiring person; contents of statement.
NRS 78.379 Voting
rights of acquiring person; meeting of stockholders; statements to accompany
notice of meeting.
NRS 78.3791 Approval
of voting rights of acquiring person.
NRS 78.3792 Redemption
of control shares.
NRS 78.3793 Rights
of dissenting stockholders.
AMENDMENT AND RESTATEMENT OF
ARTICLES OF INCORPORATION
NRS 78.380 Amendment
of articles before issuance of voting stock.
NRS 78.385 Scope
of amendments.
NRS 78.390 Amendment
of articles after issuance of stock: Procedure.
NRS 78.403 Restatement
of articles.
COMBINATIONS WITH INTERESTED STOCKHOLDERS
NRS 78.411 Definitions.
NRS 78.412 “Affiliate”
defined.
NRS 78.413 “Associate”
defined.
NRS 78.414 “Beneficial
owner” defined.
NRS 78.416 “Combination”
defined.
NRS 78.417 “Common
shares” defined.
NRS 78.418 “Control,”
“controlling,” “controlled by” and “under common control with” defined;
presumption of control.
NRS 78.421 “Date
of announcement” defined.
NRS 78.422 “Date
of consummation” defined.
NRS 78.423 “Interested
stockholder” defined.
NRS 78.424 “Market
value” defined.
NRS 78.426 “Preferred
shares” defined.
NRS 78.4265 “Publicly
traded corporation” defined.
NRS 78.427 “Resident
domestic corporation” defined.
NRS 78.428 “Securities
Exchange Act” defined.
NRS 78.429 “Share”
defined.
NRS 78.431 “Subsidiary”
defined.
NRS 78.432 “Voting
shares” defined.
NRS 78.433 Applicability:
Generally.
NRS 78.434 Applicability:
Election not to be governed by provisions.
NRS 78.436 Applicability:
Combination with inadvertent interested stockholder.
NRS 78.437 Applicability:
Combination with interested stockholder as of certain date.
NRS 78.438 Combination
prohibited within 2 years after stockholder becomes interested; exception;
action on proposal.
NRS 78.439 Authorized
combinations: General requirements.
NRS 78.441 Authorized
combinations: Consideration to be received by disinterested holders of common
shares.
NRS 78.442 Authorized
combinations: Consideration to be received by disinterested holders of class or
series of shares other than common shares.
NRS 78.443 Authorized
combinations: Required form and distribution of consideration.
NRS 78.444 Authorized
combinations: Restrictions on beneficial ownership of additional voting shares
by interested stockholder.
SALE OF ASSETS; DISSOLUTION AND WINDING UP
NRS 78.565 Sale,
lease or exchange of assets: Authority; vote of stockholders.
NRS 78.570 Sale
of property and franchise under decree of court.
NRS 78.575 Procedure
for dissolution before payment of capital and beginning of business.
NRS 78.580 Procedure
for dissolution after beginning of business.
NRS 78.585 Continuation
of corporation after dissolution for winding up and liquidating its business
and affairs; limitation on actions by or against dissolved corporation.
NRS 78.590 Trustees
of dissolved corporation: Powers of directors.
NRS 78.597 Liability
of stockholders of dissolved corporation.
NRS 78.600 Trustees
or receivers for dissolved corporations: Appointment; powers.
NRS 78.605 Jurisdiction
of district court.
NRS 78.610 Duties
of trustees or receivers; payment and distribution to creditors and
stockholders.
NRS 78.615 Abatement
of pending actions; substitution of dissolution trustees or receivers.
NRS 78.620 Dissolution
or forfeiture of charter by decree of court; filing.
INSOLVENCY; RECEIVERS AND TRUSTEES
NRS 78.622 Reorganization
under federal law: Powers of corporation.
NRS 78.630 Application
of creditors or stockholders of insolvent corporation for injunction and
appointment of receiver or trustee; hearing.
NRS 78.635 Appointment
of receiver or trustee of insolvent corporation: Powers.
NRS 78.640 Property
and privileges of insolvent corporation vest in appointed receiver.
NRS 78.645 Corporation
may resume control upon payment of debts and receipt of capital to conduct
business; order of court dissolving corporation and forfeiting charter.
NRS 78.650 Stockholders’
application for injunction and appointment of receiver when corporation
mismanaged.
NRS 78.655 Reorganization
of corporation by majority of stockholders during receivership.
NRS 78.660 Powers
of district court.
NRS 78.665 Receiver
to take possession of corporate assets upon court order.
NRS 78.670 Inventory,
list of debts and reports by receiver.
NRS 78.675 Creditors’
proofs of claims; when participation barred; notice.
NRS 78.680 Creditors’
claims to be in writing under oath; examination of claimants.
NRS 78.685 Action
on creditors’ claims; appeal of disallowed claims.
NRS 78.695 Substitution
of receiver as party; abatement of actions.
NRS 78.700 Sales
of encumbered or deteriorating property.
NRS 78.705 Compensation,
costs and expenses of receiver.
NRS 78.710 Distribution
of money to creditors and stockholders.
NRS 78.715 Acts
of majority of receivers effectual; removal and vacancies.
NRS 78.720 Employees’
liens for wages when corporation insolvent.
REINCORPORATION; RENEWAL AND REVIVAL OF CHARTERS
NRS 78.725 Domestic
corporations in existence on April 1, 1925, may reincorporate under this
chapter.
NRS 78.730 Renewal
or revival: Procedure; fee; certificate as evidence.
NRS 78.740 Renewal
or revival: Status of corporation.
SUITS AGAINST CORPORATIONS, DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS AND STOCKHOLDERS
NRS 78.745 Action
against stockholder for unpaid subscriptions; limitation of action.
NRS 78.746 Action
against stockholder by judgment creditor; limitations.
NRS 78.747 Liability
of stockholder, director or officer for debt or liability of corporation.
NRS 78.750 Service
of process on corporations.
NRS 78.7502 Discretionary
and mandatory indemnification of officers, directors, employees and agents:
General provisions.
NRS 78.751 Authorization
required for discretionary indemnification; advancement of expenses; other
rights to indemnification and advancement of expenses.
NRS 78.752 Insurance
and other financial arrangements against liability of directors, officers,
employees and agents.
SECRETARY OF STATE: DUTIES AND FEES
NRS 78.755 Duties:
Collection of fees; employment of new technology to aid in performance.
NRS 78.760 Filing
fees: Articles of incorporation.
NRS 78.765 Filing
fees: Certificate changing number of authorized shares; certificate of
amendment to articles; certificate of correction; certificate of designation;
certificate of termination; certificate of withdrawal.
NRS 78.767 Filing
fees: Certificates of restated articles of incorporation.
NRS 78.780 Filing
fee: Certificate of dissolution.
NRS 78.785 Miscellaneous
fees.
MISCELLANEOUS PROVISIONS
NRS 78.795 Registration
of natural person or corporation willing to serve as registered agent for
corporation, limited-liability company or limited partnership. [Repealed.]
_________
GENERAL PROVISIONS
NRS 78.010 Definitions; construction.
1. As used in this chapter:
(a) “Approval” and “vote” as describing action by
the directors or stockholders mean the vote of directors in person or by
written consent or of stockholders in person, by proxy or by written consent.
(b) “Articles,” “articles of incorporation” and
“certificate of incorporation” are synonymous terms and, unless the context
otherwise requires, include all certificates filed pursuant to NRS 78.030, 78.180, 78.185, 78.1955, 78.209, 78.380, 78.385, 78.390, 78.725 and 78.730 and any
articles of merger, conversion, exchange or domestication filed pursuant to NRS 92A.200 to 92A.240, inclusive, or 92A.270. Unless the context otherwise
requires, these terms include restated articles and certificates of
incorporation.
(c) “Directors” and “trustees” are synonymous
terms.
(d) “Entity” means a foreign or domestic:
(1) Corporation, whether or not for
profit;
(2) Limited-liability company;
(3) Limited partnership; or
(4) Business trust.
(e) “Principal office” means the office, in or
out of this State, where the principal executive offices of a domestic or
foreign corporation are located.
(f) “Receiver” includes receivers and trustees
appointed by a court as provided in this chapter or in chapter 32 of NRS.
(g) “Registered agent” has the meaning ascribed
to it in NRS 77.230.
(h) “Registered office” means the office
maintained at the street address of the registered agent.
(i) “Stockholder of record” means a person whose
name appears on the stock ledger of the corporation.
2. General terms and powers given in this
chapter are not restricted by the use of special terms, or by any grant of
special powers contained in this chapter.
[Part 47:177:1925; NCL § 1646] + [83:177:1925; A
1931, 415; 1931 NCL § 1682]—(NRS A 1965, 216; 1977, 184; 1989, 871; 1991, 1207; 1993, 944; 1995, 2093; 1997, 695; 1999, 1576; 2001, 101, 1358, 2722, 3199; 2003, 48, 3077; 2007, 2639; 2011, 2769)
NRS 78.015 Applicability of chapter; effect on corporations existing before
April 1, 1925.
1. The provisions of this chapter apply
to:
(a) Corporations organized in this State on or
after October 1, 1991, except:
(1) Where the provisions of chapters 80, 84
and 89 of NRS are inconsistent with the
provisions of this chapter;
(2) Corporations expressly excluded by the
provisions of this chapter; and
(3) Corporations governed by the
provisions of NRS 81.170 to 81.540, inclusive, and chapter 82 of NRS.
(b) Corporations whose charters are renewed or
revived in the manner provided in NRS 78.730.
(c) Corporations organized and still existing
under this chapter before October 1, 1991, or any prior act or any amendment
thereto.
(d) Close corporations, unless otherwise provided
in chapter 78A of NRS.
(e) All insurance companies, mutual fire
insurance companies, surety companies, express companies, railroad companies,
and public utility companies now existing and formed before October 1, 1991,
under any other act or law of this State, subject to any special provisions
concerning any class of corporations inconsistent with the provisions of this
chapter, in which case the special provisions continue to apply.
2. Neither the existence of corporations
formed or existing before April 1, 1925, nor any liability, cause of action,
right, privilege or immunity validly existing in favor of or against any such
corporation on April 1, 1925, are affected, abridged, taken away or impaired by
this chapter, or by any change in the requirements for the formation of
corporations provided by this chapter, nor by the amendment or repeal of any
laws under which such prior existing corporations were formed or created.
[1:177:1925; A 1935, 146; 1937, 4; 1945, 196; 1943
NCL § 1600]—(NRS A 1989, 948; 1991, 1207; 1995, 2094)
NRS 78.020 Limitations on incorporation under chapter; compliance with
other laws.
1. Insurance companies, mutual fire
insurance companies, surety companies, express companies and railroad companies
may be formed under this chapter, but such a corporation may not:
(a) Transact any such business within this State
until it has first complied with all laws concerning or affecting the right to
engage in such business.
(b) Infringe the laws of any other state or
country in which it may intend to engage in business, by so incorporating under
this chapter.
2. No trust company, savings and loan
association, thrift company or corporation organized for the purpose of
conducting a banking business may be organized under this chapter.
[Part 4:177:1925; A 1929, 413; 1931, 415; 1949, 158;
1955, 402]—(NRS A 1975, 1; 1983, 117; 1997, 1014)
NRS 78.025 Reserved power of State to amend or repeal chapter; chapter part
of corporation’s charter. This
chapter may be amended or repealed at the pleasure of the Legislature, and
every corporation created under this chapter, or availing itself of any of the
provisions of this chapter, and all stockholders of such corporation shall be
bound by such amendment; but such amendment or repeal shall not take away or
impair any remedy against any corporation, or its officers, for any liability
which shall have been previously incurred. This chapter, and all amendments
thereof, shall be a part of the charter of every corporation, except so far as
the same are inapplicable and inappropriate to the objects of the corporation.
[2:177:1925; NCL § 1601]
NRS 78.026 Form required for filing of records.
1. Each record filed with the Secretary of
State pursuant to this chapter must be on or accompanied by a form prescribed
by the Secretary of State.
2. The Secretary of State may refuse to
file a record which does not comply with subsection 1 or which does not contain
all of the information required by statute for filing the record.
3. If the provisions of the form
prescribed by the Secretary of State conflict with the provisions of any record
that is submitted for filing with the form:
(a) The provisions of the form control for all
purposes with respect to the information that is required by statute to appear
in the record in order for the record to be filed; and
(b) Unless otherwise provided in the record, the
provisions of the record control in every other situation.
4. The Secretary of State may by
regulation provide for the electronic filing of records with the Office of the
Secretary of State.
(Added to NRS by 2003, 20th
Special Session, 26)
NRS 78.027 Corporate records: Microfilming; imaging; return. The Secretary of State may microfilm or image any
record which is filed in the Office of the Secretary of State with respect to a
corporation pursuant to this chapter and may return the original record to the
corporation.
(Added to NRS by 1977, 572; A 2003, 3077; 2003, 20th
Special Session, 27)
NRS 78.028 Filing of records written in language other than English. No record which is written in a language other
than English may be filed or submitted for filing in the Office of the
Secretary of State pursuant to the provisions of this chapter unless it is
accompanied by a verified translation of that record into the English language.
(Added to NRS by 1995, 1112; A 2003, 3077)
NRS 78.0285 Secretary of State authorized to adopt certain regulations to
allow corporation to carry out powers and duties through most recent
technology. The Secretary of State
may adopt regulations to define, for the purposes of certain provisions of this
chapter, the terms “meeting,” “writing,” “written” and other terms to allow a
corporation or other entity which is subject to the provisions of this chapter
to carry out its powers and duties as prescribed by this chapter through the
use of the most recent technology available including, without limitation, the
use of electronic communications, videoconferencing and telecommunications.
(Added to NRS by 2011, 775)
NRS 78.029 Procedure to submit replacement page to Secretary of State
before actual filing of record. Before
the issuance of stock an incorporator, and after the issuance of stock an
officer, of a corporation may authorize the Secretary of State in writing to
replace any page of a record submitted for filing on an expedited basis, before
the actual filing, and to accept the page as if it were part of the original
record.
(Added to NRS by 1997, 2807; A 1999, 1577; 2003, 3078)
NRS 78.0295 Correction of inaccurate or defective record filed with the
Secretary of State; cancellation of filings.
1. A corporation may correct a record
filed in the Office of the Secretary of State with respect to the corporation
if the record contains an inaccurate description of a corporate action or if
the record was defectively signed, attested, sealed, verified or acknowledged.
2. To correct a record, the corporation
must:
(a) Prepare a certificate of correction which:
(1) States the name of the corporation;
(2) Describes the record, including,
without limitation, its filing date;
(3) Specifies the inaccuracy or defect;
(4) Sets forth the inaccurate or defective
portion of the record in an accurate or corrected form; and
(5) Is signed by an officer of the
corporation or, if no stock has been issued by the corporation, by the
incorporator or a director of the corporation, or by some other person
specifically authorized by the corporation to sign the certificate.
(b) Deliver the certificate to the Secretary of
State for filing.
(c) Pay a filing fee of $175 to the Secretary of
State.
3. A certificate of correction is
effective on the effective date of the record it corrects except as to persons
relying on the uncorrected record and adversely affected by the correction. As
to those persons, the certificate is effective when filed.
4. If a corporation has made a filing with
the Secretary of State and the Secretary of State has not processed the filing
and placed the filing into the public record, the corporation may cancel the
filing by:
(a) Filing a statement of cancellation with the
Secretary of State; and
(b) Paying the required fee pursuant to
subsection 7 of NRS 78.785.
(Added to NRS by 1997, 693; A 2001, 1358, 3170, 3199; 2003, 3078; 2003, 20th
Special Session, 27; 2009, 2826;
2013, 838)
NRS 78.0297 Corporate records: Manner of storage; conversion of electronic
records into clear and legible paper form; admissibility in evidence of
electronic records.
1. Except as otherwise required by federal
or state law, any records maintained by a corporation in its regular course of
business, including, without limitation, its stock ledger, minute books, books
of account and financial records, may be kept on, or by means of, any
information processing system or other information storage device or medium, or
in the form of an electronic record.
2. A corporation shall convert within a
reasonable time any electronic records into clear and legible paper form upon
the request of any person entitled to inspect the records maintained by the
corporation pursuant to any provision of this chapter.
3. A clear and legible paper form produced
from electronic records is admissible in evidence and accepted for all other
purposes to the same extent as an original paper record with the same
information provided that the paper form portrays the record accurately.
(Added to NRS by 2003, 3076; A 2011, 2770)
NRS 78.0298 Records or signatures maintained by corporation. No record or signature maintained by a
corporation is required to be created, generated, sent, communicated, received,
stored or otherwise processed or used by electronic means or in electronic
form.
(Added to NRS by 2003, 3076; A 2011, 2771)
FORMATION
NRS 78.030 Filing requirements; prohibition against establishment of
corporation for certain illegal purposes.
1. One or more persons may establish a
corporation for the transaction of any lawful business, or to promote or
conduct any legitimate object or purpose, pursuant and subject to the
requirements of this chapter, by signing and filing in the Office of the
Secretary of State articles of incorporation. A person shall not establish a
corporation for any illegal purpose or with the fraudulent intent to conceal
any business activity, or lack thereof, from another person or a governmental
agency.
2. The articles of incorporation must be
as provided in NRS 78.035, and the Secretary of
State shall require them to be in the form prescribed. If any articles are
defective in this respect, the Secretary of State shall return them for
correction.
[3:177:1925; A 1931, 415; 1931 NCL § 1602]—(NRS A
1963, 70; 1979,
394; 1981,
1888; 1989,
948; 1991,
1208; 1995,
2095; 1999,
1577; 2003,
3078; 2007,
2640; 2013,
839)
NRS 78.035 Articles of incorporation: Required provisions. The articles of incorporation must set forth:
1. The name of the corporation. A name
appearing to be that of a natural person and containing a given name or
initials must not be used as a corporate name except with an additional word or
words such as “Incorporated,” “Limited,” “Inc.,” “Ltd.,” “Company,” “Co.,”
“Corporation,” “Corp.,” or other word which identifies it as not being a
natural person.
2. The information required pursuant to NRS 77.310.
3. The number of shares the corporation is
authorized to issue and, if more than one class or series of stock is
authorized, the classes, the series and the number of shares of each class or
series which the corporation is authorized to issue, unless the articles
authorize the board of directors to fix and determine in a resolution the
classes, series and numbers of each class or series as provided in NRS 78.195 and 78.196.
4. The names and addresses, either
residence or business, of the first board of directors or trustees, together
with any desired provisions relative to the right to change the number of
directors as provided in NRS 78.115.
5. The name and address, either residence
or business, of each of the incorporators signing the articles of
incorporation.
[Part 4:177:1925; A 1929, 413; 1931, 415; 1949, 158;
1955, 402]—(NRS A 1957, 75; 1967, 769; 1981, 1888; 1985, 1785; 1987, 81, 574, 1054; 1991, 1208; 1993, 945; 1995, 2095; 1999, 1577; 2003, 3078; 2003, 20th
Special Session, 27; 2007, 2640)
NRS 78.037 Articles of incorporation: Optional provisions. The articles of incorporation may also contain
any provision, not contrary to the laws of this State:
1. For the management of the business and
for the conduct of the affairs of the corporation;
2. Creating, defining, limiting or
regulating the powers of the corporation or the rights, powers or duties of the
directors, the officers or the stockholders, or any class of the stockholders,
or the holders of bonds or other obligations of the corporation; or
3. Governing the distribution or division
of the profits of the corporation.
(Added to NRS by 1987, 80; A 1991, 1210; 1993, 945; 2001, 3171)
NRS 78.039 Name of corporation: Distinguishable name required; availability
of name of revoked, merged or otherwise terminated corporation; regulations.
1. The name proposed for a corporation
must be distinguishable on the records of the Secretary of State from the names
of all other artificial persons formed, organized, registered or qualified
pursuant to the provisions of this title that are on file in the Office of the
Secretary of State and all names that are reserved in the Office of the
Secretary of State pursuant to the provisions of this title. If a proposed name
is not so distinguishable, the Secretary of State shall return the articles of
incorporation containing the proposed name to the incorporator, unless the
written, acknowledged consent of the holder of the name on file or reserved
name to use the same name or the requested similar name accompanies the
articles of incorporation.
2. For the purposes of this section and NRS 78.040, a proposed name is not distinguishable
from a name on file or reserved name solely because one or the other contains
distinctive lettering, a distinctive mark, a trademark or a trade name, or any
combination of these.
3. The name of a corporation whose charter
has been revoked, which has merged and is not the surviving entity or whose
existence has otherwise terminated is available for use by any other artificial
person.
4. The Secretary of State may adopt
regulations that interpret the requirements of this section.
(Added to NRS by 1975, 477; A 1987, 1056; 1991, 1210; 1993, 945; 1997, 2807; 1999, 1578)
NRS 78.040 Name of corporation: Reservation; injunctive relief.
1. The Secretary of State, when requested
so to do, shall reserve, for a period of 90 days, the right to use any name
available under NRS 78.039, for the use of any
proposed corporation. During the period, a name so reserved is not available
for use or reservation by any other artificial person forming, organizing,
registering or qualifying in the Office of the Secretary of State pursuant to
the provisions of this title without the written, acknowledged consent of the
person at whose request the reservation was made.
2. The use by any other artificial person
of a name in violation of subsection 1 or NRS 78.039
may be enjoined, even if the record under which the artificial person is
formed, organized, registered or qualified has been filed by the Secretary of
State.
[4a:177:1925; added 1931, 415; 1931 NCL § 1603.01] +
[4b:177:1925; added 1931, 415; 1931 NCL § 1603.02]—(NRS A 1963, 64; 1979, 395; 1981, 472; 1987, 1056; 1993, 946; 1999, 1578; 2003, 3079)
NRS 78.045 Articles of incorporation: Approval or certification required
before filing of certain articles or amendments.
1. The Secretary of State shall not accept
for filing any articles of incorporation or any certificate of amendment of
articles of incorporation of any corporation formed pursuant to the laws of
this State which provides that the name of the corporation contains the word
“bank” or “trust,” unless:
(a) It appears from the articles or the certificate
of amendment that the corporation proposes to carry on business as a banking or
trust company, exclusively or in connection with its business as a bank,
savings and loan association or thrift company; and
(b) The articles or certificate of amendment is
first approved by the Commissioner of Financial Institutions.
2. The Secretary of State shall not accept
for filing any articles of incorporation or any certificate of amendment of
articles of incorporation of any corporation formed pursuant to the provisions
of this chapter if it appears from the articles or the certificate of amendment
that the business to be carried on by the corporation is subject to supervision
by the Commissioner of Insurance or by the Commissioner of Financial
Institutions, unless the articles or certificate of amendment is approved by
the Commissioner who will supervise the business of the corporation.
3. Except as otherwise provided in
subsection 7, the Secretary of State shall not accept for filing any articles
of incorporation or any certificate of amendment of articles of incorporation
of any corporation formed pursuant to the laws of this State if the name of the
corporation contains the words “engineer,” “engineered,” “engineering,”
“professional engineer,” “registered engineer” or “licensed engineer” unless:
(a) The State Board of Professional Engineers and
Land Surveyors certifies that the principals of the corporation are licensed to
practice engineering pursuant to the laws of this State; or
(b) The State Board of Professional Engineers and
Land Surveyors certifies that the corporation is exempt from the prohibitions
of NRS 625.520.
4. Except as otherwise provided in
subsection 7, the Secretary of State shall not accept for filing any articles
of incorporation or any certificate of amendment of articles of incorporation
of any corporation formed pursuant to the laws of this State if the name of the
corporation contains the words “architect,” “architecture,” “registered
architect,” “licensed architect,” “registered interior designer,” “registered
interior design,” “residential designer,” “registered residential designer,”
“licensed residential designer” or “residential design” unless the State Board
of Architecture, Interior Design and Residential Design certifies that:
(a) The principals of the corporation are holders
of a certificate of registration to practice architecture or residential design
or to practice as a registered interior designer, as applicable, pursuant to
the laws of this State; or
(b) The corporation is qualified to do business
in this State pursuant to NRS 623.349.
5. The Secretary of State shall not accept
for filing any articles of incorporation or any certificate of amendment of
articles of incorporation of any corporation formed pursuant to the laws of
this State which provides that the name of the corporation contains the word
“accountant,” “accounting,” “accountancy,” “auditor” or “auditing” unless the
Nevada State Board of Accountancy certifies that the corporation:
(a) Is registered pursuant to the provisions of chapter 628 of NRS; or
(b) Has filed with the Nevada State Board of
Accountancy under penalty of perjury a written statement that the corporation
is not engaged in the practice of accounting and is not offering to practice
accounting in this State.
6. The Secretary of State shall not accept
for filing any articles of incorporation or any certificate of amendment of
articles of incorporation of any corporation formed or existing pursuant to the
laws of this State which provides that the name of the corporation contains the
words “common-interest community,” “community association,” “master
association,” “unit-owners’ association” or “homeowners’ association” or if it
appears in the articles of incorporation or certificate of amendment that the
purpose of the corporation is to operate as a unit-owners’ association pursuant
to chapter 116 or 116B of NRS unless the Administrator of the
Real Estate Division of the Department of Business and Industry certifies that
the corporation has:
(a) Registered with the Ombudsman for Owners in
Common-Interest Communities and Condominium Hotels pursuant to NRS 116.31158 or 116B.625; and
(b) Paid to the Administrator of the Real Estate
Division the fees required pursuant to NRS
116.31155 or 116B.620.
7. The provisions of subsections 3 and 4
do not apply to any corporation, whose securities are publicly traded and
regulated by the Securities Exchange Act of 1934, which does not engage in the
practice of professional engineering, architecture or residential design or
interior design, as applicable.
8. The Commissioner of Financial
Institutions and the Commissioner of Insurance may approve or disapprove the
articles or amendments referred to them pursuant to the provisions of this
section.
[4.5:177:1925; added 1949, 520; 1943 NCL §
1603.1]—(NRS A 1977,
1056; 1979,
1102; 1983,
467, 1696;
1987, 1873;
1993, 128; 1995, 1112; 1997, 1058; 1999, 1706, 2441; 2001, 111; 2003, 20th
Special Session, 28; 2005, 2623; 2007, 2, 2279)
NRS 78.047 Penalty for purporting to do business as corporation without
filing articles of incorporation; enforcement; regulations.
1. Every person, other than a corporation
organized and existing pursuant to the laws of another state, territory, the
District of Columbia, a possession of the United States or a foreign country,
who is purporting to do business in this State as a corporation and who
willfully fails or neglects to file with the Secretary of State articles of
incorporation is subject to a fine of not less than $1,000 but not more than
$10,000, to be recovered in a court of competent jurisdiction.
2. When the Secretary of State is advised
that a person is subject to the fine described in subsection 1, the Secretary
of State may, as soon as practicable, refer the matter to the district attorney
of the county in which the person’s principal place of business is located or
the Attorney General, or both, for a determination of whether to institute
proceedings to recover the fine. The district attorney of the county in which
the person’s principal place of business is located or the Attorney General may
institute and prosecute the appropriate proceedings to recover the fine. If the
district attorney or the Attorney General prevails in a proceeding to recover
the fine described in subsection 1, the district attorney or the Attorney
General is entitled to recover the costs of the proceeding, including, without
limitation, the cost of any investigation and reasonable attorney’s fees.
3. In the course of an investigation of a
violation of this section, the Secretary of State may require a person to
answer any interrogatory submitted by the Secretary of State that will assist
in the investigation.
4. The Secretary of State may adopt
regulations to administer the provisions of this section.
(Added to NRS by 2009, 1673;
A 2013, 839)
NRS 78.050 Commencement of corporate existence.
1. Upon the filing of the articles of
incorporation pursuant to NRS 78.030 and the
payment of the filing fees, the Secretary of State shall issue to the
corporation a certificate that the articles, containing the required statement
of facts, have been filed. From the date the articles are filed, the
corporation is a body corporate, by the name set forth in the articles of
incorporation, subject to the forfeiture of its charter or dissolution as
provided in this chapter.
2. Neither an incorporator nor a director
designated in the articles of incorporation thereby becomes a subscriber or
stockholder of the corporation.
3. The filing of the articles of
incorporation does not, by itself, constitute commencement of business by the
corporation.
[Part 5:177:1925; NCL § 1604]—(NRS A 1989, 948; 1991, 1211; 1993, 946; 2007, 2641)
NRS 78.055 Acceptable evidence of incorporation. A
copy of any articles of incorporation filed pursuant to this chapter, and
certified by the Secretary of State under the official seal of the Secretary of
State, or, with respect to a corporation organized before October 1, 1991, a
copy of the copy thereof, filed with the county clerk, or microfilmed by the
county clerk, under the county seal, certified by the clerk, must be received
in all courts and places as prima facie evidence of the facts therein stated,
and of the existence and incorporation of the corporation therein named.
[Part 5:177:1925; NCL § 1604]—(NRS A 1963, 70; 1991, 1211)
POWERS
NRS 78.060 General powers.
1. Any corporation organized under the
provisions of this chapter:
(a) Has all the rights, privileges and powers
conferred by this chapter.
(b) Has such rights, privileges and powers as may
be conferred upon corporations by any other existing law.
(c) May at any time exercise those rights,
privileges and powers, when not inconsistent with the provisions of this
chapter, or with the purposes and objects for which the corporation is
organized.
(d) Unless otherwise provided in its articles,
has perpetual existence.
2. Every corporation, by virtue of its
existence as such, is entitled:
(a) To have succession by its corporate name
until dissolved and its affairs are wound up according to law.
(b) To sue and be sued in any court of law or
equity.
(c) To make contracts.
(d) To appoint such officers and agents as the
affairs of the corporation require, and to allow them suitable compensation.
(e) To make bylaws not inconsistent with the
Constitution or laws of the United States, or of this State, for the
management, regulation and government of its affairs and property, the transfer
of its stock, the transaction of its business, and the calling and holding of
meetings of its stockholders.
(f) To wind up and dissolve itself, or be wound
up or dissolved, in the manner mentioned in this chapter.
(g) Unless otherwise provided in the articles, to
engage in any lawful activity.
[Part 8:177:1925; NCL § 1607] + [91:177:1925; NCL §
1690]—(NRS A 1969, 99; 1991, 1211; 2003, 3079)
NRS 78.065 Adoption and use of corporate seal or stamp.
1. Every corporation, by virtue of its
existence as such, shall have power to adopt and use a common seal or stamp,
and alter the same at pleasure.
2. The use of a seal or stamp by a
corporation on any corporate record is not necessary. The corporation may use a
seal or stamp, if it desires, but such use or nonuse must not in any way affect
the legality of the record.
[Part 8:177:1925; NCL § 1607] + [85:177:1925; A 1953,
180]—(NRS A 1967, 102; 1971, 1100; 2003, 3080)
NRS 78.070 Specific powers. Subject
to such limitations, if any, as may be contained in its articles of
incorporation, every corporation has the following powers:
1. To borrow money and contract debts when
necessary for the transaction of its business, or for the exercise of its
corporate rights, privileges or franchises, or for any other lawful purpose of
its incorporation and to issue bonds, promissory notes, bills of exchange,
debentures, and other obligations and evidences of indebtedness, payable at a
specified time or times, or payable upon the happening of a specified event or
events, whether secured by mortgage, pledge or other security, or unsecured,
for money borrowed, or in payment for property purchased or acquired, or for
any other lawful object.
