47-22-1
Definitions.
47-22-2
Applicability to domestic corporations.
47-22-2.1
Applicability to corporations existing prior to 1965.
47-22-3
Applicability to foreign corporations.
47-22-4
Purposes and authority of corporations--Particular purposes--Exceptions.
47-22-5
Incorporators--Articles of incorporation.
47-22-6
Contents of articles of incorporation--Necessary recitals.
47-22-7
Corporate name--Indication of purpose.
47-22-8
Repealed.
47-22-8.1
Use of same or similar name prohibited--Non-English name to be transliterated.
47-22-9
Reservation of name--Parties entitled to reserve.
47-22-10
Procedure for reservation of name--Maximum time of reservation.
47-22-11
Transfer of reserved right--Notification to secretary of state.
47-22-12
Articles of incorporation--Endorsement and filing by secretary of state--Issuance of
certificate of incorporation.
47-22-13
Commencement of corporate existence--Certificate as conclusive evidence of
compliance--Exceptions.
47-22-14
Amending articles of incorporation.
47-22-15
Procedure for amendment.
47-22-16
Resolution of amendment--Submission to members at meeting--Notice of meeting--Contents of notice--Written notice of adoption required--Majority vote required.
47-22-17
Procedure in absence of members entitled to vote--Adoption of amendment by board
of directors.
47-22-18
Submission of more than one amendment.
47-22-19
Articles of amendment--Contents of articles.
47-22-20
Delivery to secretary of state--Fees--Endorsement and filing--Issuance of certificate
of amendment.
47-22-21
Effective date of amendment.
47-22-22
Preexisting actions unaffected--Change of name as not abating action.
47-22-23
Restatement of articles of incorporation--Procedure.
47-22-24
Resolution of restatement--Submission to members.
47-22-25
Notice of proposed restatement--Contents of notice.
47-22-26
Vote of membership--Majority vote required.
47-22-27
Procedure in absence of members entitled to vote--Adoption of restatement by board
of directors.
47-22-28
Approval of restated articles--Contents of articles--Delivery to secretary of state.
47-22-28.1
Restated articles may incorporate proposed amendments--Conditions.
47-22-29
Approval by secretary of state--Fees--Endorsement and filing--Issuance of restated
certificate of incorporation.
47-22-30
Effective date of restated articles.
47-22-31
Meeting of first board of directors--Organization meeting--Notice of meeting.
47-22-32
First meeting of members--Notice of meeting.
47-22-33
Adoption of initial bylaws--Amendment of bylaws--Permissible contents of bylaws.
47-22-33.1
Method of providing notice to members or directors.
47-22-34
Changing number of board of directors--Bylaws controlling absent provision in
articles.
47-22-35
Emergency bylaws--Conditions creating emergency.
47-22-36 Provisions of emergency bylaws--Meetings of directors--Attendance--Priorities.
47-22-37 Modification of lines of succession during emergency.
47-22-38 Changing head office during emergency.
47-22-39 Duration of emergency bylaws.
47-22-40 Notice of meetings during emergency--Quorum.
47-22-41 Liability for actions during emergency--Willful misconduct.
47-22-42 to 47-22-51. Repealed.
47-22-52 Powers of corporation--Perpetual succession.
47-22-53 Powers of corporation--Capacity to sue and be sued.
47-22-54 Powers of corporation--Corporate seal.
47-22-55 Powers of corporation--Dealing in real or personal property.
47-22-56 Powers of corporation--Disposal of corporate assets.
47-22-57 Powers of corporation--Lending money.
47-22-58 Powers of corporation--Securities holdings--Government obligations.
47-22-59 Powers of corporation--Contracting--Borrowing--Issuance of securities.
47-22-60 Powers of corporation--Lending--Investing--Property holding.
47-22-61 Powers of corporation--Extraterritorial operations.
47-22-62 Powers of corporation--Officers and agents.
47-22-63 Powers of corporation--Adoption of bylaws.
47-22-64 Powers of corporation--Donations--Wartime donations.
47-22-65 Repealed.
47-22-65.1 Powers of corporation--Indemnification--Defense of actions.