2. To guarantee, purchase, hold, take,
obtain, receive, subscribe for, own, use, dispose of, sell, exchange, lease,
lend, assign, mortgage, pledge, or otherwise acquire, transfer or deal in or
with bonds or obligations of, or shares, securities or interests in or issued
by, any person, government, governmental agency or political subdivision of
government, and to exercise all the rights, powers and privileges of ownership
of such an interest, including the right to vote, if any.
3. To purchase, hold, sell, pledge and
transfer shares of its own stock, and use therefor its property or money.
4. To conduct business, have one or more
offices, and hold, purchase, lease, mortgage, convey and take by devise or
bequest real and personal property in this State, and in any of the several
states, territories, possessions and dependencies of the United States, the
District of Columbia, Puerto Rico and any foreign countries.
5. To do everything necessary and proper
for the accomplishment of the objects enumerated in its articles of
incorporation or necessary or incidental to the protection and benefit of the
corporation, and, in general, to carry on any lawful business necessary or
incidental to the attainment of the objects of the corporation, whether or not the
business is similar in nature to the objects set forth in the articles of
incorporation, except that:
(a) A corporation created under the provisions of
this chapter does not possess the power of issuing bills, notes or other
evidences of debt for circulation of money; and
(b) This chapter does not authorize the formation
of banking corporations to issue or circulate money or currency within this
State, or outside of this State, or at all, except the federal currency, or the
notes of banks authorized under the laws of the United States.
6. To make donations for the public
welfare or for charitable, scientific or educational purposes.
7. To enter into any relationship with
another person in connection with any lawful activities.
8. To renounce in its articles of
incorporation or by action by the board of directors any interest or expectancy
to participate in specified business opportunities or specified classes or
categories of business opportunities that are presented to the corporation or
one or more of its officers, directors or stockholders.
[9:177:1925; A 1931, 415; 1949, 158; 1953, 180]—(NRS
A 1959, 690; 1963, 1146; 1969, 117; 1987, 576; 1991, 1212; 1993, 947; 1997, 696; 2003, 3080; 2007, 2414)
NRS 78.075 Railroad companies: Powers. In
furtherance of and in addition to the powers which railroad companies organized
under this chapter are entitled to exercise, but not in limitation of any of
the powers granted by this chapter, every railroad company may:
1. Cause such examination and surveys for
the proposed railroad to be made as may be necessary to the selection of the
most advantageous route for the railroad, and for such purposes, by their
officers, agents and employees, to enter upon the lands or waters of any
persons, but subject to responsibility for all damages which they do thereto.
2. Receive, hold, take and convey, by deed
or otherwise, as a natural person might or could do, such voluntary grants and
donations of real estate, and other property of every description, as may be
made to it to aid and encourage the construction, maintenance and accommodation
of the railroad.
3. Purchase, and by voluntary grants and
donations receive and take, and by its officers, engineers, surveyors and
agents, enter upon and take possession of, and hold and use, in any manner they
may deem proper, all such lands and real estate, and other property as the
directors may deem necessary and proper for the construction and maintenance of
the railroad, and for the stations, depots and other accommodations and
purposes, deemed necessary to accomplish the object for which the corporation
is formed.
4. Lay out its road or roads, not
exceeding 200 feet wide, and construct and maintain the road with such tracks
and with such appendages as may be deemed necessary for the convenient use of
it. The company may make embankments, excavations, ditches, drains, culverts or
otherwise, and procure timber, stone and gravel, or other materials, and may
take as much more land, whenever they may think proper, as may be necessary for
the purposes aforesaid, in the manner hereinafter provided, for the proper
construction and security of the road.
5. Construct their road across, along or
upon any stream of water, watercourse, roadstead, bay, navigable stream,
street, avenue or highway, or across any railway, canal, ditch or flume which
the route of its road intersects, crosses or runs along, in such manner as to
afford security for life and property. The corporation shall restore the stream
or watercourse, road, street, avenue, highway, railroad, canal, ditch or flume
thus intersected to its former state, as near as may be, or in a sufficient
manner not to have impaired unnecessarily its usefulness or injured its
franchises.
6. Cross, intersect, join and unite its
railroad with any other railroad, either before or after constructed, at any
point upon its route, and upon the grounds of such other railroad company, with
the necessary turnouts, sidings and switches, and other conveniences, in
furtherance of the objects of its connections; and every company whose railroad
is, or will be hereafter, intersected by any new railroad in forming such
intersections and connection, and grant the facilities aforesaid. If the two
corporations cannot agree upon the amount of compensation to be made therefor,
or the points or the manner of such crossings, intersections and connections,
the same must be ascertained and determined by commissioners, to be appointed
as is provided hereinafter in respect to the taking of lands, but this section
is not to affect the rights and franchises heretofore granted.
7. Purchase lands, timber, stone, gravel
or other materials to be used in the construction and maintenance of its road,
or take them in the manner provided by this chapter. The railroad company may
change the line of its road, in whole or in part, whenever a majority of the
directors determine, as is provided hereinafter, but no such change may vary
the general route of a road, as contemplated in the articles of incorporation
of the company.
8. Receive by purchase, donation or
otherwise, any lands, or other property, of any description, and hold and
convey it in any manner the directors may think proper, the same as natural
persons might or could do, that may be necessary for the construction and
maintenance of its road, or for the erection of depots, turnouts, workshops,
warehouses or for any other purposes necessary for the convenience of railroad
companies, in order to transact the business usual for railroad companies.
9. Take, transport, carry and convey
persons and property on their railroad, by the force and power of steam, of
animals, or any mechanical power, or by any combinations of them, and receive
tolls or compensation therefor.
10. Erect and maintain all necessary and
convenient buildings, stations, depots and fixtures and machinery for the
accommodation and use of their passengers, freight and business, obtain and
hold the lands and other property necessary therefor, and acquire additional
lands and rights-of-way and build and operate extensions or branches of its
line of railroad.
11. Regulate the time and manner in which
passengers and property are transported, and the tolls and compensation to be
paid therefor, within the limits prescribed by law.
12. Regulate the force and speed of their
locomotives, cars, trains or other machinery used and employed on their road,
and establish, execute and enforce all needful and proper rules and regulations
fully and completely for the management of its business transactions usual and
proper for railroad companies.
13. Purchase, hold, sell and transfer
shares of its own stock, bonds, debentures, or other securities issued by it,
except that:
(a) No corporation may use its funds or property
for the purchase of its own shares of stock when such use would cause any
impairment of the capital of the corporation; and
(b) Shares of its own stock belonging to the
corporation must not be voted upon, directly or indirectly, nor counted as
outstanding for the purpose of any stockholders’ quorum or vote.
14. Acquire, own, and operate motor
vehicles, and air transportation facilities, and transport persons and property
along and over the streets and highways of this State, for the transportation,
for hire, of passengers, property and freight, either directly or through a
subsidiary company or companies, subject to all relevant provisions of law
concerning permits, licenses, franchises and the regulation of such form of
transportation by motor vehicles or other agencies.
Ê Whenever the
track of a railroad crosses a railroad or highway, such railroad or highway may
be carried under, over or on a level with the track, as may be most expedient,
and in cases where an embankment or cutting makes a change in the line of such
railroad or highway desirable, with a view to a more easy ascent or descent,
the company may take such additional lands and materials, if needed for the
construction of such road or highway, on such new line, as may be deemed
requisite by the railroad. Unless the lands and materials so taken are
purchased, or voluntarily given for the purpose aforesaid, compensation
therefor must be ascertained in the manner provided by law.
[9(a):177:1925; added 1945, 196; 1943 NCL §
1608.01]—(NRS A 1993,
2762)
NRS 78.080 Railroad companies: Rights-of-way granted by the State, counties
and municipalities; limitations; reversion on abandonment; duties of companies.
1. The right-of-way is hereby given and
granted to all railroad companies that are now organized, or may be organized
under the provisions of this chapter, or under the laws of any other state or
territory, or under any act of Congress, to locate, construct and maintain
their roads, or any part or parcel thereof, over and through any of the swamp
or overflowed lands belonging to this State, or any other public lands which
are now or may be the property of the State, at the time of constructing the
railroad.
2. Such railroad companies are hereby
authorized to survey and mark through the lands of the State, to be held by
them for the track of their respective railroads, 200 feet in width, for the
whole length the roads may be located over the lands of the State; and the
right is hereby further given and granted to the companies to locate, occupy
and hold all necessary sites and grounds for watering places, depots or other
buildings, for the convenient use of the same, along the line of the road or
roads, so far as the places convenient for the same may fall upon the lands
belonging to the State, except within the limits of any incorporated city or
town, or within 3 miles where the same shall be taken, on paying to the State
the value of the same.
3. No one depot, watering place, machine
or workshop, or other buildings for the convenient use of such roads, shall
cover over 6 acres each, and the sites or places on the lands of this State
shall not be nearer to each other than 5 miles along the line of the roads.
4. The right is hereby further given and
granted to the companies to take from any of the lands belonging to this State
all such materials of earth, wood, stone or other materials whatever, as may be
necessary or convenient, from time to time, for the first construction or
equipment of the road or roads, or any part thereof.
5. If any road, at any time after its
location, shall be discontinued or abandoned by the company or companies, or
the location of any part thereof be so changed as not to cover the lands of the
State thus previously occupied, then the lands so abandoned or left shall
revert to this State.
6. When the location of the route of
either of the railroads, or sites or places for depots, watering places,
machine or workshops or other buildings for the convenient use of the same,
shall be selected, the secretary of the company shall transmit to the Director
of the State Department of Conservation and Natural Resources, and to the State
Controller, and to the recorder of the county in which the lands so selected
are situated, to each of the officers, a correct plot of the location of the
railroad, or sites or places, before such selection shall become operative.
7. When any such company shall, for its
purposes aforesaid, require any of the lands belonging to any of the counties,
cities or towns in this State, the county, city and town officers,
respectively, having charge of such lands, may grant and convey such land to
such company, for a compensation which shall be agreed upon between them, or
may donate and convey the same without any compensation; and if they shall not
agree upon the sale and price, the same may be taken by the company as is
provided in other cases of taking lands by condemnation.
8. Before any corporation incorporated or
organized otherwise than under the laws of this State shall be entitled to any
of the rights granted by this chapter, it shall file in the office of the
county recorder of each county in which the railroad, or any part, extension or
branch thereof shall be situate, a copy of its certificate or articles of
incorporation, or of the act or law by which it was created, with the certified
list of its officers, in the manner and form required by law.
[9(b):177:1925; added 1945, 196; 1943 NCL §
1608.02]—(NRS A 1957, 653)
NRS 78.085 Railroad companies: Filing and recording of certified maps and
profiles.
1. Every railroad company in this State
shall, within 90 days after its road is finally located:
(a) Cause to be made a map and profile thereof,
and of the land taken and obtained for the use thereof, and the boundaries of
the several counties through which the road may run;
(b) File the map and profile thereof in the
Office of the Secretary of State and a duplicate thereof with the Public
Utilities Commission of Nevada; and
(c) Cause to be made like maps of the parts
thereof located in different counties, and record such maps in the office of
the recorder of the county in which those parts of the road are located.
2. The maps and profiles must be certified
by the chief engineer, the acting president and secretary of the company, and
copies of the maps and profiles so certified and recorded as required by
subsection 1 must be kept in the office of the company, subject to examination
by all interested persons.
[9(d):177:1925; added 1945, 196; 1943 NCL §
1608.04]—(NRS A 1997,
1963; 2001,
1751)
REGISTERED OFFICE AND REGISTERED AGENT
NRS 78.090 Registered agent required; address of registered office; powers
of bank or corporation who is registered agent; penalty for noncompliance;
service upon and delivery to registered agent in lieu of corporation.
1. Every corporation must have a
registered agent who resides or is located in this State. Notwithstanding the
provisions of NRS 77.300, each
registered agent must have a street address for receiving service of process,
which is the registered office of the corporation in this State. If the
registered agent is in the business of acting as a registered agent for more
than one business entity, the physical street address of the registered office
must be in a location for which such use is not prohibited by any local
ordinance. The registered agent may have a separate mailing address such as a
post office box, which may be different from the street address.
2. If the registered agent is a bank or
corporation, it may:
(a) Act as the fiscal or transfer agent of any
state, municipality, body politic or corporation and in that capacity may
receive and disburse money.
(b) Transfer, register and countersign
certificates of stock, bonds or other evidences of indebtedness and act as
agent of any corporation, foreign or domestic, for any purpose required by
statute, or otherwise.
(c) Act as trustee under any mortgage or bond
issued by any municipality, body politic or corporation, and accept and execute
any other municipal or corporate trust not inconsistent with the laws of this
State.
(d) Receive and manage any sinking fund of any
corporation, upon such terms as may be agreed upon between the corporation and
those dealing with it.
3. Every corporation organized pursuant to
this chapter which fails or refuses to comply with the requirements of this
section is subject to a fine of not less than $100 nor more than $500, to be
recovered with costs by the State, before any court of competent jurisdiction,
by action at law prosecuted by the Attorney General or by the district attorney
of the county in which the action or proceeding to recover the fine is prosecuted.
4. All legal process and any demand,
notice or communication authorized by law to be served upon, or delivered to, a
corporation may be served upon, or delivered to, the registered agent of the
corporation in the manner provided in subsection 2 of NRS 14.020. If any demand, notice,
communication or legal process, other than a summons and complaint, cannot be
served upon, or delivered to, the registered agent, it may be served or
delivered in the manner provided in NRS
14.030. These manners and modes of service or delivery are in addition to
any other manner and mode of service or delivery authorized by law.
[78:177:1925; A 1929, 413; NCL § 1677] + [Part
79:177:1925; NCL § 1678]—(NRS A 1959, 682; 1969, 571; 1987, 1057; 1989, 949, 975, 1971; 1991, 1213; 1993, 948; 1995, 2095; 2007, 2641; 2011, 2771)
NRS 78.097 Resignation of registered agent or termination of registration
of commercial registered agent.
1. If a registered agent resigns pursuant
to NRS 77.370 or if a commercial
registered agent terminates its registration as a commercial registered agent
pursuant to NRS 77.330, the
corporation, before the effective date of the resignation or termination, shall
file with the Secretary of State a statement of change of registered agent
pursuant to NRS 77.340.
2. A corporation that fails to comply with
subsection 1 shall be deemed in default and is subject to the provisions of NRS 78.170 and 78.175.
3. As used in this section, “commercial
registered agent” has the meaning ascribed to it in NRS 77.040.
(Added to NRS by 1959, 681; A 1967, 89; 1969, 11; 1989, 949; 1991, 1214; 1993, 949; 1999, 1579; 2003, 3081; 2003, 20th
Special Session, 29; 2007, 2642; 2013, 839)
NRS 78.105 Maintenance of records at registered office; inspection and
copying of records; civil liability; penalties.
1. A corporation shall keep a copy of the
following records at its registered office:
(a) A copy certified by the Secretary of State of
its articles of incorporation, and all amendments thereto;
(b) A copy certified by an officer of the
corporation of its bylaws and all amendments thereto; and
(c) A stock ledger or a duplicate stock ledger,
revised annually, containing the names, alphabetically arranged, of all persons
who are stockholders of the corporation, showing their places of residence, if
known, and the number of shares held by them respectively. In lieu of the stock
ledger or duplicate stock ledger, the corporation may keep a statement setting
out the name of the custodian of the stock ledger or duplicate stock ledger,
and the present and complete mailing or street address where the stock ledger
or duplicate stock ledger specified in this section is kept.
2. A stock ledger, duplicate stock ledger
or statement setting out the name of the custodian of the stock ledger or
duplicate stock ledger described in paragraph (c) of subsection 1 must be
maintained by the registered agent of the corporation for 3 years following the
resignation or termination of the registered agent or the dissolution of the
corporation by the Secretary of State.
3. Any person who has been a stockholder
of record of a corporation for at least 6 months immediately preceding the
demand, or any person holding, or thereunto authorized in writing by the
holders of, at least 5 percent of all of its outstanding shares, upon at least
5 days’ written demand is entitled to inspect in person or by agent or
attorney, during usual business hours, the records required by subsection 1 and
make copies therefrom. Holders of voting trust certificates representing shares
of the corporation must be regarded as stockholders for the purpose of this
subsection. Every corporation that neglects or refuses to keep the records
required by subsection 1 open for inspection, as required in this subsection,
shall forfeit to the State the sum of $25 for every day of such neglect or
refusal.
4. If any corporation willfully neglects
or refuses to make any proper entry in the stock ledger or duplicate copy
thereof, or neglects or refuses to permit an inspection of the records required
by subsection 1 upon demand by a person entitled to inspect them, or refuses to
permit copies to be made therefrom, as provided in subsection 3, the
corporation is liable to the person injured for all damages resulting to the
person therefrom.
5. When the corporation keeps a statement
in the manner provided for in paragraph (c) of subsection 1, the information
contained thereon must be given to any stockholder of the corporation demanding
the information, when the demand is made during business hours. Every
corporation that neglects or refuses to keep a statement available, as in this
subsection required, shall forfeit to the State the sum of $25 for every day of
such neglect or refusal.
6. In every instance where an attorney or
other agent of the stockholder seeks the right of inspection, the demand must
be accompanied by a power of attorney signed by the stockholder authorizing the
attorney or other agent to inspect on behalf of the stockholder.
7. The right to copy records under
subsection 3 includes, if reasonable, the right to make copies by photographic,
xerographic or other means.
8. The corporation may impose a reasonable
charge to recover the costs of labor and materials and the cost of copies of
any records provided to the stockholder.
[80:177:1925; A 1951, 332]—(NRS A 1959, 29; 1963,
217; 1965, 978; 1991,
1214; 1997,
697; 2003,
3082; 2007,
2642)
NRS 78.107 Denial of request for inspection of records; defense to action
for penalties or damages; authority of court to compel production of records.
1. An inspection authorized by NRS 78.105 may be denied to a stockholder or other
person upon the refusal of the stockholder or other person to furnish to the
corporation an affidavit that the inspection is not desired for a purpose which
is in the interest of a business or object other than the business of the
corporation and that the stockholder or other person has not at any time sold
or offered for sale any list of stockholders of any domestic or foreign
corporation or aided or abetted any person in procuring any such record of
stockholders for any such purpose.
2. It is a defense to any action for
penalties or damages under NRS 78.105 that the
person suing has at any time sold, or offered for sale, any list of
stockholders of the corporation, or any other corporation, or has aided or
abetted any person in procuring any such stock list for any such purpose, or
that the person suing desired inspection for a purpose which is in the interest
of a business or object other than the business of the corporation.
3. This section does not impair the power
or jurisdiction of any court to compel the production for examination of the
books of a corporation in any proper case.
(Added to NRS by 1997, 693)
DIRECTORS AND OFFICERS
NRS 78.115 Board of directors: Number and qualifications. The business of every corporation must be
managed under the direction of a board of directors or trustees, all of whom
must be natural persons who are at least 18 years of age. A corporation must
have at least one director, and may provide in its articles of incorporation or
in its bylaws for a fixed number of directors or a variable number of
directors, and for the manner in which the number of directors may be increased
or decreased. Unless otherwise provided in the articles of incorporation,
directors need not be stockholders.
[Part 31:177:1925; NCL § 1630]—(NRS A 1965, 1012; 1981, 384; 1987, 577; 1993, 949; 1995, 1113; 2003, 3083)
NRS 78.120 Board of directors: General powers.
1. Subject only to such limitations as may
be provided by this chapter, or the articles of incorporation of the
corporation, the board of directors has full control over the affairs of the
corporation.
2. Except as otherwise provided in this
subsection and subject to the bylaws, if any, adopted by the stockholders, the
directors may make the bylaws of the corporation. Unless otherwise prohibited
by any bylaw adopted by the stockholders, the directors may adopt, amend or
repeal any bylaw, including any bylaw adopted by the stockholders. The articles
of incorporation may grant the authority to adopt, amend or repeal bylaws
exclusively to the directors.
3. The selection of a period for the
achievement of corporate goals is the responsibility of the directors.
[Part 31:177:1925; NCL § 1630]—(NRS A 1991, 1217; 2003, 3083; 2005, 2176)
NRS 78.125 Committees of board of directors: Designation; powers;
membership.
1. Unless it is otherwise provided in the
articles of incorporation, the board of directors may designate one or more
committees which, to the extent provided in the resolution or resolutions or in
the bylaws of the corporation, have and may exercise the powers of the board of
directors in the management of the business and affairs of the corporation.
2. Each committee must include at least
one director. Unless the articles of incorporation or the bylaws provide
otherwise, the board of directors may appoint natural persons who are not
directors to serve on committees.
3. The board of directors may designate
one or more directors as alternate members of a committee to replace any member
who is disqualified or absent from a meeting of the committee. The bylaws of
the corporation may provide that, unless the board of directors appoints
alternate members pursuant to this subsection, the member or members of a
committee present at a meeting and not disqualified from voting, whether or not
the member or members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in the place of an
absent or disqualified member of the committee.
[32:177:1925; A 1929, 413; NCL § 1631]—(NRS A 1971,
1100; 1991,
1217; 1993,
949; 2001,
1359, 3199;
2003, 3083)
NRS 78.130 Officers of corporation: Selection; qualifications; terms;
powers and duties; filling of vacancies.
1. Every corporation must have a
president, a secretary and a treasurer, or the equivalent thereof.
2. Every corporation may also have one or
more vice presidents, assistant secretaries and assistant treasurers, and such
other officers and agents as may be deemed necessary.
3. All officers must be natural persons
and must be chosen in such manner, hold their offices for such terms and have
such powers and duties as may be prescribed by the bylaws or determined by the
board of directors. Any natural person may hold two or more offices.
4. An officer holds office after the
expiration of his or her term until a successor is chosen or until the officer’s
resignation or removal before the expiration of his or her term. A failure to
elect officers does not require the corporation to be dissolved. Any vacancy
occurring in an office of the corporation by death, resignation, removal or
otherwise, must be filled as the bylaws provide, or in the absence of such a
provision, by the board of directors.
[36:177:1925; A 1937, 291; 1931 NCL § 1635]—(NRS A
1960, 152; 1991,
1217; 1993,
950; 2009,
1673)
NRS 78.135 Authority of directors and representatives of corporation.
1. The statement in the articles of
incorporation of the objects, purposes, powers and authorized business of the
corporation constitutes, as between the corporation and its directors, officers
or stockholders, an authorization to the directors and a limitation upon the
actual authority of the representatives of the corporation. Such limitations
may be asserted in a proceeding by a stockholder or the State to enjoin the
doing or continuation of unauthorized business by the corporation or its
officers, or both, in cases where third parties have not acquired rights
thereby, or to dissolve the corporation, or in a proceeding by the corporation
or by the stockholders suing in a representative suit against the officers or
directors of the corporation for violation of their authority.
2. No limitation upon the business,
purposes or powers of the corporation or upon the powers of the stockholders,
officers or directors, or the manner of exercise of such powers, contained in
or implied by the articles may be asserted as between the corporation or any
stockholder and any third person.
3. Any contract or conveyance, otherwise
lawful, made in the name of a corporation, which is authorized or ratified by
the directors, or is done within the scope of the authority, actual or
apparent, given by the directors, binds the corporation, and the corporation
acquires rights thereunder, whether the contract is signed or is wholly or in
part executory.
[Part 31(a):177:1925; added 1949, 158; 1943 NCL §
1630.01]—(NRS A 1961, 94; 1993, 950; 2003, 3083)
NRS 78.138 Directors and officers: Exercise of powers; performance of
duties; presumptions and considerations; liability to corporation and stockholders.
1. Directors and officers shall exercise
their powers in good faith and with a view to the interests of the corporation.
2. In performing their respective duties,
directors and officers are entitled to rely on information, opinions, reports,
books of account or statements, including financial statements and other
financial data, that are prepared or presented by:
(a) One or more directors, officers or employees
of the corporation reasonably believed to be reliable and competent in the
matters prepared or presented;
(b) Counsel, public accountants, financial
advisers, valuation advisers, investment bankers or other persons as to matters
reasonably believed to be within the preparer’s or presenter’s professional or
expert competence; or
(c) A committee on which the director or officer
relying thereon does not serve, established in accordance with NRS 78.125, as to matters within the committee’s
designated authority and matters on which the committee is reasonably believed
to merit confidence,
Ê but a
director or officer is not entitled to rely on such information, opinions,
reports, books of account or statements if the director or officer has
knowledge concerning the matter in question that would cause reliance thereon
to be unwarranted.
3. Directors and officers, in deciding
upon matters of business, are presumed to act in good faith, on an informed
basis and with a view to the interests of the corporation.
4. Directors and officers, in exercising
their respective powers with a view to the interests of the corporation, may
consider:
(a) The interests of the corporation’s employees,
suppliers, creditors and customers;
(b) The economy of the State and Nation;
(c) The interests of the community and of
society; and
(d) The long-term as well as short-term interests
of the corporation and its stockholders, including the possibility that these
interests may be best served by the continued independence of the corporation.
5. Directors and officers are not required
to consider the effect of a proposed corporate action upon any particular group
having an interest in the corporation as a dominant factor.
6. The provisions of subsections 4 and 5
do not create or authorize any causes of action against the corporation or its
directors or officers.
7. Except as otherwise provided in NRS 35.230, 90.660, 91.250,
452.200, 452.270, 668.045 and 694A.030, or unless the articles of
incorporation or an amendment thereto, in each case filed on or after October
1, 2003, provide for greater individual liability, a director or officer is not
individually liable to the corporation or its stockholders or creditors for any
damages as a result of any act or failure to act in his or her capacity as a
director or officer unless it is proven that:
(a) The director’s or officer’s act or failure to
act constituted a breach of his or her fiduciary duties as a director or
officer; and
(b) The breach of those duties involved
intentional misconduct, fraud or a knowing violation of law.
(Added to NRS by 1991, 1184; A 1993, 951; 1999, 1580; 2001, 3171; 2003, 3084)
NRS 78.139 Directors and officers: Duties, presumptions and powers when
confronted with change or potential change in control of corporation.
1. Except as otherwise provided in
subsection 2 or the articles of incorporation, directors and officers, in
connection with a change or potential change in control of the corporation,
have:
(a) The duties imposed upon them by subsection 1
of NRS 78.138;
(b) The benefit of the presumptions established
by subsection 3 of NRS 78.138; and
(c) The prerogative to undertake and act upon
consideration pursuant to subsections 2, 4 and 5 of NRS
78.138.
2. If directors or officers take action to
resist a change or potential change in control of a corporation, which action
impedes the exercise of the right of stockholders to vote for or remove
directors:
(a) The directors must have reasonable grounds to
believe that a threat to corporate policy and effectiveness exists; and
(b) The action taken which impedes the exercise
of the stockholders’ rights must be reasonable in relation to that threat.
Ê If those
facts are found, the directors and officers have the benefit of the presumption
established by subsection 3 of NRS 78.138.
3. The provisions of subsection 2 do not
apply to:
(a) Actions that only affect the time of the
exercise of stockholders’ voting rights; or
(b) The adoption or signing of plans,
arrangements or instruments that deny rights, privileges, power or authority to
a holder of a specified number or fraction of shares or fraction of voting
power.
4. The provisions of subsections 2 and 3
do not permit directors or officers to abrogate any right conferred by statute
or the articles of incorporation.
5. Directors may resist a change or
potential change in control of the corporation if the directors by a majority
vote of a quorum determine that the change or potential change is opposed to or
not in the best interest of the corporation:
(a) Upon consideration of the interests of the
corporation’s stockholders or any of the matters set forth in subsection 4 of NRS 78.138; or
(b) Because the amount or nature of the
indebtedness and other obligations to which the corporation or any successor to
the property of either may become subject, in connection with the change or potential
change, provides reasonable grounds to believe that, within a reasonable time:
(1) The assets of the corporation or any
successor would be or become less than its liabilities;
(2) The corporation or any successor would
be or become insolvent; or
(3) Any voluntary or involuntary
proceeding concerning the corporation or any successor would be commenced by
any person pursuant to the federal bankruptcy laws.
(Added to NRS by 1999, 1575; A 2009, 1674;
2013, 1269)
NRS 78.140 Restrictions on transactions involving interested directors or
officers; compensation of directors.
1. A contract or other transaction is not
void or voidable solely because:
(a) The contract or transaction is between a
corporation and:
(1) One or more of its directors or
officers; or
(2) Another corporation, firm or
association in which one or more of its directors or officers are directors or
officers or are financially interested;
(b) A common or interested director or officer:
(1) Is present at the meeting of the board
of directors or a committee thereof which authorizes or approves the contract
or transaction; or
(2) Joins in the signing of a written
consent which authorizes or approves the contract or transaction pursuant to
subsection 2 of NRS 78.315; or
(c) The vote or votes of a common or interested
director are counted for the purpose of authorizing or approving the contract
or transaction,
Ê if one of
the circumstances specified in subsection 2 exists.
2. The circumstances in which a contract
or other transaction is not void or voidable pursuant to subsection 1 are:
(a) The fact of the common directorship, office
or financial interest is known to the board of directors or committee, and the
board or committee authorizes, approves or ratifies the contract or transaction
in good faith by a vote sufficient for the purpose without counting the vote or
votes of the common or interested director or directors.
(b) The fact of the common directorship, office
or financial interest is known to the stockholders, and they approve or ratify
the contract or transaction in good faith by a majority vote of stockholders
holding a majority of the voting power. The votes of the common or interested
directors or officers must be counted in any such vote of stockholders.
(c) The fact of the common directorship, office
or financial interest is not known to the director or officer at the time the
transaction is brought before the board of directors of the corporation for
action.
(d) The contract or transaction is fair as to the
corporation at the time it is authorized or approved.
3. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the board of
directors or a committee thereof which authorizes, approves or ratifies a
contract or transaction, and if the votes of the common or interested directors
are not counted at the meeting, then a majority of the disinterested directors
may authorize, approve or ratify a contract or transaction.
4. The fact that the vote or votes of the
common or interested director or directors are not counted for purposes of
subsection 2 does not prohibit any authorization, approval or ratification of a
contract or transaction to be given by written consent pursuant to subsection 2
of NRS 78.315, regardless of whether the common or
interested director signs such written consent or abstains in writing from
providing consent.
5. Unless otherwise provided in the
articles of incorporation or the bylaws, the board of directors, without regard
to personal interest, may establish the compensation of directors for services
in any capacity. If the board of directors establishes the compensation of
directors pursuant to this subsection, such compensation is presumed to be fair
to the corporation unless proven unfair by a preponderance of the evidence.