47-22-65.2 Indemnification against expenses and attorneys' fees.
47-22-65.3 Authorization of indemnification--Requirements--Manner of determination.
47-22-65.4 Authorization of payment of expenses prior to final disposition of action--Receipt of undertaking--Terms and conditions.
47-22-65.5 Indemnification not exclusive of other rights--Continuation of benefits to former employees--Benefits to deceased employees.
47-22-65.6 Powers of corporation--Purchase and maintenance of liability insurance.
47-22-65.7 Corporation defined.
47-22-65.8 Definition of other terms.
47-22-66 Powers of corporation--Pension plans.
47-22-67 Powers of corporation--Cessation of activities.
47-22-68 Powers of corporation--Other powers.
47-22-68.1 Restrictions on private foundations--Definition of terms.
47-22-68.2 Restrictive provisions as to income and property deemed incorporated in foundation charter.
47-22-68.3 Self-dealing by foundation prohibited.
47-22-68.4 Distributions required of foundation.
47-22-68.5 Excess business holdings prohibited to foundation.
47-22-68.6 Investments which jeopardize charitable purpose prohibited to foundation.
47-22-68.7 Taxable expenditures prohibited to foundation.
47-22-68.8 Judicial determination that required restrictions would be contrary to charter.
47-22-68.9 State powers over corporation unimpaired.
47-22-69 Ultra vires unavailable to invalidate transfers of property.
47-22-70 Circumstances under which ultra vires may be asserted--Actions by members or directors--Injunctions.
47-22-71 Circumstances under which ultra vires may be asserted--Actions by corporation against officers or directors.
47-22-72 Circumstances under which ultra vires may be asserted--Actions by attorney general to dissolve or enjoin corporation.
47-22-73 Unauthorized acting as corporation--Liability.
47-22-74 Legislative power to prescribe additional regulations.
47-22-74.1 Privacy protection policy for social security numbers of volunteers.
47-22-75 Prior incorporations validated--Previously pending actions.
47-22-76 Rights vested under prior statutes unaffected.
47-22-77 Severability and saving clause.
47-22-78 Citation of nonprofit corporation law.
47-22-1. Definitions.
As used in chapters 47-22 to 47-28, inclusive, unless the context otherwise requires, the term:
(1) "Articles of incorporation" means the original or restated articles of incorporation or articles of consolidation and all amendments thereto including articles of merger.
(2) "Board of directors" means the group of persons vested with the management of the affairs of the corporation irrespective of the name by which such group is designated.
(3) "Bylaws" means the code or codes of rules adopted for the regulation or management of the affairs of the corporation irrespective of the name or names by which such rules are designated.
(4) "Corporation" or "domestic corporation" means a nonprofit corporation subject to the provisions of chapters 47-22 to 47-28, inclusive, except a foreign corporation.
(5) "Foreign corporation" means a nonprofit corporation organized under laws other than the laws of this state.
(6) "Insolvent" means inability of a corporation to pay its debts as they become due in the usual course of its affairs.
(7) "Member" means one having membership rights in a corporation in accordance with the provisions of its articles of incorporation or bylaws and may include municipal corporations of this state or other states;
(8) "Nonprofit corporation" means a corporation no part of the income or profit of which is distributable to its members, directors or officers.
Source: SL 1965, ch 24, § 2; SL 2001, ch 247, § 1.
47-22-2. Applicability to domestic corporations.
The provisions of chapters 47-22 to 47-28, inclusive, relating to domestic corporations shall apply to:
(1) All corporations organized hereunder; and
(2) All nonprofit corporations organized before July 1, 1965, under any act repealed.
Source: SL 1965, ch 24, § 3.
47-22-2.1. Applicability to corporations existing prior to 1965.
Any nonprofit corporation in existence prior to 1965 may continue to operate as provided by its charter notwithstanding chapters 47-22 to 47-28, inclusive.
Source: SL 1984, ch 300.
47-22-3. Applicability to foreign corporations.
The provisions of chapters 47-22 to 47-28, inclusive, relating to foreign corporations shall apply to all foreign nonprofit corporations doing or engaging in any business in this state for a purpose or purposes for which a corporation might be organized under this chapter.
Source: SL 1965, ch 24, § 3.
47-22-4. Purposes and authority of corporations--Particular purposes--Exceptions.
Corporations may be organized under this chapter for any lawful purpose, including, but not limited to, any one or more of the following purposes:
(1) Agricultural;
(2) Animal husbandry;
(3) Athletic;
(4) Benevolent;
(5) Charitable;
(6) Civic;
(7) Cultural;
(8) Educational;
(9) Eleemosynary;
(10) Fraternal;
(11) Horticultural;
(12) Literary;
(13) Patriotic;
(14) Political;
(15) Religious;
(16) Scientific;
(17) Social; and
(18) Professional, commercial, industrial, or trade association. However, labor unions, cooperative organizations, other than housing cooperatives, communals, and organizations subject to any of the provisions of the banking laws of this state may not be organized under this chapter. Notwithstanding any other provision of this title, any insurance organization formed under this chapter is subject to Title 58.
Source: SDC 1939, §§ 11.1401, 11.1501, 11.1701, 11.1801; SL 1965, ch 24, § 4; SL 1966, ch 17, § 2; SL 1972, ch 245; SL 1998, ch 271, § 1; SL 2016, ch 221, § 1.
47-22-5. Incorporators--Articles of incorporation.
One or more natural persons of the age of majority may act as incorporators of a corporation by delivering to the secretary of state the articles of incorporation for such corporation. Delivery may be made by electronic transmission if and to the extent permitted by the Office of the Secretary of State. If the document is filed in typewritten or printed form and not transmitted electronically, the Office of the Secretary of State may require one exact or conformed copy to be delivered with the document.
Source: SDC 1939, §§ 11.1501, 11.1801; SL 1965, ch 24, § 30; SL 1972, ch 154, § 10; SL 1989, ch 393, § 1; SL 1990, ch 367, § 13; SL 2012, ch 222, § 5; SL 2016, ch 221, § 2.
47-22-6. Contents of articles of incorporation--Necessary recitals.
The articles of incorporation shall set forth:
(1) The name of the corporation;
(2) The period of duration, which may be perpetual;
(3) The purpose or purposes for which the corporation is organized;
(4) If the corporation is to have no members, a statement to that effect;
(5) If the corporation is to have one or more classes of members, any provision which the incorporators elect to set forth in the articles of incorporation designating the class or classes of members and stating the qualifications and rights of the members of each class;
(6) If the directors or any of them are not to be elected or appointed by one or more classes of members, a statement of the manner in which such directors shall be elected or appointed;
(7) Any provisions, not inconsistent with law, which the incorporators elect to set forth in the articles of incorporation for the regulation of the internal affairs of the corporation, including any provision for distribution of assets on dissolution or final liquidation;
(8) The information required by § 59-11-6;
(9) The number of directors constituting the initial board of directors, and the names and addresses of the persons who are to serve as the initial directors; and
(10) The name and address of each incorporator.
It is not necessary to set forth in the articles of incorporation any of the corporate powers enumerated in chapters 47-22 to 47-28, inclusive.
Source: SDC 1939, §§ 11.1402, 11.1501, 11.1701, 11.1801; SL 1965, ch 24, § 31; SL 1989, ch 393, § 2; SL 1990, ch 367, § 14; SL 2004, ch 280, § 4; SL 2008, ch 275, § 62.
47-22-7. Corporate name--Indication of purpose.
The corporate name shall not contain any word or phrase which indicates or implies that it is organized for any purpose other than one or more of the purposes contained in its articles of incorporation.
Source: SL 1965, ch 24, § 7 (1).
47-22-8.1. Use of same or similar name prohibited--Non-English name to be transliterated.