[31(b):177:1925; added 1951, 328]—(NRS A 1959, 683;
1969, 113; 1989,
872; 1991,
1218; 1993,
952; 1997,
698; 2003,
3085; 2007,
2415)
ANNUAL LIST AND OTHER REQUIREMENTS; DEFAULTING CORPORATIONS
NRS 78.150 Filing requirements; fees; powers and duties of Secretary of
State; regulations.
1. A corporation organized pursuant to the
laws of this State shall, on or before the last day of the first month after
the filing of its articles of incorporation with the Secretary of State or, if
the corporation has selected an alternative due date pursuant to subsection 11,
on or before that alternative due date, file with the Secretary of State a
list, on a form furnished by the Secretary of State, containing:
(a) The name of the corporation;
(b) The file number of the corporation, if known;
(c) The names and titles of the president,
secretary and treasurer, or the equivalent thereof, and of all the directors of
the corporation;
(d) The address, either residence or business, of
each officer and director listed, following the name of the officer or
director; and
(e) The signature of an officer of the
corporation, or some other person specifically authorized by the corporation to
sign the list, certifying that the list is true, complete and accurate.
2. The corporation shall annually
thereafter, on or before the last day of the month in which the anniversary
date of incorporation occurs in each year or, if, pursuant to subsection 11,
the corporation has selected an alternative due date for filing the list
required by subsection 1, on or before the last day of the month in which the
anniversary date of the alternative due date occurs in each year, file with the
Secretary of State, on a form furnished by the Secretary of State, an annual
list containing all of the information required in subsection 1.
3. Each list required by subsection 1 or 2
must be accompanied by:
(a) A declaration under penalty of perjury that:
(1) The corporation has complied with the
provisions of chapter 76 of NRS;
(2) The corporation acknowledges that
pursuant to NRS 239.330, it is a
category C felony to knowingly offer any false or forged instrument for filing
with the Office of the Secretary of State; and
(3) None of the officers or directors
identified in the list has been identified in the list with the fraudulent
intent of concealing the identity of any person or persons exercising the power
or authority of an officer or director in furtherance of any unlawful conduct.
(b) A statement as to whether the corporation is
a publicly traded company. If the corporation is a publicly traded company, the
corporation must list its Central Index Key. The Secretary of State shall
include on the Secretary of State’s Internet website the Central Index Key of a
corporation provided pursuant to this paragraph and instructions describing the
manner in which a member of the public may obtain information concerning the
corporation from the Securities and Exchange Commission.
4. Upon filing the list required by:
(a) Subsection 1, the corporation shall pay to
the Secretary of State a fee of $125.
(b) Subsection 2, the corporation shall pay to
the Secretary of State, if the amount represented by the total number of shares
provided for in the articles is:
$75,000 or less...................................................................................................... $125
Over $75,000 and not over $200,000................................................................ 175
Over $200,000 and not over $500,000.............................................................. 275
Over $500,000 and not over
$1,000,000........................................................... 375
Over $1,000,000:
For the first $1,000,000.................................................................................. 375
For each additional $500,000
or fraction thereof..................................... 275
Ê The maximum
fee which may be charged pursuant to paragraph (b) for filing the annual list
is $11,100.
5. If a director or officer of a
corporation resigns and the resignation is not reflected on the annual or
amended list of directors and officers, the corporation or the resigning
director or officer shall pay to the Secretary of State a fee of $75 to file
the resignation.
6. The Secretary of State shall, 90 days
before the last day for filing each annual list required by subsection 2,
provide to each corporation which is required to comply with the provisions of NRS 78.150 to 78.185,
inclusive, and which has not become delinquent, a notice of the fee due
pursuant to subsection 4 and a reminder to file the annual list required by
subsection 2. Failure of any corporation to receive a notice does not excuse it
from the penalty imposed by law.
7. If the list to be filed pursuant to the
provisions of subsection 1 or 2 is defective in any respect or the fee required
by subsection 4 is not paid, the Secretary of State may return the list for
correction or payment.
8. An annual list for a corporation not in
default which is received by the Secretary of State more than 90 days before
its due date shall be deemed an amended list for the previous year and must be
accompanied by the appropriate fee as provided in subsection 4 for filing. A
payment submitted pursuant to this subsection does not satisfy the requirements
of subsection 2 for the year to which the due date is applicable.
9. A person who files with the Secretary
of State a list required by subsection 1 or 2 which identifies an officer or
director with the fraudulent intent of concealing the identity of any person or
persons exercising the power or authority of an officer or director in
furtherance of any unlawful conduct is subject to the penalty set forth in NRS 225.084.
10. For the purposes of this section, a
stockholder is not deemed to exercise actual control of the daily operations of
a corporation based solely on the fact that the stockholder has voting control
of the corporation.
11. The Secretary of State may allow a
corporation to select an alternative due date for filing the list required by
subsection 1.
12. The Secretary of State may adopt
regulations to administer the provisions of subsection 11.
[Part 1:180:1925; A 1929, 122; 1931, 408; 1931 NCL §
1804]—(NRS A 1957, 315; 1959, 684; 1977, 401; 1979, 185; 1983, 689; 1985, 233; 1989, 976; 1991, 2460; 1993, 952; 1995, 2096; 1997, 2808, 3126; 1999, 639, 1581, 3018; 2001, 215, 1359, 3172, 3199; 2003, 928, 2253; 2003, 20th
Special Session, 30, 182; 2005, 2249; 2007, 2643; 2009, 2033,
2827; 2013, 840)
NRS 78.152 List or statement to be maintained at registered office or
principal place of business; requirement to assist in criminal investigation;
failure to comply; regulations.
1. In addition to any records required to
be kept at the registered office pursuant to NRS 78.105,
a corporation that is not a publicly traded corporation shall maintain at its
registered office or principal place of business in this State:
(a) A current list of its owners of record; or
(b) A statement indicating where such a list is
maintained.
2. Upon the request of the Secretary of
State, the corporation shall:
(a) Provide the Secretary of State with the name
and contact information of the custodian of the list described in subsection 1.
The information required pursuant to this paragraph shall be kept confidential
by the Secretary of State.
(b) Provide written notice to the Secretary of
State within 10 days after any change in the information contained in the list
described in subsection 1.
3. Upon the request of any law enforcement
agency in the course of a criminal investigation, the Secretary of State may
require a corporation to:
(a) Submit to the Secretary of State, within 3
business days, a copy of the list required to be maintained pursuant to
subsection 1; or
(b) Answer any interrogatory submitted by the
Secretary of State that will assist in the criminal investigation.
4. If a corporation fails to comply with
any requirement pursuant to subsection 3, the Secretary of State may take any
action necessary, including, without limitation, the suspension or revocation
of the corporate charter.
5. The Secretary of State shall not
reinstate or revive a charter that was revoked or suspended pursuant to
subsection 4 unless:
(a) The corporation complies with the
requirements of subsection 3; or
(b) The law enforcement agency conducting the
investigation advises the Secretary of State to reinstate or revive the
corporate charter.
6. The Secretary of State may adopt
regulations to administer the provisions of this section.
(Added to NRS by 2007, 1315; A 2009, 2828)
NRS 78.153 Additional filing requirements for certain corporations:
Criteria; statement; fees.
1. At the time of submitting any list
required pursuant to NRS 78.150, a corporation that
meets the criteria set forth in subsection 2 must submit:
(a) The statement required pursuant to subsection
3, accompanied by a declaration under penalty of perjury attesting that the
statement does not contain any material misrepresentation of fact; and
(b) A fee of $100,000, to be distributed in the
manner provided pursuant to subsection 4.
2. A corporation must submit a statement
pursuant to this section if the corporation, including its parent and all
subsidiaries:
(a) Holds 25 percent or more of the share of the
market within this State for any product sold or distributed by the corporation
within this State; and
(b) Has had, during the previous 5-year period, a
total of five or more investigations commenced against the corporation, its
parent or its subsidiaries in any jurisdiction within the United States,
including all state and federal investigations:
(1) Which concern any alleged contract,
combination or conspiracy in restraint of trade, as described in subsection 1
of NRS 598A.060, or which concern
similar activities prohibited by a substantially similar law of another
jurisdiction; and
(2) Which resulted in the corporation
being fined or otherwise penalized or which resulted in the corporation being
required to divest any holdings or being unable to acquire any holdings as a
condition for the settlement, dismissal or resolution of those investigations.
3. A corporation that meets the criteria
set forth in subsection 2 shall submit a statement which includes the following
information with respect to each investigation:
(a) The jurisdiction in which the investigation
was commenced.
(b) A summary of the nature of the investigation
and the facts and circumstances surrounding the investigation.
(c) If the investigation resulted in criminal or
civil litigation, a copy of all pleadings filed in the investigation by any
party to the litigation.
(d) A summary of the outcome of the
investigation, including specific information concerning whether any fine or
penalty was imposed against the corporation and whether the corporation was
required to divest any holdings or was unable to acquire any holdings as a
condition for the settlement, dismissal or resolution of the investigation.
4. The fee collected pursuant to
subsection 1 must be deposited in the Attorney General’s Administration Budget
Account and used solely for the purpose of investigating any alleged contract,
combination or conspiracy in restraint of trade, as described in subsection 1
of NRS 598A.060.
(Added to NRS by 2003, 927)
NRS 78.155 Certificate of authorization to transact business. If a corporation has filed the initial or
annual list in compliance with NRS 78.150 and has
paid the appropriate fee for the filing, the cancelled check or other proof of
payment received by the corporation constitutes a certificate authorizing it to
transact its business within this State until the last day of the month in
which the anniversary of its incorporation occurs in the next succeeding
calendar year.
[2:180:1925; A 1931, 408; 1931 NCL § 1805]—(NRS A
1959, 684; 1981,
62; 1983,
689; 1993,
953; 1999,
1582; 2001,
3173; 2003, 20th
Special Session, 31)
NRS 78.170 Defaulting corporations: Identification; reinstatement of
corporation which is unit-owners’ association; penalty.
1. Each corporation which is required to
make a filing and pay the fee prescribed in NRS 78.150
to 78.185, inclusive, and which refuses or neglects
to do so within the time provided shall be deemed in default.
2. Upon notification from the
Administrator of the Real Estate Division of the Department of Business and
Industry that a corporation which is a unit-owners’ association as defined in NRS 116.011 or 116B.030 has failed to register pursuant
to NRS 116.31158 or 116B.625 or failed to pay the fees
pursuant to NRS 116.31155 or 116B.620, the Secretary of State shall
deem the corporation to be in default. If, after the corporation is deemed to
be in default, the Administrator notifies the Secretary of State that the
corporation has registered pursuant to NRS
116.31158 or 116B.625 and paid
the fees pursuant to NRS 116.31155 or
116B.620, the Secretary of State shall
reinstate the corporation if the corporation complies with the requirements for
reinstatement as provided in this section and NRS
78.180 and 78.185.
3. For default there must be added to the
amount of the fee a penalty of $75. The fee and penalty must be collected as
provided in this chapter.
[4:180:1925; A 1931, 408; 1931 NCL § 1807]—(NRS A 1977, 401, 606; 1979, 185; 1983, 690; 1985, 233; 1989, 976; 1991, 1219; 1995, 1113; 2001, 3173; 2003, 929; 2003, 20th
Special Session, 32; 2007, 2281)
NRS 78.175 Defaulting corporations: Duties of Secretary of State;
revocation of charter and forfeiture of right to transact business;
distribution of assets.
1. The Secretary of State shall notify, by
providing written notice to its registered agent, each corporation deemed in
default pursuant to NRS 78.170. The written notice:
(a) Must include a statement indicating the
amount of the filing fee, penalties incurred and costs remaining unpaid.
(b) At the request of the registered agent, may
be provided electronically.
2. On the first day of the first
anniversary of the month following the month in which the filing was required,
the charter of the corporation is revoked and its right to transact business is
forfeited.
3. The Secretary of State shall compile a
complete list containing the names of all corporations whose right to transact
business has been forfeited.
4. The Secretary of State shall forthwith
notify, by providing written notice to its registered agent, each corporation
specified in subsection 3 of the forfeiture of its charter. The written notice:
(a) Must include a statement indicating the
amount of the filing fee, penalties incurred and costs remaining unpaid.
(b) At the request of the registered agent, may
be provided electronically.
5. If the charter of a corporation is
revoked and the right to transact business is forfeited as provided in
subsection 2, all the property and assets of the defaulting domestic
corporation must be held in trust by the directors of the corporation as for
insolvent corporations, and the same proceedings may be had with respect
thereto as are applicable to insolvent corporations. Any person interested may
institute proceedings at any time after a forfeiture has been declared, but, if
the Secretary of State reinstates the charter, the proceedings must at once be
dismissed and all property restored to the officers of the corporation.
6. Where the assets are distributed, they
must be applied in the following manner:
(a) To the payment of the filing fee, penalties
incurred and costs due the State;
(b) To the payment of the creditors of the
corporation; and
(c) Any balance remaining, to distribution among
the stockholders.
[Part 5:180:1925; NCL § 1808]—(NRS A 1957, 152; 1959,
59; 1973, 1026; 1977,
606; 1979,
185; 1991,
1219; 1995,
1113; 2001,
1360, 3199;
2003,
20th Special Session, 32; 2007, 2645)
NRS 78.180 Defaulting corporations: Conditions and procedure for
reinstatement.
1. Except as otherwise provided in
subsections 3 and 4 and NRS 78.152, the Secretary
of State shall reinstate a corporation which has forfeited or which forfeits
its right to transact business pursuant to the provisions of this chapter and
shall restore to the corporation its right to carry on business in this State,
and to exercise its corporate privileges and immunities, if it:
(a) Files with the Secretary of State:
(1) The list required by NRS 78.150;
(2) The statement required by NRS 78.153, if applicable;
(3) The information required pursuant to NRS 77.310; and
(4) A declaration under penalty of
perjury, on a form provided by the Secretary of State, that the reinstatement is
authorized by a court of competent jurisdiction in this State or by the duly
elected board of directors of the corporation or, if the corporation does not
have a board of directors, the equivalent of such a board; and
(b) Pays to the Secretary of State:
(1) The filing fee and penalty set forth
in NRS 78.150 and 78.170
for each year or portion thereof during which it failed to file each required
annual list in a timely manner;
(2) The fee set forth in NRS 78.153, if applicable; and
(3) A fee of $300 for reinstatement.
2. When the Secretary of State reinstates
the corporation, the Secretary of State shall issue to the corporation a
certificate of reinstatement if the corporation:
(a) Requests a certificate of reinstatement; and
(b) Pays the required fees pursuant to subsection
7 of NRS 78.785.
3. The Secretary of State shall not order
a reinstatement unless all delinquent fees and penalties have been paid, and
the revocation of the charter occurred only by reason of failure to pay the fees
and penalties.
4. If a corporate charter has been revoked
pursuant to the provisions of this chapter and has remained revoked for a
period of 5 consecutive years, the charter must not be reinstated.
5. Except as otherwise provided in NRS 78.185, a reinstatement pursuant to this section
relates back to the date on which the corporation forfeited its right to
transact business under the provisions of this chapter and reinstates the
corporation’s right to transact business as if such right had at all times
remained in full force and effect.
[6:180:1925; A 1927, 42; NCL § 1809]—(NRS A 1959, 60;
1973, 1027; 1975, 477; 1977, 402; 1985, 234, 1871; 1991, 1220; 1993, 953; 1995, 1114; 1997, 2808; 2001, 1360, 3173, 3199; 2003, 20th
Special Session, 33; 2007, 1316, 2416, 2645; 2013, 841)
NRS 78.185 Defaulting corporations: Reinstatement under old or new name;
regulations.
1. Except as otherwise provided in
subsection 2, if a corporation applies to reinstate or revive its charter but
its name has been legally reserved or acquired by another artificial person
formed, organized, registered or qualified pursuant to the provisions of this
title whose name is on file with the Office of the Secretary of State or
reserved in the Office of the Secretary of State pursuant to the provisions of
this title, the corporation shall in its application for reinstatement submit
in writing to the Secretary of State some other name under which it desires its
corporate existence to be reinstated or revived. If that name is
distinguishable from all other names reserved or otherwise on file, the
Secretary of State shall reinstate the corporation under that new name. Upon
the issuance of a certificate of reinstatement or revival under that new name,
the articles of incorporation of the applying corporation shall be deemed to
reflect the new name without the corporation having to comply with the
provisions of NRS 78.385, 78.390
or 78.403.
2. If the applying corporation submits the
written, acknowledged consent of the artificial person having a name, or the
person who has reserved a name, which is not distinguishable from the old name
of the applying corporation or a new name it has submitted, it may be
reinstated or revived under that name.
3. For the purposes of this section, a
proposed name is not distinguishable from a name on file or reserved name
solely because one or the other contains distinctive lettering, a distinctive
mark, a trademark or a trade name, or any combination of these.
4. The Secretary of State may adopt
regulations that interpret the requirements of this section.
[7:180:1925; NCL § 1810]—(NRS A 1961, 94; 1987, 1057; 1991, 1221; 1993, 953; 1997, 2809; 1999, 1582; 2003, 3086; 2003, 20th
Special Session, 33; 2007, 1317, 2417)
STOCK AND OTHER SECURITIES; DISTRIBUTIONS
NRS 78.191 “Distribution” defined. As
used in NRS 78.191 to 78.307,
inclusive, unless the context otherwise requires, the word “distribution” means
a direct or indirect transfer of money or other property other than its own
shares or the incurrence of indebtedness by a corporation to or for the benefit
of its stockholders with respect to 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.
(Added to NRS by 1991, 1185)
NRS 78.195 Issuance of more than one class or series of stock; rights of
stockholders.
1. If a corporation desires to have more
than one class or series of stock, the articles of incorporation must
prescribe, or vest authority in the board of directors to prescribe, the
classes, series and the number of each class or series of stock and the voting
powers, designations, preferences, limitations, restrictions and relative
rights of each class or series of stock. If more than one class or series of
stock is authorized, the articles of incorporation or the resolution of the
board of directors passed pursuant to a provision of the articles must
prescribe a distinguishing designation for each class and series. The voting
powers, designations, preferences, limitations, restrictions, relative rights
and distinguishing designation of each class or series of stock must be
described in the articles of incorporation or the resolution of the board of directors
before the issuance of shares of that class or series.
2. All shares of a series must have voting
powers, designations, preferences, limitations, restrictions 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, with those of
other series of the same class.
3. Unless otherwise provided in the
articles of incorporation, no stock issued as fully paid up may ever be
assessed and the articles of incorporation must not be amended in this
particular.
4. Any rate, condition or time for payment
of distributions on any class or series of stock may be made dependent upon any
fact or event which may be ascertained outside the articles of incorporation or
the resolution providing for the distributions adopted by the board of
directors if the manner in which a fact or event may operate upon the rate,
condition or time of payment for the distributions is stated in the articles of
incorporation or the resolution. As used in this subsection, “fact or event”
includes, without limitation, the existence of a fact or occurrence of an
event, including, without limitation, a determination or action by a person,
the corporation itself or any government, governmental agency or political
subdivision of a government.
5. The provisions of this section do not
restrict the directors of a corporation from taking action to protect the
interests of the corporation and its stockholders, including, but not limited
to, adopting or signing plans, arrangements or instruments that grant or deny rights,
privileges, power or authority to a holder or holders of a specified number of
shares or percentage of share ownership or voting power.
[11:177:1925; A 1929, 413; 1941, 374; 1931 NCL §
1610]—(NRS A 1961, 195; 1985, 1787; 1987, 577; 1989, 873; 1991, 1221; 1993, 954; 1995, 2097; 1999, 1582; 2001, 1361, 3199; 2003, 3086; 2009, 1675)
NRS 78.1955 Establishment of matters regarding class or series of stock by
resolution of board of directors.
1. If the voting powers, designations,
preferences, limitations, restrictions and relative rights of any class or
series of stock have been established by a resolution of the board of directors
pursuant to a provision in the articles of incorporation, a certificate of
designation setting forth the resolution and stating the number of shares for
each designation must be signed by an officer of the corporation and filed with
the Secretary of State. A certificate of designation signed and filed pursuant
to this section must become effective before the issuance of any shares of the
class or series.
2. Unless otherwise provided in the
articles of incorporation or the certificate of designation being amended, if
no shares of a class or series of stock established by a resolution of the
board of directors have been issued, the designation of the class or series,
the number of the class or series and the voting powers, designations,
preferences, limitations, restrictions and relative rights of the class or
series may be amended by a resolution of the board of directors pursuant to a
certificate of amendment filed in the manner provided in subsection 4.
3. Unless otherwise provided in the
articles of incorporation or the certificate of designation, if shares of a
class or series of stock established by a resolution of the board of directors
have been issued, the designation of the class or series, the number of the
class or series and the voting powers, designations, preferences, limitations,
restrictions and relative rights of the class or series may be amended by a
resolution of the board of directors only if the amendment is approved as
provided in this subsection. Unless otherwise provided in the articles of
incorporation or the certificate of designation, the proposed amendment adopted
by the board of directors must be approved by the vote of stockholders holding
shares in the corporation entitling them to exercise a majority of the voting
power, or such greater proportion of the voting power as may be required by the
articles of incorporation or the certificate of designation, of:
(a) The class or series of stock being amended;
and
(b) Each class and each series of stock which,
before amendment, is senior to the class or series being amended as to the
payment of distributions upon dissolution of the corporation, regardless of any
limitations or restrictions on the voting power of that class or series.
4. A certificate of amendment to a
certificate of designation must be signed by an officer of the corporation and
filed with the Secretary of State and must:
(a) Set forth the original designation and the
new designation, if the designation of the class or series is being amended;
(b) State that no shares of the class or series
have been issued or state that the approval of the stockholders required
pursuant to subsection 3 has been obtained; and
(c) Set forth the amendment to the class or
series or set forth the designation of the class or series, the number of the
class or series and the voting powers, designations, preferences, limitations,
restrictions and relative rights of the class or series, as amended.
5. A certificate filed pursuant to
subsection 1 or 4 is effective at the time of the filing of the certificate
with the Secretary of State or upon a later date and time as specified in the
certificate, which date must not be more than 90 days after the date on which
the certificate is filed. If a certificate filed pursuant to subsection 1 or 4
specifies a later effective date but does not specify an effective time, the
certificate is effective at 12:01 a.m. in the Pacific time zone on the
specified later date.
6. If shares of a class or series of stock
established by a certificate of designation are not outstanding, the
corporation may file a certificate which states that no shares of the class or
series are outstanding and which contains the resolution of the board of
directors authorizing the withdrawal of the certificate of designation
establishing the class or series of stock. The certificate must identify the
date and certificate of designation being withdrawn and must be signed by an
officer of the corporation and filed with the Secretary of State. Upon filing
the certificate and payment of the fee required pursuant to NRS 78.765, all matters contained in the certificate
of designation regarding the class or series of stock are eliminated from the
articles of incorporation.
7. NRS 78.380,
78.385 and 78.390 do
not apply to certificates of amendment filed pursuant to this section.
(Added to NRS by 1995, 2092; A 2001, 1362, 3199; 2005, 2177, 2250; 2011, 2771)
NRS 78.196 Required and authorized classes or series of stock; shares
called for redemption.
1. Each corporation must have:
(a) One or more classes or series of shares that
together have unlimited voting rights; and
(b) One or more classes or series of shares that
together are entitled to receive the net assets of the corporation upon
dissolution.
Ê If the
articles of incorporation provide for only one class of stock, that class of
stock has unlimited voting rights and is entitled to receive the net assets of
the corporation upon dissolution.
2. The articles of incorporation, or a
resolution of the board of directors pursuant thereto, may authorize one or
more classes or series of stock that:
(a) Have special, conditional or limited voting
powers, or no right to vote, except to the extent otherwise provided by this
title;
(b) Are redeemable or convertible:
(1) At the option of the corporation, the
stockholders or another person, or upon the occurrence of a designated event;
(2) For cash, indebtedness, securities or
other property; or
(3) 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 stockholders to distributions
calculated in any manner, including dividends that may be cumulative, noncumulative
or partially cumulative;
(d) Have preference over any other class or
series of shares with respect to distributions, including dividends and
distributions upon the dissolution of the corporation;
(e) Have par value; or
(f) Have powers, designations, preferences,
limitations, restrictions and relative rights dependent upon any fact or event
which may be ascertained outside of the articles of incorporation or the
resolution if the manner in which the fact or event may operate on such class
or series of stock is stated in the articles of incorporation or the
resolution. As used in this paragraph, “fact or event” includes, without
limitation, the existence of a fact or occurrence of an event, including,
without limitation, a determination or action by a person, the corporation
itself or any government, governmental agency or political subdivision of a
government.
3. Unless otherwise provided in the
articles of incorporation or in a resolution of the board of directors
establishing a class or series of stock, shares which are subject to redemption
and which have been called for redemption are not deemed to be outstanding
shares for purposes of voting or determining the total number of shares
entitled to vote on a matter on and after the date on which:
(a) Written notice of redemption has been sent to
the holders of such shares; and
(b) A sum sufficient to redeem the shares has
been irrevocably deposited or set aside to pay the redemption price to the
holders of the shares upon surrender of any certificates.
4. The description of voting powers,
designations, preferences, limitations, restrictions and relative rights of the
classes or series of shares contained in this section is not exclusive.
(Added to NRS by 1991, 1185; A 1999, 1583; 2001, 1363, 3199; 2003, 3087)
NRS 78.197 Rights of persons holding obligations of corporation. A corporation may provide in its articles of
incorporation that the holder of a bond, debenture or other obligation of the
corporation may have any of the rights of a stockholder in the corporation.
(Added to NRS by 1987, 574; A 1993, 955)
NRS 78.200 Rights or options to purchase stock.
1. A corporation may create and issue
rights or options entitling the holders thereof to purchase from the
corporation any shares of its stock of any class or classes to be evidenced by
or in such instrument or instruments as are approved by the board of directors.
2. The terms upon which, the time or
times, which may be limited or unlimited in duration, at or within which, and
the price or prices, including a formula by which such price or prices may be
determined, at which any such shares may be purchased from the corporation upon
the exercise of any such right or option may be fixed and stated in the
articles of incorporation or in a resolution or resolutions adopted by the
board of directors providing for the creation and issue of the rights or
options, and, in every case, set forth or incorporated by reference in the
instrument or instruments evidencing the rights or options. The judgment of the
board of directors as to the consideration for such rights or options issued is
conclusive in the absence of actual fraud in the transaction.
3. The board of directors may authorize
one or more officers of the corporation to:
(a) Designate the persons to be recipients of
rights or options created by the corporation; and
(b) Determine the number of rights or options to
be received by the persons designated pursuant to paragraph (a).
4. The authorization pursuant to
subsection 3 must specify the maximum number of rights or options the officer
or officers may award. The board of directors may not authorize an officer to
designate himself or herself as a recipient of the rights or options.
[11(a):177:1925; added 1949, 158; 1943 NCL §
1610.01]—(NRS A 1991,
1223; 1993,
955; 2003,
3088)
NRS 78.205 Fractions of shares: Issuance; alternatives to issuance.
1. A corporation is not obligated to but
may sign and deliver a certificate for or including a fraction of a share.
2. In lieu of signing and delivering a
certificate for a fraction of a share, a corporation may:
(a) Pay to any person otherwise entitled to
become a holder of a fraction of a share an amount in cash based on a per share
value, and that value or the method of determining that value must be specified
in the articles, plan of reorganization, plan of merger or exchange, resolution
of the board of directors, or other instrument pursuant to which the fractional
share would otherwise be issued;
(b) Issue such additional fraction of a share as
is necessary to increase the fractional share to a full share; or
(c) Sign and deliver registered or bearer scrip
over the manual or facsimile signature of an officer of the corporation or of
its agent for that purpose, exchangeable as provided on the scrip for full
share certificates, but the scrip does not entitle the holder to any rights as
a stockholder except as provided on the scrip. The scrip may provide that it
becomes void unless the rights of the holders are exercised within a specified
period and may contain any other provisions or conditions that the corporation
deems advisable. Whenever any scrip ceases to be exchangeable for full share
certificates, the shares that would otherwise have been issuable as provided on
the scrip are deemed to be treasury shares unless the scrip contains other
provisions for their disposition.
3. Any proposed corporate action that
would result in only money being paid or scrip being issued to stockholders
who:
(a) Before the proposed corporate action becomes
effective, hold 1 percent or more of the outstanding shares of the affected
class or series; and
(b) Would otherwise be entitled to receive a
fraction of a share in exchange for the cancellation of all their outstanding
shares,
Ê is subject
to the provisions of NRS 92A.300 to 92A.500, inclusive. If the proposed
corporate action is subject to those provisions, any stockholder who is
obligated to accept money or scrip rather than receive a fraction of a share
resulting from the action taken pursuant to this section may dissent in
accordance with those provisions and obtain payment of the fair value of the
fraction of a share to which the stockholder would otherwise be entitled.
[11(b):177:1925; added 1953, 180]—(NRS A 1979, 1160; 1993, 956; 2001, 1364, 3199; 2003, 3089; 2005, 2178; 2009, 1675)
NRS 78.2055 Decrease in number of issued and outstanding shares of class or
series: Resolution by board of directors; approval by stockholders; rights of
stockholders.
1. Unless otherwise provided in the
articles of incorporation, a corporation that desires to decrease the number of
issued and outstanding shares of a class or series held by each stockholder of
record at the effective date and time of the change without correspondingly
decreasing the number of authorized shares of the same class or series may do
so if:
(a) The board of directors adopts a resolution
setting forth the proposal to decrease the number of issued and outstanding
shares of a class or series; and
(b) The proposal is approved by the vote of
stockholders holding a majority of the voting power of the affected class or
series, or such greater proportion as may be provided in the articles of incorporation,
regardless of limitations or restrictions on the voting power of the affected
class or series.
2. If the proposal required by subsection
1 is approved by the stockholders entitled to vote, the corporation may reissue
its stock in accordance with the proposal after the effective date and time of
the change.
3. Except as otherwise provided in this
subsection, if a proposed decrease in the number of issued and outstanding
shares of any class or series would adversely alter or change any preference,
or any relative or other right given to any other class or series of
outstanding shares, then the decrease must be approved by the vote, in addition
to any vote otherwise required, of the holders of shares representing a
majority of the voting power of each class or series whose preference or rights
are adversely affected by the decrease, or such greater proportion as may be
provided in the articles of incorporation, regardless of limitations or
restrictions on the voting power of the adversely affected class or series. The
decrease does not have to be approved by the vote of the holders of shares
representing a majority of the voting power of each class or series whose
preference or rights are adversely affected by the decrease if the articles of
incorporation specifically deny the right to vote on such a decrease.
4. Any proposal to decrease the number of
issued and outstanding shares of any class or series, if any, that includes
provisions pursuant to which only money will be paid or scrip will be issued to
stockholders who:
(a) Before the decrease in the number of shares
becomes effective, hold 1 percent or more of the outstanding shares of the
affected class or series; and
(b) Would otherwise be entitled to receive a
fraction of a share in exchange for the cancellation of all their outstanding
shares,
Ê is subject
to the provisions of NRS 92A.300 to 92A.500, inclusive. If the proposal is
subject to those provisions, any stockholder who is obligated to accept money
or scrip rather than receive a fraction of a share resulting from the action
taken pursuant to this section may dissent in accordance with those provisions
and obtain payment of the fair value of the fraction of a share to which the
stockholder would otherwise be entitled.