In order to protect the public against confusion between corporations or between corporations and limited partnerships, the name of any nonprofit corporation:
(1) May not be the same as or must be distinguishable upon the records of the secretary of state from the name of any other corporation, whether for profit or not for profit, organized under the laws of this state; or the name of any foreign corporation, whether for profit or not for profit, authorized to engage in any business in this state; or any corporate name reserved or registered as permitted by the laws of this state; or the name of any limited partnership certified or registered in this state. Corporate names or limited partnership names already in use, with generic, proper, geographical, or descriptive terms which have acquired a secondary meaning shall be protected. This subdivision does not apply if the applicant files with the secretary of state either:
(a) The written consent signed by the president or a vice-president and by the secretary or an assistant secretary of the other corporation; by a holder of a reserved or registered name; or by a general partner of a limited partnership to use the same or a distinguishable name;
(b) A certified copy of a final decree of a court of competent jurisdiction establishing the prior right of the applicant to the use of such name in this state; or
(c) In the case of a foreign corporation if the corporate name is not available for use, a resolution of its board of directors adopting an assumed name for use in transacting business in this state, which assumed name is not deceptively similar to the name of any domestic corporation, any foreign corporation authorized to engage in any business in this state, or any corporate name reserved or registered as permitted by the laws of this state, or the name of any limited partnership certified or registered in this state, or any other assumed name filed with the secretary of state by a foreign corporation authorized to transact business in this state;
(2) Shall be transliterated into letters of the English alphabet, if it is not in English.
Source: SL 1989, ch 393, § 4; SL 1992, ch 323, § 1; SL 1998, ch. 272, § 1.
47-22-9. Reservation of name--Parties entitled to reserve.
The exclusive right to the use of a corporate name may be reserved by:
(1) Any person intending to organize a corporation under this chapter;
(2) Any domestic corporation intending to change its name;
(3) Any foreign corporation intending to make application for a certificate of authority to do or engage in any business in this state;
(4) Any foreign corporation authorized to do or engage in any business in this state and intending to change its name;
(5) Any person intending to organize a foreign corporation and intending to have such corporation make application for a certificate of authority to do or engage in any business in this state.
Source: SL 1965, ch 24, § 8.
47-22-10. Procedure for reservation of name--Maximum time of reservation.
The reservation of the exclusive right to the use of a corporate name shall be made by filing with the secretary of state an application to reserve a specified corporate name, executed by the applicant. If the secretary of state finds that the name is available for corporate use, he shall reserve the same for the exclusive use of the applicant for a period of one hundred twenty days, which period shall not be extended.
Source: SL 1965, ch 24, § 8.
47-22-11. Transfer of reserved right--Notification to secretary of state.
The right to the exclusive use of a specified corporate name reserved pursuant to § 47-22-9 may be transferred to any other person or corporation by filing in the Office of the Secretary of State a notice of such transfer, executed by the applicant for whom the name was reserved, and specifying the name and address of the transferee.
Source: SL 1965, ch 24, § 8.
47-22-12. Articles of incorporation--Endorsement and filing by secretary of state--Issuance of certificate of incorporation.
One original and one exact or conforming copy of the articles of incorporation shall be delivered to the secretary of state. If the secretary of state finds that the articles of incorporation conform to law, when all fees have been paid as prescribed in chapter 47-28, he shall:
(1) Endorse the word "filed" on the original and the copy and the month, day, and year of filing;
(2) File the original in his office; and
(3) Issue a certificate of incorporation to which he shall affix the copy.
The certificate of incorporation, together with the copy of the articles of incorporation affixed thereto, shall be returned to the incorporators or their representative.
Source: SL 1965, ch 24, § 32; SL 1989, ch 393, § 5.
47-22-13. Commencement of corporate existence--Certificate as conclusive evidence of compliance--Exceptions.
Upon the issuance of the certificate of incorporation, the corporate existence shall begin, and such certificate of incorporation shall be conclusive evidence that all conditions precedent required to be performed by the incorporators have been complied with and that the corporation has been incorporated under this chapter, except as against the state in a proceeding to cancel or revoke the certificate of incorporation or for involuntary dissolution of the corporation.
Source: SL 1965, ch 24, § 33.
47-22-14. Amending articles of incorporation.
A corporation may amend its articles of incorporation, from time to time, in any and as many respects as may be desired, so long as its articles of incorporation as amended contain only such provisions as are lawful under chapters 47-22 to 47-28, inclusive.