(Added to NRS by 2001, 1357; A 2001, 3199; 2003, 3089; 2009, 1676)
NRS 78.207 Change in number of authorized shares of class or series:
Resolution by board of directors; approval by stockholders; rights of
stockholders.
1. Unless otherwise provided in the
articles of incorporation, a corporation that desires to change the number of
shares of a class or series, if any, of its authorized stock by increasing or
decreasing the number of authorized shares of the class or series and
correspondingly increasing or decreasing the number of issued and outstanding
shares of the same class or series held by each stockholder of record at the
effective date and time of the change, may, except as otherwise provided in
subsections 2 and 3, do so by a resolution adopted by the board of directors,
without obtaining the approval of the stockholders. The resolution may also
provide for a change of the par value, if any, of the same class or series of
the shares increased or decreased. After the effective date and time of the
change, the corporation may issue its stock in accordance therewith.
2. A proposal to increase or decrease the
number of authorized shares of any class or series, if any, that includes
provisions pursuant to which only money will be paid or scrip will be issued to
stockholders who:
(a) Before the increase or decrease in the number
of shares becomes effective, in the aggregate hold 10 percent or more of the
outstanding shares of the affected class or series; and
(b) Would otherwise be entitled to receive a
fraction of a share in exchange for the cancellation of all their outstanding
shares,
Ê must be
approved by the vote of stockholders holding a majority of the voting power of
the affected class or series, or such greater proportion as may be provided in
the articles of incorporation, regardless of limitations or restrictions on the
voting power thereof.
3. Except as otherwise provided in this
subsection, if a proposed increase or decrease in the number of authorized
shares of any class or series would adversely alter or change any preference or
any relative or other right given to any other class or series of outstanding
shares, then the increase or decrease must be approved by the vote, in addition
to any vote otherwise required, of the holders of shares representing a
majority of the voting power of each class or series whose preference or rights
are adversely affected by the increase or decrease, regardless of limitations
or restrictions on the voting power thereof. The increase or decrease does not
have to be approved by the vote of the holders of shares representing a
majority of the voting power in each class or series whose preference or rights
are adversely affected by the increase or decrease if the articles of
incorporation specifically deny the right to vote on such an increase or
decrease.
4. Any proposal to increase or decrease
the number of authorized shares of any class or series, if any, that includes
provisions pursuant to which only money will be paid or scrip will be issued to
stockholders who:
(a) Before the increase or decrease in the number
of shares becomes effective, hold 1 percent or more of the outstanding shares
of the affected class or series; and
(b) Would otherwise be entitled to receive a
fraction of a share in exchange for the cancellation of all of their
outstanding shares,
Ê is subject
to the provisions of NRS 92A.300 to 92A.500, inclusive. If the proposal is
subject to those provisions, any stockholder who is obligated to accept money
or scrip rather than receive a fraction of a share resulting from the action
taken pursuant to this section may dissent in accordance with those provisions
and obtain payment of the fair value of the fraction of a share to which the
stockholder would otherwise be entitled.
[Part 6:177:1925; A 1951, 28]—(NRS A 1959, 688; 1991, 1224; 1993, 956; 1995, 2098; 1997, 699; 2001, 1364, 3199; 2003, 3090; 2009, 1677)
NRS 78.209 Change in number of authorized shares of class or series: Filing
and effectiveness of certificate of change; amendment of articles of
incorporation.
1. A change pursuant to NRS 78.207 is not effective until after the filing in
the Office of the Secretary of State of a certificate, signed by an officer of
the corporation, setting forth:
(a) The number of authorized shares and the par
value, if any, of each affected class or, if applicable, each affected series
of shares before the change;
(b) The number of authorized shares and the par
value, if any, of each affected class or, if applicable, each affected series
of shares after the change;
(c) The number of shares of each affected class
or, if applicable, each affected series to be issued after the change in
exchange for each issued share of the same class or series;
(d) The provisions, if any, for the issuance of
fractional shares, or for the payment of money or the issuance of scrip to
stockholders otherwise entitled to a fraction of a share and the percentage of
outstanding shares affected thereby; and
(e) That any required approval of the
stockholders has been obtained.
Ê The
provisions in the articles of incorporation of the corporation regarding the
authorized number and par value, if any, of the changed class or, if
applicable, the changed series of shares shall be deemed amended as provided in
the certificate at the effective date and time of the change.
2. Unless an increase or decrease of the
number of authorized shares pursuant to NRS 78.207
is accomplished by an action that otherwise requires an amendment to the
articles of incorporation of the corporation, such an amendment is not required
by that section.
3. A certificate filed pursuant to
subsection 1 is effective at the time of the filing of the certificate with the
Secretary of State or upon a later date and time as specified in the
certificate, which date must not be more than 90 days after the date on which
the certificate is filed. If a certificate filed pursuant to subsection 1
specifies a later effective date but does not specify an effective time, the
certificate is effective at 12:01 a.m. in the Pacific time zone on the
specified later date.
4. If a certificate filed pursuant to
subsection 1 specifies a later effective date, the board of directors may
terminate the effectiveness of the certificate by resolution. A certificate of
termination must:
(a) Be filed with the Secretary of State before
the effective date specified in the certificate filed pursuant to subsection 1;
(b) Identify the certificate being terminated;
(c) State that the effectiveness of the
certificate has been terminated;
(d) Be signed by an officer of the corporation;
and
(e) Be accompanied by the fee required pursuant
to NRS 78.765.
(Added to NRS by 1997, 694; A 2001, 1365, 3199; 2005, 2179; 2011, 2773)
NRS 78.211 Consideration for shares: Authority of board of directors;
effect of receipt; corporate action pending receipt in future.
1. 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, but not limited to, cash,
promissory notes, services performed, contracts for services to be performed or
other securities of the corporation. The judgment of the board of directors as
to the consideration received for the shares issued is conclusive in the
absence of actual fraud in the transaction.
2. When the corporation receives the
consideration for which the board of directors authorized the issuance of
shares, the shares issued therefor are fully paid.
3. The corporation may place in escrow
shares issued for a contract for future services or benefits or a promissory
note, or make any other arrangements to restrict the transfer of the shares.
The corporation may credit distributions made for the shares against their
purchase price, until the services are performed, the benefits are received or the
promissory note is paid. If the services are not performed, the benefits are
not received or the promissory note is not paid, the shares escrowed or
restricted and the distributions credited may be cancelled in whole or in part.
4. For the purposes of this section,
“benefit to the corporation” includes, without limitation, the authorization of
the issuance of shares to up to 100 persons without consideration for the sole
purpose of qualifying the corporation as a real estate investment trust
pursuant to 26 U.S.C. §§ 856 et seq., as amended, or any successor provision,
and any regulations adopted pursuant thereto.
(Added to NRS by 1991, 1186; A 1993, 958; 2001, 1366, 3199; 2005, 2179)
NRS 78.215 Issuance of shares for consideration or as share dividend.
1. A corporation may issue and dispose of
its authorized shares for such consideration as may be prescribed in the
articles of incorporation or, if no consideration is so prescribed, then for
such consideration as may be fixed by the board of directors.
2. If a consideration is prescribed for
shares without par value, that consideration must not be used to determine the
fees required for filing articles of incorporation pursuant to NRS 78.760.
3. Unless the articles of incorporation
provide otherwise, shares may be issued pro rata and without consideration to
the corporation’s stockholders or to the stockholders of one or more classes or
series. An issuance of shares under this subsection is a share dividend.
4. Shares of one class or series may not
be issued as a share dividend in respect of shares of another class or series
unless:
(a) The articles of incorporation so authorize;
(b) A majority of the votes entitled to be cast
by the class or series to be issued approve the issue; or
(c) There are no outstanding shares of the class
or series to be issued.
5. If the board of directors does not fix
the record date for determining stockholders entitled to a share dividend, it
is the date the board of directors authorizes the share dividend.
[13:177:1925; NCL § 1612]—(NRS A 1975, 478; 1991, 1225; 1993, 958)
NRS 78.220 Subscriptions for corporate shares: Payment; default;
irrevocability.
1. Subscriptions to the shares of a
corporation, whether made before or after its organization, must be paid in
full at such time or in such installments at such times as determined by the
board of directors. Any call made by the board of directors for payment on
subscriptions must be uniform as to all shares of the same class or series.
2. If default is made in the payment of
any installment or call, the corporation may proceed to collect the amount due
in the same manner as any debt due the corporation. In addition, the
corporation may sell a sufficient number of the subscriber’s shares at public
auction to pay for the installment or call and any incidental charges incurred as
a result of the sale. No penalty causing a forfeiture of a subscription, of
stock for which a subscription has been signed, or of amounts paid thereon, may
be declared against any subscriber unless the amount due remains unpaid for 30
days after written demand. Such written demand shall be deemed made when it is
mailed by registered or certified mail, return receipt requested, to the
subscriber’s last known address. If any of the subscriber’s shares are sold at
public auction, any excess of the proceeds over the total of the amount due
plus any incidental charges of the sale must be paid to the subscriber or the
subscriber’s legal representative. If an action is brought to recover the
amount due on a subscription or call, any judgment in favor of the corporation
must be reduced by the amount of the net proceeds of any sale by the
corporation of the subscriber’s stock.
3. All stock subject to a delinquent
installment or call and all amounts previously paid by a delinquent subscriber
for the stock must be forfeited to the corporation if an amount due from a
subscriber remains unpaid, the corporation has complied with the requirements
of subsection 2 and:
(a) A bidder does not purchase the subscriber’s
shares at public auction; or
(b) The corporation does not collect the
defaulted amount by an action at law.
4. If a receiver of a corporation has been
appointed, all unpaid subscriptions must be paid at such times and in such
installments as the receiver or the court may direct, subject, however, to the
provisions of the subscription contract.
5. A subscription for shares of a
corporation to be organized is irrevocable for 6 months unless otherwise
provided by the subscription agreement or unless all of the subscribers consent
to the revocation of the subscription.
[14:177:1925; NCL § 1613]—(NRS A 1977, 651; 2001, 1367, 3199; 2003, 3091)
NRS 78.225 Stockholder’s liability: No individual liability except for
payment for which shares were authorized to be issued or which was specified in
subscription agreement. Unless
otherwise provided in the articles of incorporation, no stockholder of any
corporation formed under the laws of this State is individually liable for the
debts or liabilities of the corporation. A purchaser of shares of stock from
the corporation 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 which was specified in the written subscription
agreement.
[15:177:1925; A 1929, 413; NCL § 1614]—(NRS A 1991, 1225)
Nev. Art. 8, § 3NRS 78.225 NRS 78.230 Liability of holder of
stock as collateral security; liability of executors, administrators, guardians
and trustees.
1. No person holding shares in any
corporation as collateral security shall be personally liable as a stockholder.
2. No executor, administrator, guardian or
trustee, unless he or she, without authorization, shall have voluntarily
invested the trust funds in such shares, shall be personally liable as a
stockholder, but the estate and funds in the hands of such executor,
administrator, guardian or trustee shall be liable.
[16:177:1925; NCL § 1615]
NRS 78.235 Stock certificates: Validation; facsimile signatures;
uncertificated shares and informational statements; replacement.
1. Except as otherwise provided in
subsection 4, every stockholder is entitled to have a certificate, signed by
officers or agents designated by the corporation for the purpose, certifying
the number of shares in the corporation owned by the stockholder. A corporation
has no power to issue a certificate in bearer form, and any such certificate
that is issued is void and of no force or effect.
2. Whenever any certificate is
countersigned or otherwise authenticated by a transfer agent or transfer clerk,
and by a registrar, then a facsimile of the signatures of the officers or
agents, the transfer agent or transfer clerk or the registrar of the
corporation may be printed or lithographed upon the certificate in lieu of the
actual signatures. If a corporation uses facsimile signatures of its officers
and agents on its stock certificates, it cannot act as registrar of its own
stock, but its transfer agent and registrar may be identical if the institution
acting in those dual capacities countersigns or otherwise authenticates any
stock certificates in both capacities.
3. If any officer or officers who have
signed, or whose facsimile signature or signatures have been used on, any
certificate or certificates for stock cease to be an officer or officers of the
corporation, whether because of death, resignation or other reason, before the
certificate or certificates have been delivered by the corporation, the
certificate or certificates may nevertheless be adopted by the corporation and
be issued and delivered as though the person or persons who signed the
certificate or certificates, or whose facsimile signature or signatures have
been used thereon, had not ceased to be an officer or officers of the
corporation.
4. Unless otherwise provided in the
articles of incorporation or bylaws, the board of directors may authorize the
issuance of uncertificated shares of some or all of the shares of any or all of
its classes or series. The issuance of uncertificated shares has no effect on
existing certificates for shares until surrendered to the corporation, or on
the respective rights and obligations of the stockholders. Unless otherwise
provided by a specific statute, the rights and obligations of stockholders are
identical whether or not their shares of stock are represented by certificates.
5. Within a reasonable time after the
issuance or transfer of shares without certificates, the corporation shall send
the stockholder a written statement containing the information required on the
certificates pursuant to subsection 1. At least annually thereafter, the
corporation shall provide to its stockholders of record, a written statement
confirming the information contained in the informational statement previously
sent pursuant to this subsection.
6. Unless otherwise provided in the
articles of incorporation or bylaws, a corporation may issue a new certificate
of stock or, if authorized by the board of directors pursuant to subsection 4,
uncertificated shares in place of a certificate previously issued by it and
alleged to have been lost, stolen or destroyed. A corporation may require an
owner or legal representative of an owner of a lost, stolen or destroyed
certificate to give the corporation a bond or other security sufficient to
indemnify it against any claim that may be made against it for the alleged
loss, theft or destruction of a certificate, or the issuance of a new
certificate or uncertificated shares.
[Part 18:177:1925; A 1929, 413; 1937, 8; 1931 NCL §
1617]—(NRS A 1965, 1012; 1987, 579; 1991, 1226; 1993, 959; 2001, 1367, 3199; 2007, 2417)
NRS 78.240 Shares of stock are personal property; transfers. The shares of stock in every corporation shall
be personal property and shall be transferable on the books of the corporation,
in such manner and under such regulations as may be provided in the bylaws, and
as provided in chapter 104 of NRS.
[Part 18:177:1925; A 1929, 413; 1937, 8; 1931 NCL §
1617]—(NRS A 1965, 917)
NRS 78.242 Restrictions on transfer of stock and on amount of stock owned
by person or group of persons.
1. Subject to the limitation imposed by NRS 104.8204, a written restriction on
the transfer or registration of transfer of the stock of a corporation, if
permitted by this section, may be enforced against the holder of the restricted
stock or any successor or transferee of the holder, including an executor,
administrator, trustee, guardian or other fiduciary entrusted with like
responsibility for the person or estate of the holder.
2. A restriction on the transfer or
registration of transfer of the stock of a corporation, or on the amount of a
corporation’s stock that may be owned by a person or group of persons, may be
imposed by the articles of incorporation or by the bylaws or by an agreement
among any number of stockholders or between or among one or more stockholders
and the corporation. No restriction so imposed is binding upon any stockholder
with respect to the shares of stock owned by such stockholder at the time the
restriction is adopted, regardless of any later effective time of such
restriction, unless such stockholder is a party to the agreement or voted in
favor of the restriction.
3. A restriction on the transfer or the
registration of transfer of shares is valid and enforceable against the
transferee of the stockholder if the restriction is not prohibited by other law
and its existence is noted conspicuously on the front or back of the stock
certificate or is contained in the statement of information required by NRS 78.235. Unless so noted, a restriction is not
enforceable against a person without knowledge of the restriction.
4. A restriction on the transfer or
registration of transfer of the stock of a corporation or on the amount of such
stock that may be owned by any person or group of persons is permitted, without
limitation by this enumeration, if it:
(a) Obligates the stockholder first to offer to
the corporation or to any other stockholder or stockholders of the corporation
or to any other person or persons or to any combination of the foregoing a
prior opportunity, to be exercised within a reasonable time, to acquire the
stock;
(b) Obligates the corporation or any stockholder
of the corporation or any other person or any combination of the foregoing to
purchase stock which is the subject of an agreement respecting the purchase and
sale of the stock;
(c) Requires the corporation or any stockholder
or stockholders to:
(1) Consent to any proposed transfer of
the stock;
(2) Approve the proposed transferee of
stock; or
(3) Approve the amount of stock of the
corporation proposed to be acquired by any person or group of persons;
(d) Prohibits or restricts the transfer of the
stock to, or the ownership of stock by, designated persons or classes of
persons, and such designation is not manifestly unreasonable; or
(e) Prohibits or restricts the transfer or
registration of transfer of the stock or the amount of stock of a corporation
that may be owned by a person or group of persons, for any of the following
purposes:
(1) To maintain the corporation’s status
when it is dependent on the number or identity of its stockholders, including, without
limitation, the corporation’s status as an electing small business corporation
under subchapter S of chapter 1 of subtitle A of the United States Internal
Revenue Code, 26 U.S.C. § 1371 et seq., as amended, or any successor provision;
(2) To maintain or preserve the
corporation’s status or exemptions under federal or state laws governing taxes
or securities, including, without limitation, the qualification of the
corporation as a real estate investment trust pursuant to 26 U.S.C. §§ 856 et
seq., as amended, or any successor provision, and any regulations adopted
pursuant thereto;
(3) To maintain or preserve any other
local, state, federal or foreign tax advantage to, or attribute of, the
corporation or its stockholders, including, without limitation, net operating
losses;
(4) To maintain any statutory or
regulatory advantage or to comply with any statutory or regulatory requirements
under applicable local, state, federal or foreign law; or
(5) For any other reasonable purpose.
5. For the purposes of this section,
“stock” includes a security convertible into or carrying an option or other
right to subscribe for or to acquire stock.
(Added to NRS by 1969, 112; A 1991, 1226; 2005, 2180; 2011, 2774)
NRS 78.245 Corporate stocks, bonds and securities not taxed when owned by
nonresidents or foreign corporations. No
stocks, bonds or other securities issued by any corporation organized under
this chapter, nor the income or profits therefrom, nor the transfer thereof by
assignment, descent, testamentary disposition or otherwise, shall be taxed by
this State when such stocks, bonds or other securities shall be owned by
nonresidents of this State or by foreign corporations.
[87:177:1925; A 1929, 413; NCL § 1686]
NRS 78.250 Cancellation of outstanding certificates or change in
informational statements: Issuance of new certificates or statements; order for
surrender of certificates; penalties for failure to comply.
1. When the articles of incorporation are
amended in any way affecting the statements contained in certificates for
outstanding shares or informational statements sent pursuant to NRS 78.235, or it becomes desirable for any reason, in
the discretion of the board of directors, to cancel any outstanding certificate
for shares and issue a new certificate therefor conforming to the rights of the
holder, the board of directors may send additional informational statements as
provided in NRS 78.235 and order any holders of
outstanding certificates for shares to surrender and exchange them for new
certificates within a reasonable time to be fixed by the board of directors.
2. Such an order may provide that the
holder of any certificate so ordered to be surrendered is not entitled to vote
or to receive distributions or exercise any of the other rights of stockholders
of record until the holder of the certificate has complied with the order, but
the order operates to suspend such rights only after notice and until
compliance.
3. The duty to surrender any outstanding
certificates may also be enforced by action at law.
[18a:177:1925; added 1937, 8; 1931 NCL §
1617.01]—(NRS A 1987,
580; 1993,
960)
NRS 78.257 Right of stockholders to inspect, copy and audit financial records;
exceptions; civil and criminal liability; penalty.
1. Any person who has been a stockholder
of record of any corporation and owns not less than 15 percent of all of the
issued and outstanding shares of the stock of such corporation or has been authorized
in writing by the holders of at least 15 percent of all its issued and
outstanding shares, upon at least 5 days’ written demand, is entitled to
inspect in person or by agent or attorney, during normal business hours, the
books of account and all financial records of the corporation, to make copies
of records, and to conduct an audit of such records. Holders of voting trust
certificates representing 15 percent of the issued and outstanding shares of
the corporation are regarded as stockholders for the purpose of this
subsection. The right of stockholders to inspect the corporate records may not
be limited in the articles or bylaws of any corporation.
2. All costs for making copies of records
or conducting an audit must be borne by the person exercising the rights set
forth in subsection 1.
3. The rights authorized by subsection 1
may be denied to any stockholder upon the stockholder’s refusal to furnish the
corporation an affidavit that such inspection, copies or audit is not desired
for any purpose not related to his or her interest in the corporation as a
stockholder. Any stockholder or other person, exercising rights set forth in
subsection 1, who uses or attempts to use information, records or other data
obtained from the corporation, for any purpose not related to the stockholder’s
interest in the corporation as a stockholder, is guilty of a gross misdemeanor.
4. If any officer or agent of any
corporation keeping records in this State willfully neglects or refuses to
permit an inspection of the books of account and financial records upon demand
by a person entitled to inspect them, or refuses to permit an audit to be
conducted, as provided in subsection 1, the corporation shall forfeit to the
State the sum of $100 for every day of such neglect or refusal, and the
corporation, officer or agent thereof is jointly and severally liable to the
person injured for all damages resulting to the person.
5. A stockholder who brings an action or
proceeding to enforce any right set forth in this section or to recover damages
resulting from its denial:
(a) Is entitled to costs and reasonable
attorney’s fees, if the stockholder prevails; or
(b) Is liable for such costs and fees, if the
stockholder does not prevail,
Ê in the
action or proceeding.
6. Except as otherwise provided in this
subsection, the provisions of this section do not apply to any corporation that
furnishes to its stockholders a detailed, annual financial statement or any
corporation that has filed during the preceding 12 months all reports required
to be filed pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934. A person who owns, or is authorized in writing by the owners of,
at least 15 percent of the issued and outstanding shares of the stock of a
corporation that has elected to be governed by subchapter S of the Internal
Revenue Code and whose shares are not listed or traded on any recognized stock
exchange is entitled to inspect the books of the corporation pursuant to
subsection 1 and has the rights, duties and liabilities provided in subsections
2 to 5, inclusive.
(Added to NRS by 1971, 863; A 1977, 659; 1997, 3092; 2001, 1368, 3199; 2003, 3092)
NRS 78.265 Preemptive rights of stockholders in corporations organized
before October 1, 1991.
1. The provisions of this section apply to
corporations organized in this State before October 1, 1991.
2. Except to the extent limited or denied
by this section or the articles of incorporation, shareholders have a
preemptive right to acquire unissued shares, treasury shares or securities
convertible into such shares.
3. Unless otherwise provided in the
articles of incorporation:
(a) A preemptive right does not exist:
(1) To acquire any shares issued to
directors, officers or employees pursuant to approval by the affirmative vote
of the holders of a majority of the shares entitled to vote or when authorized
by a plan approved by such a vote of shareholders;
(2) To acquire any shares sold for a
consideration other than cash;
(3) To acquire any shares issued at the
same time that the shareholder who claims a preemptive right acquired his or
her shares;
(4) To acquire any shares issued as part
of the same offering in which the shareholder who claims a preemptive right
acquired his or her shares; or
(5) To acquire any shares, treasury shares
or securities convertible into such shares, if the shares or the shares into
which the convertible securities may be converted are upon issuance registered
pursuant to section 12 of the Securities Exchange Act of 1934, 15 U.S.C. § 781.
(b) Holders of shares of any class that is
preferred or limited as to dividends or assets are not entitled to any
preemptive right.
(c) Holders of common stock are not entitled to
any preemptive right to shares of any class that is preferred or limited as to
dividends or assets or to any obligations, unless convertible into shares of
common stock or carrying a right to subscribe to or acquire shares of common
stock.
(d) Holders of common stock without voting power
have no preemptive right to shares of common stock with voting power.
(e) The preemptive right is only an opportunity
to acquire shares or other securities upon such terms as the board of directors
fixes for the purpose of providing a fair and reasonable opportunity for the
exercise of such right.
[23:177:1925; NCL § 1622]—(NRS A 1977, 909; 1987, 581; 1991, 1227)
NRS 78.267 Preemptive rights of stockholders in corporations organized on
or after October 1, 1991.
1. The provisions of this section apply to
corporations organized in this State on or after October 1, 1991.
2. The stockholders 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 have the following effects unless the articles of
incorporation otherwise provide:
(a) The stockholders 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 stockholder may waive a 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:
(1) Shares issued as compensation to
directors, officers, agents or employees of the corporation, its subsidiaries
or affiliates;
(2) Shares issued to satisfy rights of
conversion or options created to provide compensation to directors, officers,
agents or employees of the corporation, its subsidiaries or affiliates;
(3) Shares authorized in articles of
incorporation which are issued within 6 months from the effective date of
incorporation; or
(4) Shares sold otherwise 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 stockholders may be issued to any person for 1 year after being
offered to stockholders 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 stockholders’ preemptive rights.
4. As used in this section, “shares”
includes a security convertible into or carrying a right to subscribe for or
acquire shares.
(Added to NRS by 1991, 1187)
NRS 78.275 Assessments on stock: Levy and collection; sale after default in
payment.
1. The directors may at such times and in
such amount, as they may from time to time deem the interest of the corporation
to require, levy and collect assessments upon the assessable stock of the
corporation in the manner provided in this section.
2. Notice of each assessment must be given
to the stockholders personally, or by publication once a week for at least 4
weeks, in some newspaper published in the county in which the principal office
of the corporation is located or, if the principal office of the corporation is
not located in this State, in the county in which the corporation’s registered
office is located, and in a newspaper published in the county wherein the
property of the corporation is situated if in this State.
3. If, after the notice has been given,
any stockholder defaults in the payment of the assessment upon the shares held
by the stockholder, so many of those shares may be sold as will be necessary
for the payment of the assessment upon all the shares held by the stockholder,
together with all costs of advertising and expenses of sale. The sale of the
shares must be made at the office of the corporation at public auction to the
highest bidder, after a notice thereof published for 4 weeks as directed in
this section, and a copy of the notice mailed to each delinquent stockholder if
his or her address is known 4 weeks before the sale. At the sale the person who
offers to pay the assessment so due, together with the expenses of advertising
and sale, for the smallest number of shares, or portion of a share, as the case
may be, shall be deemed the highest bidder.
[Part 74:177:1925; NCL § 1673]—(NRS A 1993, 960; 2007, 2646; 2009, 1678)
NRS 78.280 Purchase by corporation of its own stock at assessment sale when
no other available purchaser.
1. Every corporation in this State may,
whenever at any assessment sale of the stock of the corporation no person will
take the stock and pay the assessment, or amount unpaid and due thereon and
costs, purchase such stock and hold the stock for the benefit of the
corporation.
2. All purchases of its own stock by any
corporation in this State which have been previously made at assessment sales
whereat outside persons have failed to bid, and which purchases were for the
amount of assessments due, and costs or otherwise, are valid, and vest the
legal title to the stock in the corporation.
3. The stock so purchased is subject to
the control of the remaining stockholders, who may dispose of the stock as they
may deem fit.
4. Whenever any portion of the stock of
any corporation is held by the corporation by purchase or otherwise, a majority
of the remaining shares of stock in the corporation is a majority of the shares
of the stock in the incorporated company, for all purposes of election or
voting on any question before a stockholders’ meeting.
[Part 74:177:1925; NCL § 1673]—(NRS A 1993, 2764)
NRS 78.283 Treasury shares: Definition; limitations; retirement and
disposal.
1. As used in this section, “treasury
shares” means shares of a corporation issued and thereafter acquired by the
corporation or another entity, the majority of whose outstanding voting power
to elect its general partner, directors, managers or members of the governing
body is beneficially held, directly or indirectly, by the corporation, which
have not been retired or restored to the status of unissued shares.
2. Treasury shares held by the corporation
do not carry voting rights or participate in distributions, may not be counted
as outstanding shares for any purpose and may not be counted as assets of the
corporation for the purpose of computing the amount available for distributions.
3. Treasury shares held by another entity,
the majority of whose outstanding voting power to elect its general partner,
directors, managers or members of the governing body is beneficially held,
directly or indirectly, by the corporation, do not carry voting rights and,
unless otherwise determined by the board of directors of the corporation, do
not participate in distributions, may not be counted as outstanding shares for
any purpose and may not be counted as assets of the entity.
4. Unless the articles of incorporation
provide otherwise, treasury shares may be retired and restored to the status of
authorized and unissued shares without an amendment to the articles of
incorporation or may be disposed of for such consideration as the board of
directors may determine.
5. This section does not limit the right
of a corporation to vote its shares held by it in a fiduciary capacity.
(Added to NRS by 1959, 682; A 1981, 1890; 1991, 1228; 1997, 701; 2005, 2181)
NRS 78.288 Distributions to stockholders.
1. Except as otherwise provided in
subsection 2 and the articles of incorporation, a board of directors may
authorize and the corporation may make distributions to its stockholders,
including distributions on shares that are partially paid.
2. No distribution may be made if, after
giving it effect:
(a) The corporation would not be able to pay its
debts as they become due in the usual course of business; or
(b) Except as otherwise specifically allowed by
the articles of incorporation, the corporation’s total assets would be less
than the sum of its total liabilities plus the amount that would be needed, if
the corporation were to be dissolved at the time of distribution, to satisfy
the preferential rights upon dissolution of stockholders whose preferential
rights are superior to those receiving the distribution.
3. The board of directors may base a
determination that a distribution is not prohibited pursuant to subsection 2
on:
(a) Financial statements prepared on the basis of
accounting practices that are reasonable in the circumstances;
(b) A fair valuation, including, but not limited
to, unrealized appreciation and depreciation; or
(c) Any other method that is reasonable in the
circumstances.
4. The effect of a distribution pursuant
to subsection 2 must be measured:
(a) In the case of a distribution by purchase,
redemption or other acquisition of the corporation’s shares, as of the earlier
of:
(1) The date money or other property is
transferred or debt incurred by the corporation; or
(2) The date upon which the stockholder
ceases to be a stockholder with respect to the acquired shares.
(b) In the case of any other distribution of
indebtedness, as of the date the indebtedness is distributed.
(c) In all other cases, as of:
(1) The date the distribution is
authorized if the payment occurs within 120 days after the date of
authorization; or
(2) The date the payment is made if it
occurs more than 120 days after the date of authorization.
5. A corporation’s indebtedness to a
stockholder 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 except to the extent subordinated by agreement.
6. Indebtedness of a corporation,
including indebtedness issued as a distribution, is not considered a liability
for purposes of determinations pursuant to subsection 2 if its terms provide
that payment of principal and interest are made only if and to the extent that
payment of a distribution to stockholders could then be made pursuant to this
section. If the indebtedness is issued as a distribution, each payment of
principal or interest must be treated as a distribution, the effect of which
must be measured on the date the payment is actually made.