Source: SDC 1939, § 11.1302; SL 1965, ch 24, § 35.
47-22-15. Procedure for amendment.
Amendments to the articles of incorporation shall be made in the manner provided by § 47-22-16 or 47-22-17.
Source: SL 1965, ch 24, § 36.
47-22-16. Resolution of amendment--Submission to members at meeting--Notice of meeting--Contents of notice--Written notice of adoption required--Majority vote required.
If the members are entitled to vote on an amendment to the articles of incorporation, the board of directors or the members shall adopt a resolution setting forth the proposed amendment and directing that it be submitted to a vote at a meeting of members entitled to vote thereon, which may be either an annual or a special meeting. Written notice setting forth the proposed amendment or a summary of the changes to be effected thereby shall be given to each member entitled to vote at such meeting within the time and in the manner provided in chapter 47-23 for the giving of notice of meetings of members. If the members adopt a resolution setting forth a proposed amendment, written notice shall also be provided to the board of directors. The proposed amendment shall be adopted upon receiving at least a majority of the vote entitled to be cast by members present or represented by proxy at any meeting of the members.
Source: SL 1965, ch 24, § 36 (1); SL 2000, ch 221, § 1.
47-22-17. Procedure in absence of members entitled to vote--Adoption of amendment by board of directors.
Where there are no members, or no members entitled to vote on an amendment to the articles of incorporation, an amendment shall be adopted at a meeting of the board of directors upon receiving the vote of a majority of the directors in office.
Source: SL 1965, ch 24, § 36 (2).
47-22-18. Submission of more than one amendment.
Any number of amendments to the articles of incorporation may be submitted and voted upon at any one meeting.
Source: SL 1965, ch 24, § 36.
47-22-19. Articles of amendment--Contents of articles.
An original and an exact or conforming copy of the articles of amendment shall be executed by the chairman of the board of directors, by the corporation's president, or by another of its officers or, if the corporation has not been formed, by an incorporator, and shall set forth:
(1) The name of the corporation;
(2) The amendment so adopted;
(3) If there are members entitled to vote thereon:
(a) A statement setting forth the date of the meeting of members at which the amendment was adopted, that a quorum was present at such meeting, and that such amendment received at least a majority of the votes entitled to be cast by members present or represented by proxy at such meeting; or
(b) A statement that such amendment was adopted by a consent in writing signed by all members entitled to vote with respect thereto;
(4) If there are no members, or no members entitled to vote thereon, a statement of such fact, the date of the meeting of the board of directors at which the amendment was adopted, and a statement of the fact that such amendment received the vote of a majority of the directors in office.
Source: SL 1965, ch 24, § 37; SL 1989, ch 393, § 6; SL 1990, ch 367, § 15.
47-22-20. Delivery to secretary of state--Fees--Endorsement and filing--Issuance of certificate of amendment.
The original and the copy of the articles of amendment shall be delivered to the secretary of state. If the secretary of state finds that the articles of amendment conform to law, when all fees have been paid as prescribed in chapter 47-28, he shall:
(1) Endorse the word "filed" on the original and the copy and the month, day, and year of filing;
(2) File the original in his office; and
(3) Issue a certificate of amendment to which he shall affix the copy.
The certificate of amendment, together with the copy of the articles of amendment affixed thereto, shall be returned to the corporation or its representative.
Source: SL 1965, ch 24, § 38; SL 1989, ch 393, § 7.
47-22-21. Effective date of amendment.
Upon the issuance of the certificate of amendment by the secretary of state, the amendment shall become effective and the articles of incorporation shall be deemed to be amended accordingly.
Source: SL 1965, ch 24, § 38.
47-22-22. Preexisting actions unaffected--Change of name as not abating action.
No amendment to the articles of incorporation shall affect any existing cause of action in favor of or against such corporation, or any pending action to which such corporation shall be a party, or the existing rights of persons other than members; and, in the event the corporation name shall be changed by amendment, no action brought by or against such corporation under its former name shall abate for that reason.