(Added to NRS by 1991, 1187; A 2001, 1369, 3199)
NRS 78.300 Liability of directors for unlawful distributions.
1. The directors of a corporation shall
not make distributions to stockholders except as provided by this chapter.
2. Except as otherwise provided in
subsection 3 and NRS 78.138, in case of any
violation of the provisions of this section, the directors under whose
administration the violation occurred are jointly and severally liable, at any
time within 3 years after each violation, to the corporation, and, in the event
of its dissolution or insolvency, to its creditors at the time of the
violation, or any of them, to the lesser of the full amount of the distribution
made or of any loss sustained by the corporation by reason of the distribution
to stockholders.
3. The liability imposed pursuant to
subsection 2 does not apply to a director who caused his or her dissent to be
entered upon the minutes of the meeting of the directors at the time the action
was taken or who was not present at the meeting and caused his or her dissent
to be entered on learning of the action.
[75:177:1925; A 1931, 415; 1949, 158; 1943 NCL §
1674]—(NRS A 1987,
83; 1991,
1229; 2001,
3174)
NRS 78.307 “Investment company” and “open-end investment company” defined;
redemption of shares by open-end investment company.
1. As used in this section, unless the context
requires otherwise:
(a) “Investment company” means any corporation,
trust, association or fund which is engaged or proposes to engage in the
business of investing, reinvesting, owning, holding or trading in securities,
and whose assets are invested principally in cash or in securities of other
issuers.
(b) “Open-end investment company” means any
investment company which issues one or more series or classes of securities
under the terms of which the holder of the security, upon presentation thereof
to the issuer, is entitled to receive approximately his or her proportionate
share of the current net assets of the issuer applicable to such series or
class, or the cash equivalent thereof.
2. An open-end investment company may,
from time to time, redeem its shares, in accordance with their terms, at
approximately the proportionate share of the current net assets of the issuer
applicable to such shares, or the cash equivalent thereof.
(Added to NRS by 1961, 174)
MEETINGS, ELECTIONS, VOTING AND NOTICE
NRS 78.310 Stockholders’ and directors’ meetings: Location; authority to
call.
1. Meetings of stockholders and directors
of any corporation organized pursuant to the provisions of this chapter may be
held within or without this State, in the manner provided by the bylaws of the
corporation. The articles of incorporation may designate any place or places
where such stockholders’ or directors’ meetings may be held, but in the absence
of any provision therefor in the articles of incorporation, then the meetings
must be held within or without this State, as directed from time to time by the
bylaws of the corporation.
2. Unless otherwise provided in the
articles of incorporation or bylaws, the entire board of directors, any two
directors or the president may call annual and special meetings of the
stockholders and directors.
[Part 31:177:1925; NCL § 1630]—(NRS A 1993, 961; 2001, 1370, 3199)
NRS 78.315 Directors’ meetings: Quorum; consent for actions taken without
meeting; alternative means for participating at meeting.
1. Unless the articles of incorporation or
the bylaws provide for a greater or lesser proportion, a majority of the board
of directors of the corporation then in office, at a meeting duly assembled, is
necessary to constitute a quorum for the transaction of business, and the act
of directors holding a majority of the voting power of the directors, present
at a meeting at which a quorum is present, is the act of the board of
directors.
2. Unless otherwise restricted by the
articles of incorporation or bylaws, any action required or permitted to be
taken at a meeting of the board of directors or of a committee thereof may be
taken without a meeting if, before or after the action, a written consent
thereto is signed by all the members of the board or of the committee, except
that such written consent is not required to be signed by:
(a) A common or interested director who abstains
in writing from providing consent to the action. If a common or interested
director abstains in writing from providing consent:
(1) The fact of the common directorship,
office or financial interest must be known to the board of directors or
committee before a written consent is signed by all the members of the board of
the committee.
(2) Such fact must be described in the
written consent.
(3) The board of directors or committee
must approve, authorize or ratify the action in good faith by unanimous consent
without counting the abstention of the common or interested director.
(b) A director who is a party to an action, suit
or proceeding who abstains in writing from providing consent to the action of
the board of directors or committee. If a director who is a party to an action,
suit or proceeding abstains in writing from providing consent on the basis that
he or she is a party to an action, suit or proceeding, the board of directors
or committee must:
(1) Make a determination pursuant to NRS 78.751 that indemnification of the director is
proper under the circumstances.
(2) Approve, authorize or ratify the
action of the board of directors or committee in good faith by unanimous
consent without counting the abstention of the director who is a party to an
action, suit or proceeding.
3. Unless otherwise restricted by the
articles of incorporation or bylaws, members of the board of directors or the
governing body of any corporation, or of any committee designated by such board
or body, may participate in a meeting of the board, body or committee through
electronic communications, videoconferencing, teleconferencing or other
available technology if the corporation has implemented reasonable measures to:
(a) Verify the identity of each person participating
through such means as a director or member of the governing body or committee,
as the case may be; and
(b) Provide the directors or members a reasonable
opportunity to participate in the meeting and to vote on matters submitted to
the directors or members, as the case may be, including an opportunity to
communicate and to read or hear the proceedings of the meeting in a
substantially concurrent manner with such proceedings.
4. Participation in a meeting pursuant to
subsection 3 constitutes presence in person at the meeting.
[Part 31:177:1925; NCL § 1630]—(NRS A 1957, 75; 1959,
685; 1977, 412;
1991, 1229;
1993, 961; 1997, 701; 2001, 1370, 3199; 2007, 2418; 2011, 776; 2013, 1270)
NRS 78.320 Stockholders’ meetings: Quorum; consent for actions taken
without meeting; alternative means for participating at meeting.
1. Unless this chapter, the articles of
incorporation or the bylaws provide for different proportions:
(a) A majority of the voting power, which
includes the voting power that is present in person or by proxy, regardless of
whether the proxy has authority to vote on all matters, constitutes a quorum
for the transaction of business; and
(b) Action by the stockholders on a matter other
than the election of directors is approved if the number of votes cast in favor
of the action exceeds the number of votes cast in opposition to the action.
2. Unless otherwise provided in the
articles of incorporation or the bylaws, any action required or permitted to be
taken at a meeting of the stockholders may be taken without a meeting if,
before or after the action, a written consent thereto is signed by stockholders
holding at least a majority of the voting power, except that if a different
proportion of voting power is required for such an action at a meeting, then
that proportion of written consents is required.
3. In no instance where action is
authorized by written consent need a meeting of stockholders be called or
notice given.
4. Unless otherwise restricted by the
articles of incorporation or bylaws, stockholders may participate in a meeting
of stockholders through electronic communications, videoconferencing,
teleconferencing or other available technology if the corporation has
implemented reasonable measures to:
(a) Verify the identity of each person
participating through such means as a stockholder; and
(b) Provide the stockholders a reasonable
opportunity to participate in the meeting and to vote on matters submitted to
the stockholders, including an opportunity to communicate, and to read or hear
the proceedings of the meetings in a substantially concurrent manner with such
proceedings.
5. Participation in a meeting pursuant to
subsection 4 constitutes presence in person at the meeting.
6. Unless this chapter, the articles of
incorporation or the bylaws provide for different proportions, if voting by a
class or series of stockholders is permitted or required:
(a) A majority of the voting power of the class
or series that is present in person or by proxy, regardless of whether the
proxy has authority to vote on all matters, constitutes a quorum for the
transaction of business; and
(b) An act by the stockholders of each class or
series is approved if a majority of the voting power of a quorum of the class
or series votes for the action.
[29(a):177:1925; added 1949, 158; 1943 NCL §
1628.01]—(NRS A 1959, 686; 1987, 581; 1989, 875; 1991, 1229; 1993, 961; 1997, 702; 1999, 1584; 2001, 1371, 3199; 2007, 2419; 2011, 776; 2013, 1271)
NRS 78.325 Actions at meetings not regularly called: Ratification and
approval.
1. Whenever all persons entitled to vote
at any meeting, whether of directors, trustees or stockholders, consent, either
by:
(a) A writing on the records of the meeting or
filed with the secretary;
(b) Presence at such meeting and oral consent
entered on the minutes; or
(c) Taking part in the deliberations at such
meeting without objection,
Ê the doings
of such meeting shall be as valid as if had at a meeting regularly called and
noticed.
2. At such meeting any business may be
transacted which is not excepted from the written consent or to the
consideration of which no objection for want of notice is made at the time.
3. If any meeting be irregular for want of
notice or of such consent, provided a quorum was present at such meeting, the
proceedings of the meeting may be ratified and approved and rendered likewise
valid and the irregularity or defect therein waived by a writing signed by all
parties having the right to vote at such meeting.
4. Such consent or approval of
stockholders or creditors may be by proxy or attorney, but all such proxies and
powers of attorney must be in writing.
[Part 92:177:1925; A 1929, 413; NCL § 1691]
NRS 78.330 Directors: Election; terms; classification; voting power.
1. Unless elected pursuant to NRS 78.320, or unless the articles of incorporation or
the bylaws require more than a plurality of the votes cast, directors of every
corporation must be elected at the annual meeting of the stockholders by a
plurality of the votes cast at the election. Unless otherwise provided in this
chapter or in the bylaws, the board of directors has the authority to set the
date, time and place for the annual meeting of the stockholders. If for any
reason directors are not elected pursuant to NRS 78.320
or at the annual meeting of the stockholders, they may be elected at any
special meeting of the stockholders which is called and held for that purpose.
Unless otherwise provided in the articles of incorporation or bylaws, each
director holds office after the expiration of his or her term until a successor
is elected and qualified, or until the director resigns or is removed.
2. The articles of incorporation or the
bylaws may provide for the classification of directors as to the duration of
their respective terms of office or as to their election by one or more
authorized classes or series of shares, but at least one-fourth in number of
the directors of every corporation must be elected annually. If an amendment
reclassifying the directors would otherwise increase the term of a director,
unless the amendment is to the articles of incorporation and otherwise
provides, the term of each incumbent director on the effective date of the
amendment terminates on the date it would have terminated had there been no
reclassification.
3. The articles of incorporation may
provide that the voting power of individual directors or classes of directors
may be greater than or less than that of any other individual directors or
classes of directors, and the different voting powers may be stated in the
articles of incorporation or may be dependent upon any fact or event that may
be ascertained outside the articles of incorporation if the manner in which the
fact or event may operate on those voting powers is stated in the articles of
incorporation. If the articles of incorporation provide that any directors may
have voting power greater than or less than other directors, every reference in
this chapter to a majority or other proportion of directors shall be deemed to
refer to a majority or other proportion of the voting power of all of the
directors or classes of directors, as may be required by the articles of
incorporation.
[Part 33:177:1925; A 1929, 413; NCL § 1632]—(NRS A
1967, 267; 1979,
215; 1987,
582; 1989,
875; 1993,
962; 1999,
1585; 2001,
1371, 3199;
2007, 2420)
NRS 78.335 Directors: Removal; filling of vacancies.
1. Except as otherwise provided in this
section, any director or one or more of the incumbent directors may be removed
from office by the vote of stockholders representing not less than two-thirds
of the voting power of the issued and outstanding stock entitled to vote.
2. In the case of corporations which have
provided in their articles of incorporation for the election of directors by
cumulative voting, any director or directors who constitute fewer than all of
the incumbent directors may not be removed from office at any one time or as
the result of any one transaction under the provisions of this section except
upon the vote of stockholders owning sufficient shares to prevent each
director’s election to office at the time of removal.
3. The articles of incorporation may
require the concurrence of more than two-thirds of the voting power of the
issued and outstanding stock entitled to vote in order to remove one or more
directors from office.
4. Whenever the holders of any class or
series of shares are entitled to elect one or more directors, unless otherwise
provided in the articles of incorporation, removal of any such director
requires only the proportion of votes, specified in subsection 1, of the
holders of that class or series, and not the votes of the outstanding shares as
a whole.
5. All vacancies, including those caused
by an increase in the number of directors, may be filled by a majority of the
remaining directors, though less than a quorum, unless it is otherwise provided
in the articles of incorporation.
6. Unless otherwise provided in the
articles of incorporation, when one or more directors give notice of
resignation to the board, effective at a future date, the board may fill the
vacancy or vacancies to take effect when the resignation or resignations become
effective, each director so appointed to hold office during the remainder of
the term of office of the resigning director or directors.
7. If the articles or bylaws provide that
the holders of any class or series of shares are entitled to elect one or more
directors under specified circumstances and that, upon termination of those
specified circumstances, the right terminates and the directors elected by the
holders of the class or series of shares are no longer directors, the
termination of a director pursuant to such provisions in the articles or bylaws
shall not be deemed a removal of the director pursuant to this section.
[Part 33:177:1925; A 1929, 413; NCL § 1632]—(NRS A 1989, 875; 1991, 1230; 1993, 962; 1999, 1585; 2003, 3093)
NRS 78.340 Failure to hold election of directors on regular day does not
dissolve corporation. If the
directors shall not be elected on the day designated for the purpose, the
corporation shall not for that reason be dissolved; but every director shall
continue to hold office and discharge the duties of a director until a
successor has been elected.
[34:177:1925; NCL § 1633]
NRS 78.345 Election of directors by order of court upon failure of regular
election.
1. If any corporation fails to elect directors
within 18 months after the last election of directors required by NRS 78.330, the district court has jurisdiction in
equity, upon application of any one or more stockholders holding stock
entitling them to exercise at least 15 percent of the voting power, to order
the election of directors in the manner required by NRS
78.330.
2. The application must be made by
petition filed in the county where the principal office of the corporation is
located or, if the principal office is not located in this State, in the county
in which the corporation’s registered office is located, and must be brought on
behalf of all stockholders desiring to be joined therein. Such notice must be
given to the corporation and the stockholders as the court may direct.
3. The directors elected pursuant to this
section have the same rights, powers and duties and the same tenure of office
as directors elected by the stockholders at the annual meeting held at the time
prescribed therefor, next before the date of the election pursuant to this
section, would have had.
[35:177:1925; NCL § 1634]—(NRS A 1991, 1231; 2007, 2646; 2009, 1678)
NRS 78.347 Application by stockholder for order of court appointing
custodian or receiver; requirements of custodian; authority of custodian;
adoption of regulations by Secretary of State.
1. Any stockholder may apply to the
district court to appoint one or more persons to be custodians of the
corporation, and, if the corporation is insolvent, to be receivers of the
corporation when:
(a) The business of the corporation is suffering
or is threatened with irreparable injury because the directors are so divided
respecting the management of the affairs of the corporation that a required
vote for action by the board of directors cannot be obtained and the
stockholders are unable to terminate this division; or
(b) The corporation has abandoned its business
and has failed within a reasonable time to take steps to dissolve, liquidate or
distribute its assets in accordance with this chapter.
2. An applicant on whose behalf a
stockholder has applied to the district court for a custodianship pursuant to
subsection 1 shall provide the following information, along with an affidavit
attesting that such information is true and correct, to the district court:
(a) A detailed list of all previous applications
to a court in any jurisdiction for a custodianship of a publicly traded
corporation that were filed by the applicant or an affiliate or subsidiary of
the applicant.
(b) If an application listed in paragraph (a) was
approved, a detailed description of the activities performed during the
custodianship by the applicant or the affiliate or subsidiary of the applicant.
(c) A description of the current corporate status
and business operation of any publicly traded corporation for which the
applicant and any affiliate or subsidiary of the applicant has held a
custodianship.
(d) A full disclosure of any and all previous
criminal, administrative, civil or National Association of Securities Dealers,
Inc., or Securities and Exchange Commission investigations, violations or
convictions concerning the applicant and any affiliate or subsidiary of the
applicant.
(e) Evidence of reasonable efforts by the applicant
to contact the officers and directors of the corporation for which the
custodianship is sought.
(f) Evidence of a demand by the applicant to the
officers and directors of the corporation for which the custodianship is sought
that the corporation comply with the provisions of chapter 78
of NRS and that the applicant did not receive a response.
3. The district court shall order any
applicant who is granted custodianship pursuant to this section to:
(a) Comply with the provisions of NRS 78.180 or 80.170,
as applicable. The custodian shall submit evidence of compliance with this
paragraph to the district court.
(b) Provide reasonable notice to all shareholders
of record of a shareholder meeting to be held within a reasonable time after an
application for custodianship or receivership has been granted. The custodian
shall submit evidence of compliance with this paragraph to the district court.
(c) Provide the district court with a report of
the actions taken at the shareholder meeting noticed by the custodian.
(d) Provide the district court with periodic
reports, at intervals to be determined by the court, of the activities of the
custodian and the board of directors and the progress of the corporation.
(e) Provide any other information deemed
necessary by the court.
4. Within 10 days after being appointed
custodian of a Nevada publicly traded corporation, the custodian shall file
with the Secretary of State an amendment to the articles of incorporation
containing the following information:
(a) Disclosures of any previous criminal,
administrative, civil or National Association of Securities Dealers, Inc., or
Securities and Exchange Commission investigations, violations or convictions
concerning the custodian and any affiliate of the custodian.
(b) A statement indicating that:
(1) Reasonable attempts were made to
contact the officers or directors of the corporation to request that the
corporation comply with corporate formalities and to continue its business.
(2) The custodian is in fact continuing
the business and attempting to further the interests of the shareholders.
(3) The custodian will reinstate or
maintain the corporate charter.
(c) Any other information required by regulation
to be submitted to the Secretary of State.
5. The Secretary of State may adopt
regulations to administer the provisions of subsection 4.
6. A custodian appointed pursuant to this
section has all the powers and title of a trustee appointed under NRS 78.590, 78.635 and 78.650, but the authority of the custodian is to
continue the business of the corporation and not to liquidate its affairs or
distribute its assets, except when the district court so orders and except in
cases arising pursuant to paragraph (b) of subsection 1.
(Added to NRS by 1991, 1188; A 2007, 1317)
NRS 78.350 Voting rights of stockholders; determination of stockholders
entitled to notice of and to vote at meeting.
1. Unless otherwise provided in the
articles of incorporation, or in the resolution providing for the issuance of
the stock adopted by the board of directors pursuant to authority expressly
vested in it by the provisions of the articles of incorporation, every
stockholder of record of a corporation is entitled at each meeting of
stockholders thereof to one vote for each share of stock standing in his or her
name on the records of the corporation. If the articles of incorporation, or the
resolution providing for the issuance of the stock adopted by the board of
directors pursuant to authority expressly vested in it by the articles of
incorporation, provides for more or less than one vote per share for any class
or series of shares on any matter, every reference in this chapter to a
majority or other proportion of stock shall be deemed to refer to a majority or
other proportion of the voting power of all of the shares or those classes or
series of shares, as may be required by the articles of incorporation, or in
the resolution providing for the issuance of the stock adopted by the board of
directors pursuant to authority expressly vested in it by the provisions of the
articles of incorporation, or the provisions of this chapter.
2. Unless a period of more than 60 days or
a period of less than 10 days is prescribed or fixed in the articles of
incorporation, the directors may prescribe a period not exceeding 60 days
before any meeting of the stockholders during which no transfer of stock on the
books of the corporation may be made, or may fix, in advance, a record date not
more than 60 or less than 10 days before the date of any such meeting as the
date as of which stockholders entitled to notice of and to vote at such
meetings must be determined. Only stockholders of record on that date are
entitled to notice or to vote at such a meeting. If a record date is not fixed,
the record date is at the close of business on the day before the day on which
the first notice is given or, if notice is waived, at the close of business on
the day before the meeting is held. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders applies to an
adjournment of the meeting unless the board of directors fixes a new record
date for the adjourned meeting. The board of directors must fix a new record
date if the meeting is adjourned to a date more than 60 days later than the
date set for the original meeting.
3. The board of directors may adopt a
resolution prescribing a date upon which the stockholders of record entitled to
give written consent pursuant to NRS 78.320 must be
determined. The date prescribed by the board of directors may not precede or be
more than 10 days after the date the resolution is adopted by the board of
directors. If the board of directors does not adopt a resolution prescribing a
date upon which the stockholders of record entitled to give written consent
pursuant to NRS 78.320 must be determined and:
(a) No prior action by the board of directors is
required by this chapter or chapter 92A of
NRS before the matter is submitted for consideration by the stockholders, the
date is the first date on which any stockholder delivers to the corporation
such consent signed by the stockholder.
(b) Prior action by the board of directors is
required by this chapter or chapter 92A of
NRS before the matter is submitted for consideration by the stockholders, the
date is at the close of business on the day the board of directors adopts the
resolution.
4. The provisions of this section do not
restrict the directors from taking action to protect the interests of the
corporation and its stockholders, including, but not limited to, adopting or
signing plans, arrangements or instruments that grant or deny rights,
privileges, power or authority to a holder or holders of a specified number of
shares or percentage of share ownership or voting power.
[28:177:1925; NCL § 1627]—(NRS A 1965, 1012; 1989, 876; 1991, 1231; 1993, 963; 1999, 1586; 2003, 3094; 2005, 2181; 2009, 1679;
2013, 1272)
NRS 78.352 Voting rights: Persons holding stock in fiduciary capacity;
persons whose stock is pledged; joint owners of stock.
1. A person holding stock in a fiduciary
capacity is entitled to vote the shares so held.
2. A person whose stock is pledged is
entitled to vote, unless in the pledge the pledgor has expressly empowered the
pledgee to vote the stock, in which case only the pledgee or the proxy of the
pledgee may vote the stock.
3. If shares or other securities having
voting power stand of record in the names of two or more persons, whether
fiduciaries, joint tenants, tenants in common or otherwise, or if two or more
persons have the same fiduciary relationship respecting the shares or
securities, unless the secretary of the corporation is given written notice to
the contrary and is furnished with a copy of the instrument or order appointing
them or creating the relationship, their acts with respect to voting have the
following effect:
(a) If only one votes, that person’s act binds
all;
(b) If more than one votes, the act chosen by a
majority of votes binds all; or
(c) If more than one votes, but the vote is
evenly split on any particular matter, each faction may vote the shares or
securities in question proportionally.
(Added to NRS by 2001, 1356; A 2001, 3199)
NRS 78.355 Stockholders’ proxies.
1. Each stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to act for
such stockholder by proxy. If any stockholder designates two or more persons to
act as proxies, a majority of those persons present at the meeting or a
majority of those persons granting consent or exercising a right of dissent in
writing, or, if only one is present or consenting or dissenting in writing,
then that one has and may exercise all of the powers conferred by the
stockholder upon all of the persons so designated unless the stockholder
provides otherwise. The proxy may be limited to action on designated matters.
2. Without limiting the manner in which a
stockholder may authorize another person or persons to act for him or her as
proxy pursuant to subsection 1, a stockholder may sign a writing authorizing
another person or persons to act for him or her as proxy.
3. Any copy, communication by electronic
transmission or other reliable reproduction of the writing created pursuant to
subsection 2 may be substituted for the original writing for any purpose for
which the original writing could be used, if the copy, communication by
electronic transmission or other reproduction is a complete reproduction of the
entire original writing.
4. Except as otherwise provided in
subsection 5, no such proxy is valid after the expiration of 6 months from the
date of its creation unless the stockholder specifies in it the length of time
for which it is to continue in force, which may not exceed 7 years from the
date of its creation. Subject to these restrictions, any proxy properly created
is not revoked and continues in full force and effect until:
(a) Another instrument or transmission revoking
it or a properly created proxy bearing a later date is filed with or
transmitted to the secretary of the corporation or another person or persons
appointed by the corporation to count the votes of stockholders and determine
the validity of proxies and ballots; or
(b) In the case of a meeting of stockholders, the
stockholder revokes the proxy by attending the meeting and voting the
stockholder’s shares in person, in which case, any vote cast by the person or
persons designated by the stockholder to act as a proxy or proxies must be
disregarded by the corporation when the votes are counted.
5. A proxy shall be deemed irrevocable if
the written authorization states that the proxy is irrevocable, but is
irrevocable only for as long as it is coupled with an interest sufficient in
law to support an irrevocable power, including, without limitation, the
appointment as proxy of a pledgee, a person who purchased or agreed to purchase
the shares, a creditor of the corporation who extended it credit under terms
requiring the appointment, an employee of the corporation whose employment
contract requires the appointment or a party to a voting agreement created
pursuant to subsection 3 of NRS 78.365. Unless
otherwise provided in the proxy, a proxy made irrevocable pursuant to this
subsection is revoked when the interest with which it is coupled is
extinguished, but the corporation may honor the proxy until notice of the
extinguishment of the proxy is received by the corporation. A transferee for
value of shares subject to an irrevocable proxy may revoke the proxy if the
transferee did not know of its existence when the transferee acquired the
shares and the existence of the irrevocable appointment was not noted
conspicuously on the certificate representing the shares or on the information
statement for shares without certificates.
6. If any stockholder subject to a
properly created irrevocable proxy attends any meeting of the stockholders or
attempts to grant a consent or exercise a right of dissent for which the
authorization grants authority to act on the stockholder’s behalf at the
meeting, or in granting a consent or exercising a right of dissent, as applicable,
to a proxy or proxies, unless expressly otherwise provided in the written
authorization or electronic record:
(a) Only the proxy or proxies may have and
exercise all the powers of the stockholder at the meeting or in granting a
consent or exercising a right of dissent, as applicable; and
(b) Only a vote, consent or dissent, as
applicable, of the proxy or proxies may be regarded as valid by the
corporation.
[29:177:1925; A 1953, 180]—(NRS A 1991, 1232; 1997, 702; 2003, 3095; 2005, 2182; 2011, 2775)
NRS 78.360 Cumulative voting.
1. The articles of incorporation of any
corporation may provide that at all elections of directors of the corporation
each holder of stock possessing voting power is entitled to as many votes as
equal the number of his or her shares of stock multiplied by the number of
directors to be elected, and that the holder of stock may cast all of his or
her votes for a single director or may distribute them among the number to be
voted for or any two or more of them, as the holder of stock may see fit. To
exercise the right of cumulative voting, one or more of the stockholders
requesting cumulative voting must give written notice to the president or
secretary of the corporation that the stockholder desires that the voting for
the election of directors be cumulative.
2. The notice must be delivered not less
than 48 hours before the time fixed for holding the meeting, if notice of the
meeting has been delivered at least 10 days before the date of the meeting, and
otherwise not less than 24 hours before the meeting. At the meeting, before the
commencement of voting for the election of directors, an announcement of the
delivery of the notice must be made by the chair or the secretary of the
meeting or by or on behalf of the stockholder delivering the notice. Notice to
stockholders of the requirement of this subsection must be contained in the
notice calling the meeting or in the proxy material accompanying the notice.
[30:177:1925; NCL § 1629]—(NRS A 1969, 101; 1991, 1233; 1993, 963; 2011, 2776)
NRS 78.365 Voting trusts.
1. A stockholder, by agreement in writing,
may transfer his or her stock to a voting trustee or trustees for the purpose
of conferring the right to vote the stock for a period not exceeding 15 years
upon the terms and conditions therein stated. Any certificates of stock so
transferred must be surrendered and cancelled and new certificates for the
stock issued to the trustee or trustees in which it must appear that they are
issued pursuant to the agreement, and in the entry of ownership in the proper
books of the corporation that fact must also be noted, and thereupon the trustee
or trustees may vote the stock so transferred during the terms of the
agreement. A duplicate of every such agreement must be filed in the registered
office of the corporation and at all times during its terms be open to
inspection by any stockholder or his or her attorney.
2. At any time within the 2 years next
preceding the expiration of an agreement entered into pursuant to the
provisions of subsection 1, or the expiration of an extension of that
agreement, any beneficiary of the trust may, by written agreement with the
trustee or trustees, extend the duration of the trust for a time not to exceed
15 years after the scheduled expiration date of the original agreement or the
latest extension. An extension is not effective unless the trustee, before the
expiration date of the original agreement or the latest extension, files a
duplicate of the agreement providing for the extension in the registered office
of the corporation. An agreement providing for an extension does not affect the
rights or obligations of any person not a party to that agreement.
3. An agreement between two or more
stockholders, if in writing and signed by them, may provide that in exercising
any voting rights the stock held by them must be voted:
(a) Pursuant to the provisions of the agreement;
(b) As they may subsequently agree; or
(c) In accordance with a procedure agreed upon.
4. An agreement entered into pursuant to
the provisions of subsection 3 is not effective for a term of more than 15
years, but at any time within the 2 years next preceding the expiration of the
agreement the parties thereto may extend its duration for as many additional
periods, each not to exceed 15 years, as they wish.
5. An agreement entered into pursuant to
the provisions of subsection 1 or 3 is not invalidated by the fact that by its
terms its duration is more than 15 years, but its duration shall be deemed
amended to conform with the provisions of this section.
[22:177:1925; A 1929, 413; 1951, 328]—(NRS A 1987, 582; 1989, 976; 1991, 1234; 1993, 964)
NRS 78.370 Notice to stockholders.
1. If under the provisions of this chapter
stockholders are required or authorized to take any action at a meeting, the
notice of the meeting must be in writing.
2. Except in the case of the annual
meeting, the notice must state the purpose or purposes for which the meeting is
called. In all instances, the notice must state the time when, and the place,
which may be within or without this State, where the meeting is to be held, and
the means of electronic communications, if any, by which stockholders and
proxies shall be deemed to be present in person and vote.
3. A copy of the notice must be delivered
personally, mailed postage prepaid or delivered as provided in NRS 75.150 to each stockholder of record
entitled to vote at the meeting not less than 10 nor more than 60 days before
the meeting. If mailed, it must be directed to the stockholder at his or her
address as it appears upon the records of the corporation. Personal delivery of
any such notice to any officer of a corporation or association, to any member
of a limited-liability company managed by its members, to any manager of a
limited-liability company managed by managers, to any general partner of a
partnership or to any trustee of a trust constitutes delivery of the notice to
the corporation, association, limited-liability company, partnership or trust.
4. The articles of incorporation or the
bylaws may require that the notice be also published in one or more newspapers.
5. Notice delivered or mailed to a
stockholder in accordance with the provisions of this section and NRS 75.150 and the provisions, if any, of
the articles of incorporation or the bylaws is sufficient, and in the event of
the transfer of the stockholder’s stock after such delivery or mailing and
before the holding of the meeting it is not necessary to deliver or mail notice
of the meeting to the transferee.
6. Unless otherwise provided in the
articles of incorporation or the bylaws, if notice is required to be delivered,
under any provision of this chapter or the articles of incorporation or bylaws
of any corporation, to any stockholder to whom:
(a) Notice of two consecutive annual meetings,
and all notices of meetings or of the taking of action by written consent
without a meeting to the stockholder during the period between those two
consecutive annual meetings; or
(b) All, and at least two, payments sent by
first-class mail of dividends or interest on securities during a 12-month
period,
Ê have been
mailed addressed to the stockholder at his or her address as shown on the
records of the corporation and have been returned undeliverable, the delivery
of further notices to the stockholder is not required. Any action or meeting
taken or held without notice to such a stockholder has the same effect as if
the notice had been delivered. If any such stockholder delivers to the corporation
a written notice setting forth his or her current address, the requirement that
notice be delivered to the stockholder is reinstated. If the action taken by
the corporation is such as to require the filing of a certificate under any of
the other sections of this chapter, the certificate need not state that notice
was not delivered to persons to whom notice was not required to be delivered
pursuant to this subsection. The delivery of further notices to a stockholder
is still required for any notice returned as undeliverable if the notice was
delivered by electronic transmission.
7. Unless the articles of incorporation or
bylaws otherwise require, and except as otherwise provided in this subsection,
if a stockholders’ meeting is adjourned to another date, time or place, notice
need not be delivered of the date, time or place of the adjourned meeting if
they are announced at the meeting at which the adjournment is taken. If a new
record date is fixed for the adjourned meeting, notice of the adjourned meeting
must be delivered to each stockholder of record as of the new record date.
[27:177:1925; A 1941, 110; 1931 NCL § 1626]—(NRS A 1991, 1235; 1993, 965; 1999, 1587; 2003, 3096; 2011, 2777)
NRS 78.375 Waiver of notice or other communication. Whenever any notice or other communication is
required to be delivered under the provisions of this chapter, a waiver thereof
in a signed writing by the person or persons entitled to the notice or
communication, whether before or after the time stated therein, shall be deemed
equivalent thereto.
[Part 92:177:1925; A 1929, 413; NCL § 1691]—(NRS A 2003, 3098; 2011, 2779)
ACQUISITION OF CONTROLLING INTEREST
NRS 78.378 Applicability; imposition of stricter requirements; protection
of corporation and its stockholders.
1. The provisions of NRS 78.378 to 78.3793,
inclusive, apply to any acquisition of a controlling interest in an issuing
corporation unless the articles of incorporation or bylaws of the corporation
in effect on the 10th day following the acquisition of a controlling interest
by an acquiring person provide that the provisions of those sections do not
apply to the corporation or to an acquisition of a controlling interest
specifically by types of existing or future stockholders, whether or not
identified.
2. The articles of incorporation, the
bylaws or a resolution adopted by the directors of the issuing corporation may
impose stricter requirements on the acquisition of a controlling interest in
the corporation than the provisions of NRS 78.378
to 78.3793, inclusive.
3. The provisions of NRS 78.378 to 78.3793,
inclusive, do not restrict the directors of an issuing corporation from taking
action to protect the interests of the corporation and its stockholders,
including, but not limited to, adopting or signing plans, arrangements or
instruments that grant or deny rights, privileges, power or authority to a
holder or holders of a specified number of shares or percentage of share
ownership or voting power.
(Added to NRS by 1987, 755; A 1989, 877; 1999, 1588; 2003, 3098; 2009, 1680)
NRS 78.3781 Definitions. As
used in NRS 78.378 to 78.3793,
inclusive, unless the context otherwise requires, the words and terms defined
in NRS 78.3782 to 78.3788,
inclusive, have the meanings ascribed to them in those sections.
(Added to NRS by 1987, 756)
NRS 78.3782 “Acquiring person” defined. “Acquiring
person” means any person who, individually or in association with others,
acquires or offers to acquire, directly or indirectly, a controlling interest
in an issuing corporation. The term does not include any person who, in the
ordinary course of business and without an intent to avoid the requirements of NRS 78.378 to 78.3793,
inclusive, acquires voting shares for the benefit of others, in respect of
which the person is not specifically authorized to exercise or direct the
exercise of voting rights.
(Added to NRS by 1987, 756)
NRS 78.3783 “Acquisition” defined.
1. Except as otherwise provided in
subsection 2, “acquisition” means the direct or indirect acquisition of a
controlling interest.
2. “Acquisition” does not include any
acquisition of shares in good faith, and without an intent to avoid the
requirements of NRS 78.378 to 78.3793, inclusive:
(a) By an acquiring person authorized pursuant to
NRS 78.378 to 78.3793,
inclusive, to exercise voting rights, to the extent that the new acquisition
does not result in the acquiring person obtaining a controlling interest
greater than that previously authorized; or
(b) Pursuant to:
(1) The laws of descent and distribution;
(2) The enforcement of a judgment;
(3) The satisfaction of a pledge or other
security interest; or
(4) A merger, exchange, conversion,
domestication or reorganization effected in compliance with the provisions of NRS 78.622, 92A.200
to 92A.240, inclusive, or 92A.270 to which the issuing corporation
is a party.
(Added to NRS by 1987, 756; A 1991, 1236; 1995, 2099; 2001, 1372, 3199)
NRS 78.3784 “Control shares” defined. “Control
shares” means those outstanding voting shares of an issuing corporation which
an acquiring person and those persons acting in association with an acquiring
person:
1. Acquire in an acquisition or offer to
acquire in an acquisition; and
2. Acquire within 90 days immediately
preceding the date when the acquiring person became an acquiring person.
(Added to NRS by 1987, 756)
NRS 78.3785 “Controlling interest” defined. “Controlling
interest” means the ownership of outstanding voting shares of an issuing
corporation sufficient, but for the provisions of NRS
78.378 to 78.3793, inclusive, to enable the
acquiring person, directly or indirectly and individually or in association
with others, to exercise:
1. One-fifth or more but less than
one-third;
2. One-third or more but less than a
majority; or
3. A majority or more,
Ê of all the
voting power of the corporation in the election of directors.
(Added to NRS by 1987, 756)
NRS 78.3786 “Fair value” defined. “Fair
value” means a value not less than the highest price per share paid by the
acquiring person in an acquisition.
(Added to NRS by 1987, 756)
NRS 78.3787 “Interested stockholder” defined. “Interested
stockholder” means a person who directly or indirectly exercises voting rights
in the shares of an issuing corporation and who is:
1. An acquiring person;
2. An officer or a director of the
corporation; or
3. An employee of the corporation.
(Added to NRS by 1987, 757; A 1999, 1588)
NRS 78.3788 “Issuing corporation” defined. “Issuing
corporation” means a corporation which is organized in this State and which:
1. Has 200 or more stockholders of record,
at least 100 of whom have addresses in this State appearing on the stock ledger
of the corporation; and
2. Does business in this State directly or
through an affiliated corporation.
(Added to NRS by 1987, 757; A 1989, 877; 1999, 1588)
NRS 78.3789 Delivery of offeror’s statement by acquiring person; contents of
statement. An acquiring person who
has made or offered to make an acquisition of a controlling interest in an
issuing corporation may deliver an offeror’s statement to the registered office
of the corporation. The acquiring person may request in the statement that the
directors of the corporation call a special meeting of the stockholders of the
corporation, as provided in NRS 78.379. The
statement must set forth:
1. A recital that the statement is given
pursuant to this section;
2. The name of the acquiring person and of
every person associated with him or her in the acquisition;
3. The number of shares in any class of
voting securities owned, as of the date of the statement, by the acquiring
person and each person with whom he or she is associated, or which the
acquiring person intends to acquire;
4. The percentage of the voting securities
of the corporation owned, as of the date of the statement, by the acquiring
person and each person with whom he or she is associated, or which the
acquiring person intends to acquire; and
5. If the acquiring person has not yet
acquired the securities of the corporation, a detailed description of:
(a) The terms and conditions of the proposed
acquisition; and
(b) The means by which any required
consideration, and any indebtedness incurred to consummate the transaction, are
to be paid.
(Added to NRS by 1987, 757; A 1993, 966)
NRS 78.379 Voting rights of acquiring person; meeting of stockholders;
statements to accompany notice of meeting.
1. An acquiring person and those acting in
association with an acquiring person obtain only such voting rights in the
control shares as are conferred by a resolution of the stockholders of the
corporation, approved at a special or annual meeting of the stockholders.
2. If an acquiring person so requests in
an offeror’s statement delivered pursuant to NRS
78.3789, and if the acquiring person gives an undertaking to pay the
expenses of the meeting, the directors of the corporation shall, within 10 days
after delivery of the statement, call a special meeting of the stockholders to
determine the voting rights to be accorded the control shares.
3. A notice of any meeting of stockholders
at which the question of voting rights is to be determined must be accompanied
by:
(a) A complete copy of the offeror’s statement;
and
(b) A statement of the board of directors of the
corporation setting forth the position of the board with respect to the
acquisition or, if it is the case, stating that the board makes no
recommendation concerning the matter.
4. A special meeting of stockholders
called pursuant to this section:
(a) Must not be held before the expiration of 30
days after the delivery of the offeror’s statement, unless the statement
contains a request that the meeting be held sooner.
(b) Must be held within 50 days after the
delivery of the statement, unless the acquiring person otherwise agrees in
writing that the meeting may be held after that time.
5. If the offeror’s statement does not
include a request that a special meeting be called, the question of voting
rights must be presented to the next special or annual meeting of the
stockholders.
(Added to NRS by 1987, 757)
NRS 78.3791 Approval of voting rights of acquiring person. Except as otherwise provided by the articles
of incorporation of the issuing corporation, a resolution of the stockholders
granting voting rights to the control shares acquired by an acquiring person
must be approved by:
1. The holders of a majority of the voting
power of the corporation; and
2. If the acquisition would adversely
alter or change any preference or any relative or other right given to any
other class or series of outstanding shares, the holders of a majority of each
class or series affected,
Ê excluding
those shares as to which any interested stockholder exercises voting rights.
(Added to NRS by 1987, 758; A 1991, 1236; 1999, 1589; 2001, 1372, 3199; 2003, 3098)
NRS 78.3792 Redemption of control shares.
1. If so provided in the articles of
incorporation or the bylaws of the issuing corporation in effect on the 10th
day following the acquisition of a controlling interest by an acquiring person,
the issuing corporation may call for redemption of not less than all the
control shares at the average price paid for the control shares, if:
(a) An offeror’s statement is not delivered with
respect to the acquisition as provided in NRS 78.3789
on or before the 10th day after the acquisition of the control shares; or
(b) An offeror’s statement is delivered, but the
control shares are not accorded full voting rights by the stockholders.
2. The issuing corporation shall call for
redemption within 30 days after the occurrence of the event prescribed in
paragraph (a) or (b) of subsection 1, and the shares must be redeemed within 60
days after the call.
(Added to NRS by 1987, 758; A 1989, 877)
NRS 78.3793 Rights of dissenting stockholders. Unless
otherwise provided in the articles of incorporation or the bylaws of the
issuing corporation in effect on the 10th day following the acquisition of a controlling
interest by an acquiring person, if the control shares are accorded full voting
rights pursuant to NRS 78.378 to 78.3793, inclusive, and the acquiring person has
acquired control shares with a majority or more of all the voting power, any
stockholder, as that term is defined in NRS
92A.325, other than the acquiring person, whose shares are not voted in
favor of authorizing voting rights for the control shares may dissent in
accordance with the provisions of NRS
92A.300 to 92A.500, inclusive,
and obtain payment of the fair value of his or her shares.
(Added to NRS by 1987, 758; A 1989, 877; 1993, 966; 2001, 1373, 3199)
AMENDMENT AND RESTATEMENT OF ARTICLES OF INCORPORATION
NRS 78.380 Amendment of articles before issuance of voting stock.
1. At least two-thirds of the
incorporators or of the board of directors of any corporation, if no voting
stock of the corporation has been issued, may amend the articles of
incorporation of the corporation by signing and filing with the Secretary of
State a certificate amending, modifying, changing or altering the articles, in
whole or in part. The certificate must state that:
(a) The signers thereof are at least two-thirds
of the incorporators or of the board of directors of the corporation, and state
the name of the corporation; and
(b) As of the date of the certificate, no voting
stock of the corporation has been issued.
2. A certificate filed pursuant to this
section is effective at the time of the filing of the certificate with the
Secretary of State or upon a later date and time as specified in the
certificate, which date must not be more than 90 days after the date on which
the certificate is filed. If a certificate filed pursuant to this section
specifies a later effective date but does not specify an effective time, the
certificate is effective at 12:01 a.m. in the Pacific time zone on the
specified later date.
3. If a certificate specifies a later
effective date and if no voting stock of the corporation has been issued, the
board of directors may terminate the effectiveness of a certificate by filing a
certificate of termination with the Secretary of State that:
(a) Is filed before the effective date specified
in the certificate filed with the Secretary of State pursuant to subsection 1;
(b) Identifies the certificate being terminated;
(c) States that no voting stock of the
corporation has been issued;
(d) States that the effectiveness of the
certificate has been terminated;
(e) Is signed by at least two-thirds of the board
of directors of the corporation; and
(f) Is accompanied by the fee required pursuant
to NRS 78.765.
4. This section does not permit the
insertion of any matter not in conformity with this chapter.
[Part 6:177:1925; A 1951, 28]—(NRS A 1959, 686; 1991, 1236; 1993, 966; 1999, 1589; 2001, 1373, 3199; 2003, 3099; 2005, 2184; 2011, 2779)
NRS 78.385 Scope of amendments.
1. Any corporation may amend its articles
of incorporation in any of the following respects:
(a) By addition to its corporate powers and
purposes, or diminution thereof, or both.
(b) By substitution of other powers and purposes,
in whole or in part, for those prescribed by its articles of incorporation.
(c) By increasing, decreasing or reclassifying
its authorized stock, by changing the number, par value, preferences, or
relative, participating, optional or other rights, or the qualifications,
limitations or restrictions of such rights, of its shares, or of any class or
series of any class thereof whether or not the shares are outstanding at the
time of the amendment, or by changing shares with par value, whether or not the
shares are outstanding at the time of the amendment, into shares without par
value or by changing shares without par value, whether or not the shares are
outstanding at the time of the amendment, into shares with par value, either
with or without increasing or decreasing the number of shares, and upon such
basis as may be set forth in the certificate of amendment.
(d) By changing the name of the corporation.
(e) By making any other change or alteration in
its articles of incorporation that may be desired.
2. All such changes or alterations may be
effected by one certificate of amendment, but any articles of incorporation so
amended, changed or altered may contain only such provisions as it would be
lawful and proper to insert in original articles of incorporation pursuant to NRS 78.035 and 78.037, if
the original articles were signed and filed at the time of making the
amendment.
[Part 7:177:1925; A 1931, 415; 1937, 8; 1949, 158;
1943 NCL § 1606]—(NRS A 1989, 878; 1991, 1237; 1999, 1589; 2003, 3099)
NRS 78.390 Amendment of articles after issuance of stock: Procedure.
1. Except as otherwise provided in NRS 77.340, every amendment to the
articles of incorporation must be made in the following manner:
(a) The board of directors must adopt a
resolution setting forth the amendment proposed and either call a special
meeting of the stockholders entitled to vote on the amendment or direct that
the proposed amendment be considered at the next annual meeting of the
stockholders entitled to vote on the amendment.
(b) At the meeting, of which notice must be given
to each stockholder entitled to vote pursuant to the provisions of this
section, a vote of the stockholders entitled to vote in person or by proxy must
be taken for and against the proposed amendment. If it appears upon the
canvassing of the votes that stockholders holding shares in the corporation entitling
them to exercise at least a majority of the voting power, or such greater
proportion of the voting power as may be required in the case of a vote by
classes or series, as provided in subsections 2 and 4, or as may be required by
the provisions of the articles of incorporation, have voted in favor of the
amendment, an officer of the corporation shall sign a certificate setting forth
the amendment, or setting forth the articles of incorporation as amended, and
the vote by which the amendment was adopted.
(c) The certificate so signed must be filed with
the Secretary of State.
2. Except as otherwise provided in this
subsection, if any proposed amendment would adversely alter or change any
preference or any relative or other right given to any class or series of
outstanding shares, then the amendment must be approved by the vote, in
addition to the affirmative vote otherwise required, of the holders of shares
representing a majority of the voting power of each class or series adversely
affected by the amendment regardless of limitations or restrictions on the
voting power thereof. The amendment does not have to be approved by the vote of
the holders of shares representing a majority of the voting power of each class
or series whose preference or rights are adversely affected by the amendment if
the articles of incorporation specifically deny the right to vote on such an
amendment.
3. Provision may be made in the articles
of incorporation requiring, in the case of any specified amendments, a larger
proportion of the voting power of stockholders than that required by this
section.
4. Different series of the same class of
shares do not constitute different classes of shares for the purpose of voting
by classes except when the series is adversely affected by an amendment in a
different manner than other series of the same class.
5. The resolution of the stockholders
approving the proposed amendment may provide that at any time before the
effective date of the amendment, notwithstanding approval of the proposed
amendment by the stockholders, the board of directors may, by resolution,
abandon the proposed amendment without further action by the stockholders.
6. A certificate filed pursuant to
subsection 1 is effective at the time of the filing of the certificate with the
Secretary of State or upon a later date and time as specified in the
certificate, which date must not be more than 90 days after the date on which
the certificate is filed. If a certificate filed pursuant to subsection 1
specifies a later effective date but does not specify an effective time, the
certificate is effective at 12:01 a.m. in the Pacific time zone on the
specified later date.
7. If a certificate filed pursuant to
subsection 1 specifies a later effective date and if the resolution of the
stockholders approving the proposed amendment provides that the board of
directors may abandon the proposed amendment pursuant to subsection 5, the
board of directors may terminate the effectiveness of the certificate by
resolution and by filing a certificate of termination with the Secretary of
State that:
(a) Is filed before the effective date specified
in the certificate filed with the Secretary of State pursuant to subsection 1;
(b) Identifies the certificate being terminated;
(c) States that, pursuant to the resolution of
the stockholders, the board of directors is authorized to terminate the
effectiveness of the certificate;
(d) States that the effectiveness of the
certificate has been terminated;
(e) Is signed by an officer of the corporation;
and
(f) Is accompanied by a filing fee of $175.
[Part 7:177:1925; A 1931, 415; 1937, 8; 1949, 158;
1943 NCL § 1606]—(NRS A 1959, 686; 1971, 1101; 1979, 395; 1991, 1238; 1993, 967; 1997, 703; 1999, 1590; 2001, 1374, 3174, 3196, 3199; 2003, 225, 3100; 2003, 20th
Special Session, 34; 2005, 2184; 2007, 2647; 2011, 2780)
NRS 78.403 Restatement of articles.
1. A corporation may restate, or amend and
restate, in a single certificate the entire text of its articles of
incorporation as amended by filing with the Secretary of State a certificate in
the manner provided in this section. If the certificate alters or amends the
articles in any manner, it must comply with the provisions of NRS 78.380, 78.385 and 78.390, as applicable.
2. If the certificate does not alter or
amend the articles, it must be signed by an officer of the corporation and
state that the officer has been authorized to sign the certificate by
resolution of the board of directors adopted on the date stated, and that the
certificate correctly sets forth the text of the articles of incorporation as
amended to the date of the certificate.
3. The following may be omitted from the
restated articles:
(a) The names, addresses, signatures and
acknowledgments of the incorporators;
(b) The names and addresses of the members of the
past and present boards of directors; and
(c) The information required pursuant to NRS 77.310.
4. Whenever a corporation is required to
file a certified copy of its articles, in lieu thereof it may file a certified
copy of the most recent certificate restating its articles as amended, subject
to the provisions of subsection 2, together with certified copies of all
certificates of amendment filed subsequent to the restated articles and
certified copies of all certificates supplementary to the original articles.
5. A certificate filed pursuant to this
section is effective at the time of the filing of the certificate with the
Secretary of State or upon a later date and time as specified in the certificate,
which date must not be more than 90 days after the date on which the
certificate is filed. If a certificate filed pursuant to this section specifies
a later effective date but does not specify an effective time, the certificate
is effective at 12:01 a.m. in the Pacific time zone on the specified later
date.
(Added to NRS by 1959, 682; A 1985, 1789; 1989, 977; 1995, 2100; 1997, 704; 2001, 1375, 3199; 2003, 3101; 2003, 20th
Special Session, 35; 2005, 2186; 2007, 2648; 2011, 2781)
COMBINATIONS WITH INTERESTED STOCKHOLDERS
NRS 78.411 Definitions. As
used in NRS 78.411 to 78.444,
inclusive, unless the context otherwise requires, the words and terms defined
in NRS 78.412 to 78.432,
inclusive, have the meanings ascribed to them in those sections.
(Added to NRS by 1991, 1200; A 2011, 2782)
NRS 78.412 “Affiliate” defined. “Affiliate”
means a person that directly, or indirectly through one or more intermediaries,
is controlled by, or is under common control with, a specified person.
(Added to NRS by 1991, 1200)
NRS 78.413 “Associate” defined. “Associate,”
when used to indicate a relationship with any person, means:
1. Any corporation or organization of
which that person is an officer or partner or is, directly or indirectly, the
beneficial owner of 10 percent or more of any class of voting shares;
2. Any trust or other estate in which that
person has a substantial beneficial interest or as to which that person serves
as trustee or in a similar fiduciary capacity; and
3. Any relative or spouse of that person,
or any relative of the spouse, who has a common principal residence with that
person.
(Added to NRS by 1991, 1200; A 2011, 2782)
NRS 78.414 “Beneficial owner” defined. “Beneficial
owner,” when used with respect to any shares, means a person that:
1. Individually or with or through any of
its affiliates or associates, possesses:
(a) Voting power over the shares, including,
without limitation, the power to vote, or to direct the voting of, the shares;
or
(b) Investment power over the shares, including,
without limitation, the power to dispose, or to direct the disposition, of the
shares,
Ê under any
agreement, arrangement or understanding, whether or not in writing, but a
person is not considered the beneficial owner of any shares under this
subsection if the power to vote, or to direct the voting of, the shares arises
solely from a revocable proxy or consent given in response to a solicitation
made in accordance with the applicable regulations under the Securities
Exchange Act and is not then reportable on a Schedule 13D under the Securities
Exchange Act or any comparable or successor report;
2. Individually or with or through any of
its affiliates or associates, has the right to acquire the shares, whether the
right is exercisable immediately or only after the passage of time, under any
agreement, arrangement or understanding, whether or not in writing, or upon the
exercise of rights to convert or exchange, warrants or options, or otherwise,
but a person is not considered the beneficial owner of shares tendered under an
offer for a tender or exchange made by the person or any of the person’s affiliates
or associates until the tendered shares are accepted for purchase or exchange;
or
3. Has any agreement, arrangement or
understanding, whether or not in writing, for the purpose of acquiring,
holding, voting, except voting under a revocable proxy or consent as described
in subsection 1, or disposing of the shares with any other person who
beneficially owns, or whose affiliates or associates beneficially own, directly
or indirectly, the shares.
(Added to NRS by 1991, 1200; A 2011, 2782)
NRS 78.416 “Combination” defined. “Combination,”
when used in reference to any resident domestic corporation and any interested
stockholder of the resident domestic corporation, means any of the following:
1. Any merger or consolidation of the
resident domestic corporation or any subsidiary of the resident domestic
corporation with:
(a) The interested stockholder; or
(b) Any other entity, whether or not itself an
interested stockholder of the resident domestic corporation, which is, or after
and as a result of the merger or consolidation would be, an affiliate or
associate of the interested stockholder.
2. Any sale, lease, exchange, mortgage,
pledge, transfer or other disposition, in one transaction or a series of
transactions, to or with the interested stockholder or any affiliate or
associate of the interested stockholder of assets of the resident domestic
corporation or any subsidiary of the resident domestic corporation:
(a) Having an aggregate market value equal to
more than 5 percent of the aggregate market value of all the assets, determined
on a consolidated basis, of the resident domestic corporation;
(b) Having an aggregate market value equal to
more than 5 percent of the aggregate market value of all the outstanding voting
shares of the resident domestic corporation; or
(c) Representing more than 10 percent of the
earning power or net income, determined on a consolidated basis, of the
resident domestic corporation.
3. The issuance or transfer by the
resident domestic corporation or any subsidiary of the resident domestic
corporation, in one transaction or a series of transactions, of any shares of
the resident domestic corporation or any subsidiary of the resident domestic
corporation that have an aggregate market value equal to 5 percent or more of
the aggregate market value of all the outstanding voting shares of the resident
domestic corporation to the interested stockholder or any affiliate or
associate of the interested stockholder except under the exercise of warrants
or rights to purchase shares offered, or a dividend or distribution paid or
made, pro rata to all stockholders of the resident domestic corporation.
4. The adoption of any plan or proposal
for the liquidation or dissolution of the resident domestic corporation under any
agreement, arrangement or understanding, whether or not in writing, with the
interested stockholder or any affiliate or associate of the interested
stockholder.
5. Except for any transaction or series of
transactions that would not constitute a combination pursuant to subsection 3,
any:
(a) Reclassification of securities, including,
without limitation, any splitting of shares, share dividend, or other
distribution of shares with respect to other shares, or any issuance of new
shares in exchange for a proportionately greater number of old shares;
(b) Recapitalization of the resident domestic
corporation;
(c) Merger or consolidation of the resident
domestic corporation with any subsidiary of the resident domestic corporation;
or
(d) Other transaction, whether or not with or
into or otherwise involving the interested stockholder,
Ê under any
agreement, arrangement or understanding, whether or not in writing, with the
interested stockholder or any affiliate or associate of the interested
stockholder, which has the immediate and proximate effect of increasing the
proportionate share of the outstanding shares of any class or series of voting
shares or securities convertible into voting shares of the resident domestic
corporation or any subsidiary of the resident domestic corporation which is
beneficially owned by the interested stockholder or any affiliate or associate
of the interested stockholder, except as a result of immaterial changes because
of adjustments of fractional shares.
6. Any receipt by the interested
stockholder or any affiliate or associate of the interested stockholder of the
benefit, directly or indirectly, except proportionately as a stockholder of the
resident domestic corporation, of any loan, advance, guarantee, pledge or other
financial assistance or any tax credit or other tax advantage provided by or
through the resident domestic corporation.
(Added to NRS by 1991, 1200; A 2009, 1680;
2011, 2783)
NRS 78.417 “Common shares” defined. “Common
shares” means any shares other than preferred shares.
(Added to NRS by 1991, 1202)
NRS 78.418 “Control,” “controlling,” “controlled by” and “under common
control with” defined; presumption of control.
1. Except as otherwise provided in
subsection 2:
(a) “Control,” used alone or in the terms
“controlling,” “controlled by” and “under common control with,” means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person, whether through the ownership
of voting securities, by contract or otherwise.
(b) A person’s beneficial ownership of 10 percent
or more of the voting power of a corporation’s outstanding voting shares
creates a presumption that the person has control of the corporation:
(1) In the absence of proof by a
preponderance of the evidence to the contrary; or
(2) Unless any other stockholder of the
corporation, other than an affiliate or associate of the person, is the
beneficial owner of an equal or greater percentage of the voting power of the
corporation’s outstanding voting shares.
2. A person is not considered to have
control of a corporation if the person holds voting power, in good faith and
not for the purpose of circumventing the provisions of this chapter, as an
agent, bank, broker, nominee, custodian or trustee for one or more beneficial
owners who do not individually or as a group have control of the corporation.
(Added to NRS by 1991, 1202; A 2011, 2784)
NRS 78.421 “Date of announcement” defined. “Date
of announcement,” when used in reference to any combination, means the date of
the first public announcement of the final, definitive proposal for the
combination.
(Added to NRS by 1991, 1202)
NRS 78.422 “Date of consummation” defined. “Date
of consummation,” with respect to any combination, means the date of the
consummation of the combination or, in the case of a combination as to which a
vote of stockholders is taken, the later of:
1. The business day before the vote; or
2. Twenty days before the date of
consummation of the combination.
(Added to NRS by 1991, 1202)
NRS 78.423 “Interested stockholder” defined.
1. “Interested stockholder,” when used in
reference to any resident domestic corporation, means any person, other than
the resident domestic corporation or any subsidiary of the resident domestic
corporation, who is:
(a) The beneficial owner, directly or indirectly,
of 10 percent or more of the voting power of the outstanding voting shares of
the resident domestic corporation; or
(b) An affiliate or associate of the resident
domestic corporation and at any time within 2 years immediately before the date
in question was the beneficial owner, directly or indirectly, of 10 percent or
more of the voting power of the then outstanding shares of the resident
domestic corporation.
2. To determine whether a person is an
interested stockholder, the number of voting shares of the resident domestic
corporation considered to be outstanding includes shares considered to be
beneficially owned by that person through the application of NRS 78.414, but does not include any other unissued
shares of a class of voting shares of the resident domestic corporation which
may be issuable to any person, other than the interested stockholder and its
affiliates and associates, under any agreement, arrangement or understanding,
or upon exercise of rights to convert, warrants or options, or otherwise.
(Added to NRS by 1991, 1202; A 1993, 968; 2011, 2784)
NRS 78.424 “Market value” defined. “Market
value,” when used in reference to the shares or property of any resident
domestic corporation, means:
1. In the case of shares, the highest
closing sale price of a share during the 30 calendar days immediately preceding
the date in question on the principal United States securities exchange
registered under the Securities Exchange Act on which the shares are listed,
or, if the shares are not listed on any such exchange, the fair market value on
the date in question of a share as determined by the board of directors of the
resident domestic corporation in good faith.
2. In the case of property other than cash
or shares, the fair market value of the property on the date in question as
determined by the board of directors of the resident domestic corporation in
good faith.
(Added to NRS by 1991, 1203; A 2009, 1681;
2011, 2785)
NRS 78.426 “Preferred shares” defined. “Preferred
shares” means any class or series of shares of a resident domestic corporation
that under the articles of incorporation of the resident domestic corporation:
1. Is entitled to receive payment of
dividends before any payment of dividends on some other class or series of
shares; or
2. Is entitled in the event of any
voluntary liquidation, dissolution or winding up of the corporation to receive
payment or distribution of a preferential amount before any payments or
distributions are received by some other class or series of shares.
(Added to NRS by 1991, 1203; A 2011, 2785)
NRS 78.4265 “Publicly traded corporation” defined. “Publicly
traded corporation” means a domestic corporation that has a class or series of
voting shares which is:
1. A covered security under section
18(b)(1)(A) or (B) of the Securities Act of 1933, 15 U.S.C. § 77r(b)(1)(A) or
(B), as amended; or
2. Traded in an organized market and that
has at least 2,000 stockholders and a market value of at least $20,000,000,
exclusive of the value of such shares held by the corporation’s subsidiaries,
senior executives, directors and beneficial stockholders owning more than 10
percent of such shares.
(Added to NRS by 2011, 2769)
NRS 78.427 “Resident domestic corporation” defined.
1. “Resident domestic corporation” is
limited to a domestic corporation that has 200 or more stockholders of record.
2. A resident domestic corporation does
not cease to be a resident domestic corporation by reason of events occurring
or actions taken while the resident domestic corporation is subject to NRS 78.411 to 78.444,
inclusive.
(Added to NRS by 1991, 1203; A 1999, 1591)
NRS 78.428 “Securities Exchange Act” defined. “Securities
Exchange Act” means the Act of Congress known as the Securities Exchange Act of
1934, as amended, 15 U.S.C. §§ 78a et seq.
(Added to NRS by 1991, 1203)
NRS 78.429 “Share” defined. “Share”
means:
1. Any share of stock or similar security,
any certificate of interest, any participation in any profit-sharing agreement,
any voting-trust certificate, or any certificate of deposit for a share, in
each case representing, directly or indirectly, equity ownership; and
2. Any security convertible, with or
without consideration, into shares, or any warrant, call or other option or
privilege of buying shares without being bound to do so, or any other security
carrying any right to acquire, subscribe to, or purchase shares.