Source: SDC 1939, § 11.1302; SL 1965, ch 24, § 38.
47-22-23. Restatement of articles of incorporation--Procedure.
A domestic corporation may at any time restate its articles of incorporation as theretofore amended, in the manner provided by §§ 47-22-24 to 47-22-30, inclusive.
Source: SL 1965, ch 24, § 39.
47-22-24. Resolution of restatement--Submission to members.
If there are members entitled to vote thereon, the board of directors shall adopt a resolution setting forth the proposed restated articles of incorporation and directing that they be submitted to a vote at a meeting of members entitled to vote thereon, which may be either an annual or a special meeting.
Source: SL 1965, ch 24, § 39.
47-22-25. Notice of proposed restatement--Contents of notice.
Written notice setting forth the proposed restated articles or a summary of the provisions thereof shall be given to each member entitled to vote thereon, within the time and in the manner provided in chapter 47-23 for the giving of notice of meetings of members. If the meeting be an annual meeting, the proposed restated articles or a summary of the provisions thereof may be included in the notice of such annual meeting.
Source: SL 1965, ch 24, § 39.
47-22-26. Vote of membership--Majority vote required.
At the meeting required by § 47-22-25 a vote of the members entitled to vote thereon shall be taken on the proposed restated articles, which shall be adopted upon receiving the affirmative vote of a majority of the members entitled to vote thereon present at such meeting or represented by proxy.
Source: SL 1965, ch 24, § 39.
47-22-27. Procedure in absence of members entitled to vote--Adoption of restatement by board of directors.
If there are no members, or no members entitled to vote thereon, the proposed restated articles shall be adopted at a meeting of the board of directors upon receiving the affirmative vote of a majority of the directors in office.
Source: SL 1965, ch 24, § 39.
47-22-28. Approval of restated articles--Contents of articles--Delivery to secretary of state.
Upon approval pursuant to § 47-22-26 or 47-22-27, one original and one exact or conforming copy of the restated articles of incorporation shall be executed by the chairman of the board of directors, by its president, or by another of its officers and shall set forth:
(1) The name of the corporation;
(2) The period of its duration;
(3) The purpose or purposes which the corporation is authorized to pursue; and
(4) Any other provisions, not inconsistent with law, which are then set forth in the articles of incorporation as theretofore amended, except that it shall not be necessary to set forth in the restated articles of incorporation the registered office of the corporation, its registered agent, its directors, or its incorporators.
The restated articles of incorporation shall state that they correctly set forth the provisions of the articles of incorporation as theretofore amended, that they have been duly adopted as required by law and that they supersede the original articles of incorporation and all amendments thereto.
The original and the copy of the restated articles of incorporation shall be delivered to the secretary of state.
Source: SL 1965, ch 24, § 39; SL 1989, ch 393, § 8.
47-22-28.1. Restated articles may incorporate proposed amendments--Conditions.
When filing restated articles of incorporation with the secretary of state pursuant to § 47-22-28, the restated articles may incorporate proposed amendments if:
(1) The provisions of §§ 47-22-16 and 47-22-17 have been complied with;
(2) The information required pursuant to § 47-22-19 accompanies the filing;
(3) The filing contains a statement that, except for any indicated amendment, the restated articles of incorporation correctly set forth without change the corresponding provisions of the articles of incorporation; and
(4) The filing contains a statement that the restated articles of incorporation as amended supersede the original articles of incorporation and all previous amendments.
Source: SL 1999, ch 219, § 1.
47-22-29. Approval by secretary of state--Fees--Endorsement and filing--Issuance of restated certificate of incorporation.
If the secretary of state finds that restated articles delivered to him pursuant to § 47-22-28 conform to law, when all fees have been paid as prescribed in chapter 47-28, he shall:
(1) Endorse the word "filed" on the original and the copy and the month, day, and year of filing;
(2) File the original in his office; and
(3) Issue a restated certificate of incorporation to which he shall affix the copy.
The restated certificate of incorporation, together with the copy of the restated articles of incorporation affixed thereto, shall be returned to the corporation or its representative.