(Added to NRS by 1991, 1203; A 2011, 2785)
NRS 78.431 “Subsidiary” defined. “Subsidiary”
of any resident domestic corporation means any other entity of which a majority
of the voting power is held, directly or indirectly, by the resident domestic
corporation.
(Added to NRS by 1991, 1203; A 2011, 2785)
NRS 78.432 “Voting shares” defined. “Voting
shares” means shares of stock of a corporation entitled to vote generally in
the election of directors.
(Added to NRS by 1991, 1204)
NRS 78.433 Applicability: Generally.
1. NRS 78.411
to 78.444, inclusive, do not apply to any
combination of a resident domestic corporation:
(a) Which was not, as of the date that the person
first becomes an interested stockholder, a publicly traded corporation, unless
the corporation’s articles of incorporation provide otherwise.
(b) Whose articles of incorporation have been
amended to provide that the resident domestic corporation is subject to NRS 78.411 to 78.444,
inclusive, and which was not a publicly traded corporation on the effective
date of the amendment, if the combination is with a person who first became an
interested stockholder before the effective date of the amendment.
2. The articles of incorporation of a
resident domestic corporation may impose on combinations of the resident
domestic corporation stricter requirements than the requirements of NRS 78.411 to 78.444,
inclusive.
3. The provisions of NRS 78.411 to 78.444,
inclusive, do not restrict the directors of a resident domestic corporation
from taking action to protect the interests of the corporation and its
stockholders, including, without limitation, adopting or signing plans,
arrangements or instruments that grant or deny rights, privileges, power or
authority to a holder or holders of a specified number of shares or percentage
of share ownership or voting power.
(Added to NRS by 1991, 1206; A 2003, 3101; 2011, 2786)
NRS 78.434 Applicability: Election not to be governed by provisions. NRS 78.411 to 78.444, inclusive, do not apply to any combination of
a resident domestic corporation:
1. Whose original articles of
incorporation contain a provision expressly electing not to be governed by NRS 78.411 to 78.444,
inclusive, unless the articles of incorporation are subsequently amended to
provide that the corporation is subject to NRS 78.411
to 78.444, inclusive;
2. Whose articles of incorporation have
been amended pursuant to subsection 1 and the combination is with a person who
first became an interested stockholder before the effective date of the
amendment;
3. Which, within 30 days after October 1,
1991, adopts an amendment to its bylaws expressly electing not to be governed
by NRS 78.411 to 78.444,
inclusive, which may be rescinded by subsequent amendment of the bylaws;
4. Which adopts an amendment to its
articles of incorporation, approved by the affirmative vote of the holders of
stock representing a majority of the outstanding voting power of the resident
domestic corporation not beneficially owned by interested stockholders or their
affiliates and associates, expressly electing not to be governed by NRS 78.411 to 78.444,
inclusive, but the amendment to the articles of incorporation is not effective
until 18 months after the vote of the resident domestic corporation’s
stockholders and does not apply to any combination of the resident domestic
corporation with a person who first became an interested stockholder on or
before the effective date of the amendment; or
5. Whose articles of incorporation were
amended to contain a provision expressly electing not to be governed by NRS 78.411 to 78.444,
inclusive, before the date the corporation first became a resident domestic
corporation.
(Added to NRS by 1991, 1206; A 2003, 3102; 2011, 2786)
NRS 78.436 Applicability: Combination with inadvertent interested
stockholder. NRS 78.411 to 78.444,
inclusive, do not apply to any combination of a resident domestic corporation
with an interested stockholder of the resident domestic corporation who became
an interested stockholder inadvertently, if the interested stockholder:
1. As soon as practicable and before the
date of consummation with respect to the combination, divests a sufficient
amount of the voting power of the corporation so that the interested
stockholder no longer is the beneficial owner, directly or indirectly, of 10
percent or more of the outstanding voting power of the resident domestic
corporation; and
2. Would not at any time within 12 months
preceding the date of announcement with respect to the combination have been an
interested stockholder but for the inadvertent acquisition.
(Added to NRS by 1991, 1207; A 1993, 968; 2011, 2787)
NRS 78.437 Applicability: Combination with interested stockholder as of
certain date. NRS 78.411 to 78.444,
inclusive, do not apply to any combination with an interested stockholder who:
1. Was an interested stockholder on January
1, 1991; or
2. First became an interested stockholder
on the date that the resident domestic corporation first became a resident
domestic corporation solely as a result of the corporation becoming a resident
domestic corporation.
(Added to NRS by 1991, 1207; A 2003, 3102; 2009, 1682)
NRS 78.438 Combination prohibited within 2 years after stockholder becomes
interested; exception; action on proposal.
1. Except as otherwise provided in NRS 78.433 to 78.437,
inclusive, a resident domestic corporation may not engage in any combination
with any interested stockholder of the resident domestic corporation for 2
years after the date that the person first became an interested stockholder
unless:
(a) The combination or the transaction by which
the person first became an interested stockholder is approved by the board of
directors of the resident domestic corporation before the person first became
an interested stockholder; or
(b) The combination is approved by the board of
directors of the resident domestic corporation and, at or after that time, the
combination is approved at an annual or special meeting of the stockholders of
the resident domestic corporation, and not by written consent, by the
affirmative vote of the holders of stock representing at least 60 percent of
the outstanding voting power of the resident domestic corporation not
beneficially owned by the interested stockholder or the affiliates or
associates of the interested stockholder.
2. If a proposal in good faith regarding a
combination is made in writing to the board of directors of the resident
domestic corporation, the board of directors shall respond, in writing, within
30 days or such shorter period, if any, as may be required by the Securities
Exchange Act, setting forth its reasons for its decision regarding the
proposal.
3. If a proposal in good faith to enter
into a transaction by which the person will become an interested stockholder is
made in writing to the board of directors of the resident domestic corporation,
the board of directors, unless it responds affirmatively in writing within 30
days or such shorter period, if any, as may be required by the Securities
Exchange Act, is considered to have disapproved the transaction.
(Added to NRS by 1991, 1204; A 1993, 968; 2003, 3102; 2009, 1682;
2011, 2787)
NRS 78.439 Authorized combinations: General requirements. A resident domestic corporation may not engage
in any combination with an interested stockholder of the resident domestic
corporation after the expiration of 2 years after the person first became an
interested stockholder other than a combination meeting all of the requirements
of the articles of incorporation of the resident domestic corporation and
either the requirements specified in subsection 1, 2 or 3 or all of the
requirements specified in NRS 78.441 to 78.444, inclusive:
1. The combination was approved by the
board of directors of the resident domestic corporation before such person
first became an interested stockholder.
2. The transaction by which the person
first became an interested stockholder was approved by the board of directors
of the resident domestic corporation before the person first became an
interested stockholder.
3. The combination is approved at an
annual or special meeting of the stockholders of the resident domestic
corporation held no earlier than 2 years after the date that the person first
became an interested stockholder, and not by written consent, by the affirmative
vote of the holders of stock representing a majority of the outstanding voting
power of the resident domestic corporation not beneficially owned by the
interested stockholder or any affiliate or associate of the interested
stockholder.
(Added to NRS by 1991, 1204; A 1993, 969; 2003, 3103; 2011, 2787)
NRS 78.441 Authorized combinations: Consideration to be received by
disinterested holders of common shares. As
an alternative to a combination satisfying the requirements of subsection 1, 2
or 3 of NRS 78.439, a combination with an
interested stockholder of the resident domestic corporation engaged in more
than 2 years after the date that the person first became an interested
stockholder is permissible if the requirements of NRS
78.442, 78.443 and 78.444
are satisfied and the aggregate amount of the cash and the market value, as of
the date of consummation, of consideration other than cash to be received per
share by all of the holders of outstanding common shares of the resident
domestic corporation not beneficially owned by such interested stockholder
immediately before that date is at least equal to the higher of the following:
1. The highest price per share paid by the
interested stockholder, at a time when the interested stockholder was the
beneficial owner, directly or indirectly, of 5 percent or more of the
outstanding voting shares of the corporation, for any common shares of the same
class or series acquired by the interested stockholder within 2 years immediately
before the date of announcement with respect to the combination or within 2
years immediately before, or in, the transaction in which the person became an
interested stockholder, whichever is higher, plus, in either case, interest
compounded annually from the earliest date on which the highest price per share
was paid through the date of consummation at the rate for one-year obligations
of the United States Treasury in effect on that earliest date, less the
aggregate amount of any dividends paid in cash and the market value of any
dividends paid other than in cash, per common share since that earliest date.
2. The market value per common share on
the date of announcement with respect to the combination or on the date that
the person first became an interested stockholder, whichever is higher, plus
interest compounded annually from that date through the date of consummation at
the rate for one-year obligations of the United States Treasury in effect on
that date, less the aggregate amount of any dividends paid in cash and the
market value of any dividends paid other than in cash, per common share since
that date.
(Added to NRS by 1991, 1204; A 1993, 969; 2003, 3103; 2011, 2788)
NRS 78.442 Authorized combinations: Consideration to be received by
disinterested holders of class or series of shares other than common shares. As an alternative to a combination satisfying
the requirements of subsection 1, 2 or 3 of NRS 78.439,
a combination with an interested stockholder of the resident domestic
corporation engaged in more than 2 years after the date that the person first
became an interested stockholder is permissible if the requirements of NRS 78.441, 78.443 and 78.444 are satisfied and the aggregate amount of the
cash and the market value, as of the date of consummation, of consideration
other than cash to be received per share by all of the holders of outstanding
shares of any class or series of shares, other than common shares, of the
resident domestic corporation not beneficially owned by the interested
stockholder immediately before that date is at least equal to the highest of
the following, whether or not the interested stockholder has previously
acquired any shares of the class or series of shares:
1. The highest price per share paid by the
interested stockholder, at a time when the interested stockholder was the
beneficial owner, directly or indirectly, of 5 percent or more of the
outstanding voting shares of the corporation, for any shares of that class or
series of shares acquired by the interested stockholder within 2 years
immediately before the date of announcement with respect to the combination or
within 2 years immediately before, or in, the transaction in which the person
became an interested stockholder, whichever is higher, plus, in either case,
interest compounded annually from the earliest date on which the highest price
per share was paid through the date of consummation at the rate for one-year
obligations of the United States Treasury in effect on that earliest date, less
the aggregate amount of any dividends paid in cash and the market value of any
dividends paid other than in cash, per share of the class or series of shares
since that earliest date.
2. The amount specified in the articles of
incorporation of the resident domestic corporation, including in any
certificate of designation for the class or series, to which the holders of
shares of the class or series of shares are entitled upon the consummation of a
transaction of a type encompassing the combination, determined as if the
transaction had been consummated on the date of consummation with respect to
the combination or on the date that the interested stockholder first became an
interested stockholder, whichever is higher or, if the articles of
incorporation, including any certificate of designation, do not so provide, the
highest preferential amount per share to which the holders of shares of the
class or series of shares are entitled in the event of any voluntary
liquidation, dissolution or winding up of the resident domestic corporation,
plus the aggregate amount of any dividends declared or due to which the holders
are entitled before payment of the dividends on some other class or series of
shares, unless the aggregate amount of the dividends is included in the
preferential amount.
3. The market value per share of the class
or series of shares on the date of announcement with respect to the combination
or on the date that the person first became an interested stockholder,
whichever is higher, plus interest compounded annually from that date through
the date of consummation at the rate for one-year obligations of the United
States Treasury in effect on that date, less the aggregate amount of any
dividends paid in cash and the market value of any dividends paid other than in
cash, per share of the class or series of shares since that date.
(Added to NRS by 1991, 1205; A 1993, 970; 2003, 3104; 2011, 2789)
NRS 78.443 Authorized combinations: Required form and distribution of
consideration. The consideration
to be received by holders of a particular class or series of outstanding
shares, including common shares, of the resident domestic corporation in a
combination pursuant to NRS 78.441 and 78.442 must be in cash or in the same form as the
interested stockholder has used to acquire the largest number of shares of the
class or series of shares previously acquired by the interested stockholder,
and the consideration must be distributed promptly.
(Added to NRS by 1991, 1206; A 2011, 2790)
NRS 78.444 Authorized combinations: Restrictions on beneficial ownership of
additional voting shares by interested stockholder. As
an alternative to a combination satisfying the requirements of subsection 1, 2
or 3 of NRS 78.439, a combination with an
interested stockholder of the resident domestic corporation engaged in more
than 2 years after the date that the person first became an interested
stockholder is permissible if the requirements of NRS
78.441, 78.442 and 78.443
are satisfied and, after the date that such person first became an interested
stockholder and before the date of consummation with respect to the
combination, the interested stockholder has not become the beneficial owner of
any additional voting shares of the resident domestic corporation except:
1. As part of the transaction that
resulted in the person becoming an interested stockholder;
2. By virtue of any transaction or series
of transactions not constituting a combination;
3. Through a combination meeting the
requirements of NRS 78.439; or
4. Through a purchase at any price that,
if the price had been paid in an otherwise permissible combination whose date
of announcement and date of consummation were the date of the purchase, would
have satisfied the requirements of NRS 78.441, 78.442 and 78.443.
(Added to NRS by 1991, 1206; A 1993, 971; 2003, 3105; 2011, 2790)
SALE OF ASSETS; DISSOLUTION AND WINDING UP
NRS 78.565 Sale, lease or exchange of assets: Authority; vote of
stockholders.
1. Unless otherwise provided in the
articles of incorporation, every corporation may, by action taken at any
meeting of its board of directors, sell, lease or exchange all of its property
and assets, including its goodwill and its corporate franchises, upon such
terms and conditions as its board of directors may approve, when and as authorized
by the affirmative vote of stockholders holding stock in the corporation
entitling them to exercise at least a majority of the voting power.
2. Unless otherwise provided in the
articles of incorporation, a vote of stockholders is not necessary:
(a) For a transfer of assets by way of mortgage,
or in trust or in pledge to secure indebtedness of the corporation; or
(b) To abandon the sale, lease or exchange of
assets.
[37:177:1925; NCL § 1636]—(NRS A 1989, 886; 1993, 973; 2001, 1376, 3199; 2007, 2420)
NRS 78.570 Sale of property and franchise under decree of court. Sales of the property and franchises of
corporations that may be sold under a decree of court shall be made after such
notice of the time and place as the court may deem proper. If the sales are
made in the foreclosure of one or more mortgages, the court may order the sale
to be made for the whole amount of indebtedness secured by the mortgage or
mortgages, or for the amount of interest due under the mortgage or mortgages,
subject to the payment by the purchaser of the outstanding indebtedness and
interest secured thereby as they become due. In the latter event the court may,
by proper orders, secure the assumption thereof by the purchaser. When a sale
shall be ordered to be made, subject as aforesaid, the court shall direct the
officer making such sale, in the event that the property and franchises offered
do not sell for enough to pay the amount aforesaid, to sell the same free from
encumbrances. Sales under this section shall be made on such credits as the
court may deem proper.
[38:177:1925; NCL § 1637]
NRS 78.575 Procedure for dissolution before payment of capital and
beginning of business. Before the
payment of any part of the capital and before beginning the business for which
the corporation was created, the incorporators or the board of directors named
in the articles of incorporation may dissolve a corporation by filing in the
Office of the Secretary of State a certificate, signed by a majority of the
incorporators or of the board of directors named in the articles of
incorporation, stating that no part of the capital has been paid and the
business has not begun, and thereupon the corporation is dissolved.
[73:177:1925; NCL § 1672]—(NRS A 1993, 973; 1995, 1114; 1999, 1591)
NRS 78.580 Procedure for dissolution after beginning of business.
1. If the board of directors of any
corporation organized under this chapter decides that the corporation should be
dissolved, the board may adopt a resolution to that effect.
2. If the corporation has issued no stock,
only the directors need to approve the dissolution.
3. If the corporation has issued stock,
the directors must recommend the dissolution to the stockholders. The board of
directors may condition its submission of the proposal for dissolution on any
lawful basis. The corporation shall notify each stockholder, whether or not
entitled to vote on dissolution, of the proposed dissolution and the
stockholders entitled to vote must approve the dissolution.
4. If the dissolution is approved by the
directors or both the directors and stockholders, as respectively provided in
subsections 2 and 3, the corporation shall file with the Secretary of State a
certificate signed by an officer of the corporation setting forth that the
dissolution has been approved by the directors, or by the directors and the
stockholders, and a list of the names and addresses, either residence or
business, of the corporation’s president, secretary and treasurer, or the
equivalent thereof, and all of its directors.
5. The dissolution takes effect at the
time of the filing of the certificate of dissolution with the Secretary of
State or upon a later date and time as specified in the certificate, which date
must be not more than 90 days after the date on which the certificate is filed.
If a certificate of dissolution specifies a later effective date but does not
specify an effective time, the certificate is effective at 12:01 a.m. in the
Pacific time zone on the specified later date.
[64:177:1925; NCL § 1663]—(NRS A 1963, 1391; 1979, 397; 1991, 1239; 1993, 973; 2001, 1376, 3199; 2003, 3105; 2003, 20th
Special Session, 36; 2011, 2790)
NRS 78.585 Continuation of corporation after dissolution for winding up and
liquidating its business and affairs; limitation on actions by or against
dissolved corporation.
1. The dissolution of a corporation does
not impair any remedy or cause of action available to or against it or its
directors, officers or stockholders commenced within 2 years after the date of
the dissolution with respect to any remedy or cause of action in which the
plaintiff learns, or in the exercise of reasonable diligence should have
learned of, the underlying facts on or before the date of dissolution, or
within 3 years after the date of dissolution with respect to any other remedy
or cause of action. Any such remedy or cause of action not commenced within the
applicable period is barred. The corporation continues as a body corporate for
the purpose of prosecuting and defending suits, actions, proceedings and claims
of any kind or character by or against it and of enabling it gradually to
settle and close its business, to collect its assets, to collect and discharge
its obligations, to dispose of and convey its property, to distribute its money
and other property among the stockholders, after paying or adequately providing
for the payment of its liabilities and obligations, and to do every other act
to wind up and liquidate its business and affairs, but not for the purpose of
continuing the business for which it was established.
2. Nothing in this section shall be so
construed as to lengthen any shorter statute of limitations otherwise
applicable provided that no provision of this chapter or other specific statute
has the effect of applying any statute of limitations that is longer than
provided for in this section with respect to any such remedy or cause of
action. Nothing in this section shall be construed to create any remedy or
cause of action available to or against the corporation or its directors,
officers or stockholders.
[65:177:1925]—(NRS A 1949, 170; 1955, 165; 1985, 1793; 2011, 2791;
2013, 1273)
NRS 78.590 Trustees of dissolved corporation: Powers of directors.
1. Upon the dissolution of any corporation
under the provisions of NRS 78.580, or upon the
expiration of the period of its corporate existence, limited by its articles of
incorporation, the directors become trustees thereof, with full power to
prosecute and defend suits, actions, proceedings and claims of any kind or
character by or against the corporation, to enable the corporation gradually to
settle and close its business, to collect its assets, to collect and discharge
its obligations, to dispose of and convey its property, to distribute its money
and other property among the stockholders, after paying or adequately providing
for the payment of its liabilities and obligations, and to do every other act
to wind up and liquidate its business and affairs, but not for the purpose of
continuing the business for which the corporation was established.
2. After paying or adequately providing
for the liabilities and obligations of the corporation, the trustees, with the
written consent of stockholders holding stock in the corporation entitling them
to exercise at least a majority of the voting power, may sell the remaining
assets or any part thereof to a corporation organized under the laws of this or
any other state, and take in payment therefor the stock or bonds, or both, of
that corporation and distribute them among the stockholders of the liquidated
corporation, in proportion to their interest therein. No such sale is valid as
against any stockholder who, within 30 days after the mailing of notice to the
stockholder of the sale, applies to the district court for an appraisal of the
value of his or her interest in the assets so sold, and unless within 30 days
after the appraisal is confirmed by the court the stockholders consenting to the
sale, or some of them, pay to the objecting stockholder or deposit for the
objecting stockholder’s account, in the manner directed by the court, the
amount of the appraisal. Upon the payment or deposit the interest of the
objecting stockholder vests in the person or persons making the payment or
deposit.
3. In winding up and liquidating the
business and affairs of the corporation, the trustees have the duties imposed
upon them, and the benefit of the presumptions established, by NRS 78.138.
[66:177:1925; NCL § 1665]—(NRS A 1993, 974; 2011, 2791)
NRS 78.597 Liability of stockholders of dissolved corporation.
1. A stockholder of a corporation
dissolved pursuant to NRS 78.580 or whose period of
corporate existence has expired, the assets of which were distributed pursuant
to NRS 78.590, is not liable for any claim against
the corporation in an amount in excess of such stockholder’s pro rata share of
the claim or the amount so distributed to such stockholder, whichever is less.
2. A stockholder of a corporation
dissolved pursuant to NRS 78.580 or whose period of
corporate existence has expired, the assets of which were distributed pursuant
to NRS 78.590, is not liable for any claim against
the corporation on which an action, suit or proceeding is not begun before the
expiration of the period described in NRS 78.585.
3. The aggregate liability of any stockholder
of a corporation dissolved pursuant to NRS 78.580
or whose period of corporate existence has expired for claims against such
corporation must not exceed the amount distributed to such stockholder pursuant
to NRS 78.590.
(Added to NRS by 2011, 2769)
NRS 78.600 Trustees or receivers for dissolved corporations: Appointment;
powers. When any corporation
organized under this chapter shall be dissolved or cease to exist in any manner
whatever, the district court, on application of any creditor or stockholder of
the corporation, at any time, may either continue the directors trustees as
provided in NRS 78.590, or appoint one or more
persons to be receivers of and for the corporation, to take charge of the
estate and effects thereof, and to collect the debts and property due and
belonging to the corporation, with power to prosecute and defend, in the name
of the corporation, or otherwise, all such suits as may be necessary or proper
for the purposes aforesaid, and to appoint an agent or agents under them, and
to do all other acts which might be done by the corporation, if in being, that
may be necessary for the final settlement of the unfinished business of the
corporation. The powers of the trustees or receivers may be continued as long
as the district court shall think necessary for the purposes aforesaid.
[68:177:1925; NCL § 1667]
NRS 78.605 Jurisdiction of district court. The
district court shall have jurisdiction of the application prescribed in NRS 78.600 and of all questions arising in the
proceedings thereon, and may make such orders and decrees and issue injunctions
therein as justice and equity shall require.
[69:177:1925; NCL § 1668]
NRS 78.610 Duties of trustees or receivers; payment and distribution to
creditors and stockholders. The
trustees or receivers, after payment of all allowances, expenses and costs, and
the satisfaction of all special and general liens upon the funds of the
corporation to the extent of their lawful priority, shall pay the other debts
due from the corporation, if the funds in their hands shall be sufficient
therefor, and if not, they shall distribute the same ratably among all the
creditors who shall prove their debts in the manner that shall be directed by
an order or decree of the court for that purpose. If there shall be any balance
remaining after the payment of the debts and necessary expenses (or the making
of adequate provision therefor), they shall distribute and pay the same to and
among those who shall be justly entitled thereto, as having been stockholders
of the corporation, or their legal representatives.
[70:177:1925; NCL § 1669]
NRS 78.615 Abatement of pending actions; substitution of dissolution
trustees or receivers. If any
corporation organized under this chapter becomes dissolved by the expiration of
its charter or otherwise, before final judgment obtained in any action pending
or commenced in any court of record of this State against the corporation, the
action shall not abate by reason thereof, but the dissolution of the
corporation being suggested upon the record, and the names of the trustees or
receivers of the corporation being entered upon the record, and notice thereof
served upon the trustees or receivers, or if such service be impracticable upon
the counsel of record in such case, the action shall proceed to final judgment
against the trustees or receivers by the name of the corporation.
[71:177:1925; NCL § 1670]
NRS 78.620 Dissolution or forfeiture of charter by decree of court; filing. Whenever any corporation is dissolved or its
charter forfeited by decree or judgment of the district court, the decree or
judgment shall be forthwith filed by the clerk of the court in the Office of
the Secretary of State.
[72:177:1925; NCL § 1671]
INSOLVENCY; RECEIVERS AND TRUSTEES
NRS 78.622 Reorganization under federal law: Powers of corporation.
1. If a corporation is under
reorganization in a federal court pursuant to Title 11 of U.S.C., it may take
any action necessary to carry out any proceeding and do any act directed by the
court relating to reorganization, without further action by its directors or
stockholders. This authority may be exercised by:
(a) The trustee in bankruptcy appointed by the
court;
(b) Officers of the corporation designated by the
court; or
(c) Any other representative appointed by the
court,
Ê with the
same effect as if exercised by the directors and stockholders of the corporation.
2. By filing a confirmed plan or order of
reorganization, certified by the bankruptcy court, with the Secretary of State,
the corporation may:
(a) Alter, amend or repeal its bylaws;
(b) Constitute or reconstitute and classify or
reclassify its board of directors;
(c) Name, constitute or appoint directors and
officers in place of or in addition to all or some of the directors or officers
then in office;
(d) Amend its articles of incorporation;
(e) Make any change in its authorized and issued
stock;
(f) Make any other amendment, change, alteration
or provision authorized by this chapter; and
(g) Be dissolved, transfer all or part of its
assets, or merge or consolidate, or make any other change authorized by this
chapter.
3. In any action taken pursuant to
subsections 1 and 2, a stockholder has no right to demand payment for his or
her stock.
4. Any amendment of the articles of
incorporation made pursuant to subsection 2 must be signed under penalty of
perjury by the person authorized by the court and filed with the Secretary of
State. If the amendment is filed in accordance with the order of
reorganization, it becomes effective when it is filed unless otherwise ordered
by the court.
5. Any filing with the Secretary of State
pursuant to this section must be accompanied by the appropriate fee, if any.
(Added to NRS by 1985, 1042; A 1993, 2765; 2001, 1376, 3199; 2003, 20th
Special Session, 36)
NRS 78.630 Application of creditors or stockholders of insolvent
corporation for injunction and appointment of receiver or trustee; hearing.
1. Whenever any corporation becomes
insolvent or suspends its ordinary business for want of money to carry on the
business, or if its business has been and is being conducted at a great loss
and greatly prejudicial to the interest of its creditors or stockholders, any
creditors holding 10 percent of the outstanding indebtedness, or stockholders
owning 10 percent of the outstanding stock entitled to vote, may, by petition
setting forth the facts and circumstances of the case, apply to the district
court of the county in which the principal office of the corporation is located
or, if the principal office is not located in this State, to the district court
in the county in which the corporation’s registered office is located for a
writ of injunction and the appointment of a receiver or receivers or trustee or
trustees.
2. The court, being satisfied by affidavit
or otherwise of the sufficiency of the application and of the truth of the
allegations contained in the petition and upon hearing after such notice as the
court by order may direct, shall proceed in a summary way to hear the
affidavits, proofs and allegations which may be offered in behalf of the
parties.
3. If upon such inquiry it appears to the
court that the corporation has become insolvent and is not about to resume its
business in a short time thereafter, or that its business has been and is being
conducted at a great loss and greatly prejudicial to the interests of its
creditors or stockholders, so that its business cannot be conducted with safety
to the public, it may issue an injunction to restrain the corporation and its
officers and agents from exercising any of its privileges or franchises and
from collecting or receiving any debts or paying out, selling, assigning or
transferring any of its estate, money, lands, tenements or effects, except to a
receiver appointed by the court, until the court otherwise orders.
[46:177:1925; NCL § 1645]—(NRS A 1993, 974, 2765, 2820; 2007, 2649; 2009, 1682)
NRS 78.635 Appointment of receiver or trustee of insolvent corporation:
Powers.
1. The district court, at the time of
ordering the injunction, or at any time afterwards, may appoint a receiver or
receivers or a trustee or trustees for the creditors and stockholders of the
corporation.
2. Receivers or trustees shall have full
power and authority:
(a) To demand, sue for, collect, receive and take
into possession all the goods and chattels, rights and credits, moneys and
effects, lands and tenements, books, papers, choses in action, bills, notes and
property, of every description of the corporation;
(b) To institute suits at law or in equity for
the recovery of any estate, property, damages or demands existing in favor of
the corporation;
(c) In their discretion to compound and settle
with any debtor or creditor of the corporation, or with persons having
possession of its property or in any way responsible at law or in equity to the
corporation at the time of its insolvency or suspension of business, or
afterwards, upon such terms and in such manner as they shall deem just and
beneficial to the corporation; and
(d) In case of mutual dealings between the
corporation and any person to allow just setoffs in favor of such person in all
cases in which the same ought to be allowed according to law and equity.
3. A debtor who shall have in good faith
paid a debt to the corporation without notice of its insolvency or suspension of
business, shall not be liable therefor, and the receiver or receivers or
trustee or trustees shall have power to sell, convey and assign all the estate,
rights and interests, and shall hold and dispose of the proceeds thereof under
the directions of the district court.
[Part 47:177:1925; NCL § 1646]—(NRS A 1969, 93)
NRS 78.640 Property and privileges of insolvent corporation vest in
appointed receiver. All real and
personal property of an insolvent corporation, wheresoever situated, and all
its franchises, rights, privileges and effects shall, upon the appointment of a
receiver, forthwith vest in the receiver, and the corporation shall be divested
of the title thereto.
[48:177:1925; NCL § 1647]
NRS 78.645 Corporation may resume control upon payment of debts and receipt
of capital to conduct business; order of court dissolving corporation and
forfeiting charter.
1. Whenever a receiver shall have been
appointed as provided in NRS 78.635 and it shall
afterwards appear that the debts of the corporation have been paid or provided
for, and that there remains or can be obtained by further contributions
sufficient capital to enable it to resume its business, the district court may,
in its discretion, a proper case being shown, direct the receiver to reconvey
to the corporation all its property, franchises, rights and effects, and
thereafter the corporation may resume control of and enjoy the same as fully as
if the receiver had never been appointed.
2. In every case in which the district
court shall not direct such reconveyance, the court may, in its discretion,
make a decree dissolving the corporation and declaring its charter forfeited
and void.
[49:177:1925; NCL § 1648]
NRS 78.650 Stockholders’ application for injunction and appointment of
receiver when corporation mismanaged.
1. Any holder or holders of one-tenth of
the issued and outstanding stock may apply to the district court in the county
in which the corporation has its principal place of business or, if the
principal place of business is not located in this State, to the district court
in the county in which the corporation’s registered office is located, for an
order dissolving the corporation and appointing a receiver to wind up its
affairs, and by injunction restrain the corporation from exercising any of its
powers or doing business whatsoever, except by and through a receiver appointed
by the court, whenever:
(a) The corporation has willfully violated its
charter;
(b) Its trustees or directors have been guilty of
fraud or collusion or gross mismanagement in the conduct or control of its
affairs;
(c) Its trustees or directors have been guilty of
misfeasance, malfeasance or nonfeasance;
(d) The corporation is unable to conduct the
business or conserve its assets by reason of the act, neglect or refusal to
function of any of the directors or trustees;
(e) The assets of the corporation are in danger
of waste, sacrifice or loss through attachment, foreclosure, litigation or otherwise;
(f) The corporation has abandoned its business;
(g) The corporation has not proceeded diligently
to wind up its affairs, or to distribute its assets in a reasonable time;
(h) The corporation has become insolvent;
(i) The corporation, although not insolvent, is
for any cause not able to pay its debts or other obligations as they mature; or
(j) The corporation is not about to resume its
business with safety to the public.
2. The application may be for the
appointment of a receiver, without at the same time applying for the
dissolution of the corporation, and notwithstanding the absence, if any there
be, of any action or other proceeding in the premises pending in such court.
3. In any such application for a
receivership, it is sufficient for a temporary appointment if notice of the
same is given to the corporation alone, by process as in the case of an
application for a temporary restraining order or injunction, and the hearing
thereon may be had after 5 days’ notice unless the court directs a longer or
different notice and different parties.
4. The court may, if good cause exists
therefor, appoint one or more receivers for such purpose, but in all cases
directors or trustees who have been guilty of no negligence nor active breach
of duty must be preferred in making the appointment. The court may at any time
for sufficient cause make a decree terminating the receivership, or dissolving
the corporation and terminating its existence, or both, as may be proper.
5. Receivers so appointed have, among the
usual powers, all the functions, powers, tenure and duties to be exercised
under the direction of the court as are conferred on receivers and as provided
in NRS 78.635, 78.640
and 78.645, whether the corporation is insolvent or
not.
[49a:177:1925; added 1941, 405; 1931 NCL §
1648.01]—(NRS A 1993,
2766; 2009,
1683)
NRS 78.655 Reorganization of corporation by majority of stockholders during
receivership. Whenever
stockholders holding stock entitling them to exercise at least a majority of
the voting power of the corporation shall have agreed upon a plan for the
reorganization of the corporation and a resumption by it of the management and
control of its property and business, the corporation may, with the consent of
the district court:
1. Upon the reconveyance to it of its
property and franchises, mortgage the same for such amount as may be necessary
for the purposes of reorganization; and
2. Issue bonds or other evidences of
indebtedness, or additional stock of one or more classes, with or without
nominal or par value, or both, or both bonds and stock, or certificates of
investment or participation certificates, and use the same for the full or
partial payment of the creditors who will accept the same, or otherwise dispose
of the same for the purposes of the reorganization.
[50:177:1925; NCL § 1649]
NRS 78.660 Powers of district court.
1. The court shall have power to send for
persons and papers and to examine any persons, including the creditors and
claimants, and the president, directors and other officers and agents of the
corporation, on oath or affirmation, respecting its affairs and transactions
and its estate, money, goods, chattels, credits, notes, bills and choses in
action, real and personal estate and effects of every kind, and also respecting
its debts, obligations, contracts and liabilities, and the claims against it.
2. If any person shall refuse to be sworn
or affirmed, or to make answers to such questions as shall be put to the
person, or refuse to declare the whole truth touching the subject matter of the
examination, the district court may commit such person to a place of
confinement, there to remain until the person shall submit to be examined, and
pay all the costs of the proceedings against the person.
[51:177:1925; NCL § 1650]
NRS 78.665 Receiver to take possession of corporate assets upon court
order. The receiver, upon order of
the court, with the assistance of a peace officer, may break open, in the
daytime, the houses, shops, warehouses, doors, trunks, chests or other places
of the corporation where any of its goods, chattels, choses in action, notes,
bills, moneys, books, papers or other writings or effects have been usually
kept, or shall be, and take possession of the same and of the lands and
tenements belonging to the corporation.
[52:177:1925; NCL § 1651]
NRS 78.670 Inventory, list of debts and reports by receiver. The receiver, as soon as convenient, shall lay
before the district court a full and complete inventory of all the estate,
property and effects of the corporation, its nature and probable value, and an
account of all debts due from and to it, as nearly as the same can be
ascertained, and make a report to the court of his or her proceedings at least
every 3 months thereafter during the continuance of the trust, and whenever the
receiver shall be so ordered.
[53:177:1925; NCL § 1652]
NRS 78.675 Creditors’ proofs of claims; when participation barred; notice. All creditors shall present and make proof to
the receiver of their respective claims against the corporation within 6 months
from the date of appointment of the receiver or trustee for the corporation, or
sooner if the court shall order and direct, and all creditors and claimants
failing to do so within the time limited by this section, or the time
prescribed by the order of the court, shall by the direction of the court be
barred from participating in the distribution of the assets of the corporation.
The court shall also prescribe what notice, by publication or otherwise, shall
be given to creditors of such limitation of time.
[54:177:1925; A 1949, 158; 1943 NCL § 1653]
NRS 78.680 Creditors’ claims to be in writing under oath; examination of
claimants. Every claim against any
corporation for which a receiver has been appointed shall be presented to the
receiver in writing and upon oath. The claimant, if required, shall submit to
such examination in relation to the claim as the court shall direct, and shall
produce such books and papers relating to the claim as shall be required. The
court shall have power to authorize the receiver to examine, under oath or
affirmation, all witnesses produced before the receiver touching the claim or
any part thereof.
[55:177:1925; NCL § 1654]
NRS 78.685 Action on creditors’ claims; appeal of disallowed claims.
1. The clerk of the district court,
immediately upon the expiration of the time fixed for the filing of claims,
shall notify the trustee or receiver of the filing of the claims. The trustee
or receiver shall inspect the claims and within 30 days notify each claimant of
his or her decision. The trustee or receiver may require all creditors whose
claims are disputed to submit themselves to an examination in relation to their
claims, and to produce such books and papers relating to their claims as the
trustee or receiver requests. The trustee or receiver may examine, under oath
or affirmation, all witnesses produced before him or her regarding the claims,
and shall pass upon and allow or disallow the claims, or any part thereof, and
notify the claimants of the determination.
2. Every creditor or claimant who has
received notice from the receiver or trustee that his or her claim has been
disallowed in whole or in part may appeal to the district court within 30 days
thereafter. The court, after a hearing, shall determine the rights of the parties.
[56:177:1925; NCL § 1655] + [Part 57:177:1925; NCL §
1656]—(NRS A 1991,
1239)
NRS 78.695 Substitution of receiver as party; abatement of actions.
1. A receiver, upon application by him or
her, shall be substituted as party plaintiff or complainant in the place and
stead of the corporation in any suit or proceeding at law or in equity which
was pending at the time of the receiver’s appointment.
2. No action against a receiver of a
corporation shall abate by reason of the receiver’s death, but, upon suggestion
of the facts on the record, shall be continued against the receiver’s
successor, or against the corporation in case no new receiver be appointed.
[58:177:1925; NCL § 1657] + [59:177:1925; NCL § 1658]
NRS 78.700 Sales of encumbered or deteriorating property. Where property of an insolvent corporation is
at the time of the appointment of a receiver encumbered with mortgages or other
liens, the legality of which is brought in question, or the property is of a
character which will materially deteriorate in value pending the litigation,
the district court may order the receiver to sell the same, clear of encumbrances,
at public or private sale, for the best price that can be obtained, and pay the
money into court, there to remain subject to the same liens and equities of all
parties in interest as was the property before sale, to be disposed of as the
court shall direct.
[60:177:1925; NCL § 1659]
NRS 78.705 Compensation, costs and expenses of receiver. Before distribution of the assets of an
insolvent corporation among the creditors or stockholders, the district court
shall allow a reasonable compensation to the receiver for his or her services
and the costs and expenses of the administration of the trust, and the cost of
the proceedings in the court, to be first paid out of the assets.
[61:177:1925; NCL § 1660]
NRS 78.710 Distribution of money to creditors and stockholders. After payment of all allowances, expenses and
costs, and the satisfaction of all special and general liens upon the funds of
the corporation to the extent of their lawful priority, the creditors shall be
paid proportionately to the amount of their respective debts, excepting
mortgage and judgment creditors when the judgment has not been by confession
for the purpose of preferring creditors. The creditors shall be entitled to
distribution on debts not due, making in such case a rebate of interest, when
interest is not accruing on the same. The surplus funds, if any, after payment
of the creditors and the costs, expenses and allowances, shall be distributed
among the stockholders or their legal representatives in proportion to their
interests.
[62:177:1925; NCL § 1661]
NRS 78.715 Acts of majority of receivers effectual; removal and vacancies.
1. Every matter and thing by this chapter
required to be done by receivers or trustees shall be good and effectual, to
all intents and purposes, if performed by a majority of them.
2. The district court may remove any
receiver or trustee and appoint another or others in his or her place to fill
any vacancy which may occur.
[63:177:1925; NCL § 1662]
NRS 78.720 Employees’ liens for wages when corporation insolvent.
1. Whenever any corporation becomes
insolvent or is dissolved in any way or for any cause, the employees doing
labor or service, of whatever character, in the regular employ of the
corporation, have a lien upon the assets thereof for the amount of wages due to
them, not exceeding $1,000, which have been earned within 3 months before the
date of the insolvency or dissolution, which must be paid before any other debt
of the corporation.
2. The word “employees” does not include
any of the officers of the corporation.
[86:177:1925; NCL § 1685]—(NRS A 1959, 607; 1983, 1362)
REINCORPORATION; RENEWAL AND REVIVAL OF CHARTERS
NRS 78.725 Domestic corporations in existence on April 1, 1925, may
reincorporate under this chapter.
1. Any corporation organized and existing
under the laws of this State on April 1, 1925, may reincorporate under this
chapter, either under the same or a different name, by:
(a) Filing with the Secretary of State a
certificate signed by its president and attested by its secretary and duly
authorized by a meeting of the stockholders called for that purpose, setting
forth the statements required in an original certificate of incorporation by NRS 78.035; and
(b) Surrendering the existing charter or
certificate of incorporation of the corporation, and accepting the provisions
of this chapter.
2. Upon the filing of the certificate, the
corporation shall be deemed to be incorporated under this chapter and is
entitled to and possesses all the privileges, franchises and powers as if
originally incorporated under this chapter. All the properties, rights and
privileges theretofore belonging to the corporation, which were acquired by
gift, grant, conveyance, assignment or otherwise, are hereby ratified, approved
and confirmed and assured to the corporation with like effect and to all intents
and purposes as if the same had been originally acquired through incorporation
under this chapter.
3. Any corporation reincorporating under
this chapter is subject to all the contracts, duties and obligations
theretofore resting upon the corporation whose charter or certificate of
incorporation is thus surrendered or to which the corporation is then in any
way liable.
[82:177:1925; NCL § 1681]—(NRS A 1971, 1105; 2003, 3106)
NRS 78.730 Renewal or revival: Procedure; fee; certificate as evidence.
1. Except as otherwise provided in NRS 78.152, any corporation which did exist or is
existing under the laws of this State may, upon complying with the provisions
of NRS 78.180, procure a renewal or revival of its
charter for any period, together with all the rights, franchises, privileges
and immunities, and subject to all its existing and preexisting debts, duties
and liabilities secured or imposed by its original charter and amendments
thereto, or existing charter, by filing:
(a) A certificate with the Secretary of State,
which must set forth:
(1) The name of the corporation, which
must be the name of the corporation at the time of the renewal or revival, or
its name at the time its original charter expired.
(2) The information required pursuant to NRS 77.310.
(3) The date when the renewal or revival
of the charter is to commence or be effective, which may be, in cases of a
revival, before the date of the certificate.
(4) Whether or not the renewal or revival
is to be perpetual, and, if not perpetual, the time for which the renewal or
revival is to continue.
(5) That the corporation desiring to renew
or revive its charter is, or has been, organized and carrying on the business
authorized by its existing or original charter and amendments thereto, and
desires to renew or continue through revival its existence pursuant to and
subject to the provisions of this chapter.
(b) A list of its president, secretary and
treasurer, or the equivalent thereof, and all of its directors and their
addresses, either residence or business.
(c) A declaration under penalty of perjury, on a
form provided by the Secretary of State, that the renewal or revival is
authorized by a court of competent jurisdiction in this State or by the duly
elected board of directors of the corporation or, if the corporation does not
have a board of directors, the equivalent of such a board.
2. A corporation whose charter has not
expired and is being renewed shall cause the certificate to be signed by an
officer of the corporation. The certificate must be approved by a majority of
the voting power of the shares.
3. A corporation seeking to revive its
original or amended charter shall cause the certificate to be signed by a
person or persons designated or appointed by the stockholders of the
corporation. The signing and filing of the certificate must be approved by the
written consent of stockholders of the corporation holding at least a majority
of the voting power and must contain a recital that this consent was secured.
If no stock has been issued, the certificate must contain a statement of that
fact, and a majority of the directors then in office may designate the person
to sign the certificate. The corporation shall pay to the Secretary of State
the fee required to establish a new corporation pursuant to the provisions of
this chapter.
4. The filed certificate, or a copy
thereof which has been certified under the hand and seal of the Secretary of
State, must be received in all courts and places as prima facie evidence of the
facts therein stated and of the existence and incorporation of the corporation
therein named.
[93:177:1925]—(NRS A 1937, 4; 1953, 314; 1985, 1872; 1993, 975; 1995, 2100; 1997, 705; 1999, 1591; 2003, 3106; 2003, 20th
Special Session, 37; 2007, 1319, 2649; 2013, 842)
NRS 78.740 Renewal or revival: Status of corporation.
1. Any corporation existing on or
incorporated after April 1, 1925, desiring to renew or revive its corporate
existence, upon complying with the provisions of this chapter, is and continues
for the time stated in its certificate of renewal to be a corporation, and in
addition to the rights, privileges and immunities conferred by its original
charter, possesses and enjoys all the benefits of this chapter that are
applicable to the nature of its business, and is subject to the restrictions
and liabilities by this chapter imposed on such corporations.
2. Except as otherwise provided in NRS 78.185, a renewal or revival pursuant to NRS 78.730 relates back to the date on which the
corporation’s charter expired or was revoked and renews or revives the
corporation’s charter and right to transact business as if such right had at
all times remained in full force and effect.
[95:177:1925; NCL § 1694]—(NRS A 1993, 976; 2007, 2421)
SUITS AGAINST CORPORATIONS, DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS AND STOCKHOLDERS
NRS 78.745 Action against stockholder for unpaid subscriptions; limitation
of action. No action shall be
brought by the corporation against any stockholder for any unpaid subscription
unless within 2 years after the debt becomes due, and no action shall be
brought against the stockholder after the stockholder shall cease to be the
owner of the shares, unless brought within 2 years from the time the
stockholder shall have ceased to be a stockholder.
[17:177:1925; NCL § 1616]
NRS 78.746 Action against stockholder by judgment creditor; limitations.
1. On application to a court of competent
jurisdiction by any judgment creditor of a stockholder, the court may charge
the stockholder’s stock with payment of the unsatisfied amount of the judgment
with interest. To the extent so charged, the judgment creditor has only the
rights of an assignee of the stockholder’s stock.
2. Subject to the provisions of NRS 78.747, this section:
(a) Provides the exclusive remedy by which a
judgment creditor of a stockholder or an assignee of a stockholder may satisfy
a judgment out of the stock of the judgment debtor. No other remedy, including,
without limitation, foreclosure on the stockholder’s stock or a court order for
directions, accounts and inquiries that the debtor or stockholder might have
made, is available to the judgment creditor attempting to satisfy the judgment
out of the judgment debtor’s interest in the corporation, and no other remedy
may be ordered by a court.
(b) Does not deprive any stockholder of the
benefit of any exemption applicable to the stockholder’s stock.
(c) Applies only to a corporation that:
(1) Has fewer than 100 stockholders of
record at any time.
(2) Is not a publicly traded corporation
or a subsidiary of a publicly traded corporation, either in whole or in part.
(3) Is not a professional corporation as
defined in NRS 89.020.
(d) Does not apply to any liability of a
stockholder that exists as the result of an action filed before July 1, 2007.
(e) Does not supersede any written agreement
between a stockholder and a creditor if the written agreement does not conflict
with the corporation’s articles of incorporation, bylaws or any shareholder
agreement to which the stockholder is a party.
3. As used in this section, “rights of an
assignee” means the rights to receive the share of the distributions or
dividends paid by the corporation to which the judgment debtor would otherwise
be entitled. The term does not include the rights to participate in the
management of the business or affairs of the corporation or to become a
director of the corporation.
(Added to NRS by 2007, 2639; A 2009, 2829;
2011, 2792)
NRS 78.747 Liability of stockholder, director or officer for debt or
liability of corporation.
1. Except as otherwise provided by
specific statute, no stockholder, director or officer of a corporation is
individually liable for a debt or liability of the corporation, unless the
stockholder, director or officer acts as the alter ego of the corporation.
2. A stockholder, director or officer acts
as the alter ego of a corporation if:
(a) The corporation is influenced and governed by
the stockholder, director or officer;
(b) There is such unity of interest and ownership
that the corporation and the stockholder, director or officer are inseparable
from each other; and
(c) Adherence to the corporate fiction of a
separate entity would sanction fraud or promote a manifest injustice.
3. The question of whether a stockholder,
director or officer acts as the alter ego of a corporation must be determined
by the court as a matter of law.
(Added to NRS by 2001, 3170)
NRS 78.750 Service of process on corporations.
1. In any action commenced against any
corporation in any court of this State, service of process may be made in the
manner provided by law and rule of court for the service of civil process.
2. Service of process on a corporation
whose charter has been revoked or which has been continued as a body corporate
pursuant to NRS 78.585 may be made by mailing
copies of the process and any associated records by certified mail, with return
receipt requested, to:
(a) The registered agent of the corporation, if
there is one; and
(b) Each officer and director of the corporation
as named in the list last filed with the Secretary of State before the
dissolution or expiration of the corporation or the forfeiture of its charter.
Ê The manner
of serving process described in this subsection does not affect the validity of
any other service authorized by law.
[81:177:1925; NCL § 1680]—(NRS A 1979, 568; 1997, 474; 2001, 1377, 3199; 2003, 3107; 2007, 2650)
NRS 78.7502 Discretionary and mandatory indemnification of officers,
directors, employees and agents: General provisions.
1. A corporation may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, except an action by or in the right of the
corporation, by reason of the fact that the person is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses, including attorneys’ fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person in connection with
the action, suit or proceeding if the person:
(a) Is not liable pursuant to NRS 78.138; or
(b) Acted in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the conduct was unlawful.
Ê The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that the person is liable pursuant to NRS 78.138 or did not act in good faith and in a
manner which he or she reasonably believed to be in or not opposed to the best
interests of the corporation, or that, with respect to any criminal action or
proceeding, he or she had reasonable cause to believe that the conduct was unlawful.
2. A corporation may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that the person is or was
a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses, including amounts paid in settlement and attorneys’ fees
actually and reasonably incurred by the person in connection with the defense
or settlement of the action or suit if the person:
(a) Is not liable pursuant to NRS 78.138; or
(b) Acted in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interests of the
corporation.
Ê
Indemnification may not be made for any claim, issue or matter as to which such
a person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the corporation or for
amounts paid in settlement to the corporation, unless and only to the extent
that the court in which the action or suit was brought or other court of
competent jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
3. To the extent that a director, officer,
employee or agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections 1 and 2, or in defense of any claim, issue or matter therein, the
corporation shall indemnify him or her against expenses, including attorneys’
fees, actually and reasonably incurred by him or her in connection with the
defense.
(Added to NRS by 1997, 694; A 2001, 3175)
NRS 78.751 Authorization required for discretionary indemnification;
advancement of expenses; other rights to indemnification and advancement of
expenses.
1. Any discretionary indemnification
pursuant to NRS 78.7502, unless ordered by a court
or advanced pursuant to subsection 2, may be made by the corporation only as
authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances. The
determination must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of
a quorum consisting of directors who were not parties to the action, suit or
proceeding;
(c) If a majority vote of a quorum consisting of
directors who were not parties to the action, suit or proceeding so orders, by
independent legal counsel in a written opinion; or
(d) If a quorum consisting of directors who were
not parties to the action, suit or proceeding cannot be obtained, by
independent legal counsel in a written opinion.
2. The articles of incorporation, the
bylaws or an agreement made by the corporation may provide that the expenses of
officers and directors incurred in defending a civil or criminal action, suit
or proceeding must be paid by the corporation as they are incurred and in
advance of the final disposition of the action, suit or proceeding, upon
receipt of an undertaking by or on behalf of the director or officer to repay
the amount if it is ultimately determined by a court of competent jurisdiction
that the director or officer is not entitled to be indemnified by the
corporation. The provisions of this subsection do not affect any rights to
advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
3. The indemnification pursuant to NRS 78.7502 and advancement of expenses authorized in
or ordered by a court pursuant to this section:
(a) Does not exclude any other rights to which a
person seeking indemnification or advancement of expenses may be entitled under
the articles of incorporation or any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, for either an action in the person’s
official capacity or an action in another capacity while holding office, except
that indemnification, unless ordered by a court pursuant to NRS 78.7502 or for the advancement of expenses made
pursuant to subsection 2, may not be made to or on behalf of any director or
officer if a final adjudication establishes that the director’s or officer’s
acts or omissions involved intentional misconduct, fraud or a knowing violation
of the law and was material to the cause of action. A right to indemnification
or to advancement of expenses arising under a provision of the articles of
incorporation or any bylaw is not eliminated or impaired by an amendment to
such provision after the occurrence of the act or omission that is the subject
of the civil, criminal, administrative or investigative action, suit or
proceeding for which indemnification or advancement of expenses is sought,
unless the provision in effect at the time of such act or omission explicitly
authorizes such elimination or impairment after such action or omission has
occurred.
(b) Continues for a person who has ceased to be a
director, officer, employee or agent and inures to the benefit of the heirs,
executors and administrators of such a person.
(Added to NRS by 1969, 118; A 1987, 83; 1993, 976; 1997, 706; 2001, 1377, 3199; 2011, 2793)
NRS 78.752 Insurance and other financial arrangements against liability of
directors, officers, employees and agents.
1. A corporation may purchase and maintain
insurance or make other financial arrangements on behalf of any person who is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise for any liability asserted against the person and liability and
expenses incurred by the person in his or her capacity as a director, officer,
employee or agent, or arising out of his or her status as such, whether or not
the corporation has the authority to indemnify such a person against such
liability and expenses.
2. The other financial arrangements made
by the corporation pursuant to subsection 1 may include the following:
(a) The creation of a trust fund.
(b) The establishment of a program of
self-insurance.
(c) The securing of its obligation of
indemnification by granting a security interest or other lien on any assets of
the corporation.
(d) The establishment of a letter of credit,
guaranty or surety.
Ê No financial
arrangement made pursuant to this subsection may provide protection for a
person adjudged by a court of competent jurisdiction, after exhaustion of all
appeals therefrom, to be liable for intentional misconduct, fraud or a knowing
violation of law, except with respect to the advancement of expenses or
indemnification ordered by a court.
3. Any insurance or other financial
arrangement made on behalf of a person pursuant to this section may be provided
by the corporation or any other person approved by the board of directors, even
if all or part of the other person’s stock or other securities is owned by the
corporation.
4. In the absence of fraud:
(a) The decision of the board of directors as to
the propriety of the terms and conditions of any insurance or other financial
arrangement made pursuant to this section and the choice of the person to
provide the insurance or other financial arrangement is conclusive; and
(b) The insurance or other financial arrangement:
(1) Is not void or voidable; and
(2) Does not subject any director
approving it to personal liability for his or her action,
Ê even if a
director approving the insurance or other financial arrangement is a
beneficiary of the insurance or other financial arrangement.
5. A corporation or its subsidiary which
provides self-insurance for itself or for another affiliated corporation
pursuant to this section is not subject to the provisions of title 57 of NRS.
(Added to NRS by 1987, 80)
SECRETARY OF STATE: DUTIES AND FEES
NRS 78.755 Duties: Collection of fees; employment of new technology to aid
in performance.
1. The Secretary of State, for services
relating to official duties and the records of the Office of the Secretary of
State, shall charge and collect the fees designated in NRS
78.760 to 78.785, inclusive.
2. The Secretary of State may accept the
filing of records by facsimile machine and employ new technology, as it is
developed, to aid in the performance of all duties required by law. The
Secretary of State may establish rules, fee schedules and regulations not
inconsistent with law, for filing records by facsimile machine and for the
adoption, employment and use of new technology in the performance of his or her
duties.
[Part 1:52:1933; A 1949, 363; 1951, 393] + [Part
2:52:1933; A 1949, 409; 1943 NCL § 7421.02]—(NRS A 1979, 76; 1991, 1239; 1997, 2810; 2003, 3107)
NRS 78.760 Filing fees: Articles of incorporation.
1. The fee for filing articles of
incorporation is prescribed in the following schedule:
If the amount
represented by the total number of shares provided for in the articles is:
$75,000 or less........................................................................................................ $75
Over $75,000 and
not over $200,000................................................................ 175
Over $200,000 and
not over $500,000.............................................................. 275
Over $500,000 and
not over $1,000,000........................................................... 375
Over $1,000,000:
For the
first $1,000,000.................................................................................. 375
For each
additional $500,000 or fraction thereof..................................... 275
2. The maximum fee which may be charged
pursuant to this section:
(a) Is $35,000 for the original filing of the
articles of incorporation.
(b) Is $34,925 for a subsequent filing of any
instrument which authorizes an increase in stock.
3. For the purposes of computing the filing
fees according to the schedule in subsection 1, the amount represented by the
total number of shares provided for in the articles of incorporation is:
(a) The aggregate par value of the shares, if
only shares with a par value are therein provided for;
(b) The product of the number of shares
multiplied by $1, regardless of any lesser amount prescribed as the value or
consideration for which shares may be issued and disposed of, if only shares
without par value are therein provided for; or
(c) The aggregate par value of the shares with a
par value plus the product of the number of shares without par value multiplied
by $1, regardless of any lesser amount prescribed as the value or consideration
for which the shares without par value may be issued and disposed of, if shares
with and without par value are therein provided for.
Ê For the
purposes of this subsection, shares with no prescribed par value shall be
deemed shares without par value.
4. The Secretary of State shall calculate
filing fees pursuant to this section with respect to shares with a par value of
less than one-tenth of a cent as if the par value were one-tenth of a cent.
[Part 1:52:1933; A 1949, 363; 1951, 393]—(NRS A 1975,
478; 1977, 402;
1983, 690; 1989, 978; 1991, 1240; 1993, 555, 978; 1995, 1115; 2001, 1378, 3176, 3199; 2003, 20th
Special Session, 37; 2011, 2794)
NRS 78.765 Filing fees: Certificate changing number of authorized shares;
certificate of amendment to articles; certificate of correction; certificate of
designation; certificate of termination; certificate of withdrawal.
1. The fee for filing a certificate
changing the number of authorized shares pursuant to NRS
78.209 or a certificate of amendment to articles of incorporation that
increases the corporation’s authorized stock or a certificate of correction
that increases the corporation’s authorized stock is the difference between the
fee computed at the rates specified in NRS 78.760
upon the total authorized stock of the corporation, including the proposed
increase, and the fee computed at the rates specified in NRS
78.760 upon the total authorized capital, excluding the proposed increase.
In no case may the amount be less than $175.
2. The fee for filing a certificate of amendment
to articles of incorporation that does not increase the corporation’s
authorized stock or a certificate of correction that does not increase the
corporation’s authorized stock is $175.
3. The fee for filing a certificate or an
amended certificate pursuant to NRS 78.1955 is
$175.
4. The fee for filing a certificate of
termination pursuant to NRS 78.209, 78.380 or 78.390 or a
certificate of withdrawal pursuant to NRS 78.1955
is $175.
[Part 1:52:1933; A 1949, 363; 1951, 393]—(NRS A 1983, 691; 1989, 978; 1991, 1240; 1993, 979; 1995, 1115, 2101; 1997, 708; 1999, 1592; 2001, 1379, 3177, 3199; 2003, 20th
Special Session, 38)
NRS 78.767 Filing fees: Certificates of restated articles of incorporation.
1. The fee for filing a certificate of
restated articles of incorporation that does not increase the corporation’s
authorized stock is $175.
2. The fee for filing a certificate of
restated articles of incorporation that increases the corporation’s authorized
stock is the difference between the fee computed pursuant to NRS 78.760 based upon the total authorized stock of
the corporation, including the proposed increase, and the fee computed pursuant
to NRS 78.760 based upon the total authorized stock
of the corporation, excluding the proposed increase. In no case may the amount
be less than $175.
(Added to NRS by 1959, 682; A 1983, 691; 1989, 979; 1993, 979; 1995, 1116; 2001, 3177; 2003, 20th
Special Session, 39)
NRS 78.780 Filing fee: Certificate of dissolution. The
fee for filing a certificate of dissolution whether it occurs before or after
payment of capital and beginning of business is $100.
[Part 1:52:1933; A 1949, 363; 1951, 393]—(NRS A 1981, 1890; 1989, 979; 1993, 979; 2001, 3178; 2003, 20th
Special Session, 39; 2005, 2252; 2010, 26th
Special Session, 73)
NRS 78.785 Miscellaneous fees.
1. The fee for certifying a copy of
articles of incorporation is $30.
2. The fee for certifying a copy of an
amendment to articles of incorporation, or to a copy of the articles as
amended, is $30.
3. The fee for certifying an authorized
printed copy of the general corporation law as compiled by the Secretary of
State is $30.
4. The fee for reserving a corporate name
is $25.
5. The fee for signing a certificate of
corporate existence which does not list the previous records relating to the
corporation, or a certificate of change in a corporate name, is $50.
6. The fee for signing a certificate of
corporate existence which lists the previous records relating to the
corporation is $50.
7. The fee for signing, certifying or
filing any certificate or record not provided for in NRS
78.760 to 78.785, inclusive, is $50.
8. The fee for copies provided by the
Office of the Secretary of State is $2 per page.
9. The fees for filing articles of
incorporation, articles of merger, or certificates of amendment increasing the
basic surplus of a mutual or reciprocal insurer must be computed pursuant to NRS 78.760, 78.765 and 92A.210, on the basis of the amount of
basic surplus of the insurer.
10. The fee for examining and
provisionally approving any record at any time before the record is presented
for filing is $125.
[Part 1:52:1933; A 1949, 363; 1951, 393]—(NRS A 1959,
689; 1975, 565; 1977,
403; 1979,
398; 1981,
141; 1983,
692; 1985,
1873; 1987,
1058; 1989,
979; 1991,
1241; 1993,
979; 1995,
1116; 2001,
1379, 3178,
3199; 2003, 225, 3107; 2003, 20th
Special Session, 39; 2005, 2252; 2007, 2650)
MISCELLANEOUS PROVISIONS
NRS 78.795 Registration of natural person or corporation willing to serve
as registered agent for corporation, limited-liability company or limited
partnership. Repealed. (See
chapter 221, Statutes of Nevada 2013, at page 899.)