Source: SL 1965, ch 24, § 39; SL 1989, ch 393, § 9.
47-22-30. Effective date of restated articles.
Upon the issuance of the restated certificate of incorporation by the secretary of state, the restated articles of incorporation shall become effective and shall supersede the original articles of incorporation and all amendments thereto.
Source: SL 1965, ch 24, § 39.
47-22-31. Meeting of first board of directors--Organization meeting--Notice of meeting.
After the issuance of the certificate of incorporation an organization meeting of the board of directors named in the articles of incorporation shall be held, either within or without this state, at the call of a majority of the incorporators, for the purpose of adopting bylaws, electing officers and the transaction of such other business as may come before the meeting. The incorporators calling the meeting shall give at least three days' notice thereof by mail to each director so named, which notice shall state the time and place of the meeting.
Source: SL 1965, ch 24, § 34.
47-22-32. First meeting of members--Notice of meeting.
A first meeting of the members may be held at the call of the directors, or a majority of them, upon at least three days' notice, for such purposes as shall be stated in the notice of the meeting.
Source: SL 1965, ch 24, § 34.
47-22-33. Adoption of initial bylaws--Amendment of bylaws--Permissible contents of bylaws.
The initial bylaws of a corporation shall be adopted by its board of directors. The power to alter, amend, or repeal the bylaws or adopt new bylaws shall be vested in the board of directors unless otherwise provided in the articles of incorporation or the bylaws. The bylaws may contain any provisions for the regulation and management of the affairs of a corporation not inconsistent with law or the articles of incorporation.
Source: SDC 1939, §§ 11.1407, 11.1501, 11.1502; SL 1965, ch 24, § 13.
47-22-33.1. Method of providing notice to members or directors.
If so provided in the articles of incorporation or bylaws of the corporation, any written notice required to be provided to any member or director pursuant to any provision of chapters 47-22 to 47-28, inclusive, may be sent by any reasonable means of transmission set forth in the articles of incorporation or bylaws of the corporation, including, but not limited to, traditional mail, hand delivery, email, or electronic facsimile.
Source: SL 2016, ch 221, § 15.
47-22-34. Changing number of board of directors--Bylaws controlling absent provision in articles.
Unless the articles of incorporation provide that a change in the number of directors shall be made only by amendment to the articles of incorporation, a change in the number of directors made by amendment to the bylaws shall be controlling. In all other cases, whenever a provision of the articles of incorporation is inconsistent with a bylaw, the provision of the articles of incorporation shall be controlling.
Source: SL 1965, ch 24, § 31.
47-22-35. Emergency bylaws--Conditions creating emergency.
The board of directors of any corporation may adopt emergency bylaws, which shall, notwithstanding any different provision elsewhere in chapters 47-22 to 47-28, inclusive, or in the articles of incorporation or bylaws, be operative during any emergency in the conduct of the affairs of the corporation resulting from any national security, national health, or other declared emergency requiring such action.
Source: SL 1965, ch 24, § 14; SL 2021, ch 195, § 1, eff. Mar. 3, 2021.
47-22-36. Provisions of emergency bylaws--Meetings of directors--Attendance--Priorities.
The emergency bylaws adopted pursuant to § 47-22-35 may make any provision that may be practical and necessary for the circumstances of the emergency, including provisions that:
(1) A meeting of the board of directors may be called by any officer or director in such manner and under such conditions as shall be prescribed in the emergency bylaws;
(2) The director or directors in attendance at the meeting, or any greater number fixed by the emergency bylaws, shall constitute a quorum; and
(3) The officers or other persons designated on a list approved by the board of directors before the emergency, all in such order or priority and subject to such conditions and for such period of time (not longer than reasonably necessary after the termination of the emergency) as may be provided in the emergency bylaws or in the resolution approving the list, shall, to the extent required to provide a quorum at any meeting of the board of directors be deemed directors for such meeting.
Source: SL 1965, ch 24, § 14.
47-22-37. Modification of lines of succession during emergency.
The board of directors, either before or during any emergency described in § 47-22-35, may provide, and from time to time modify, lines of succession in the event that during any such emergency any or all officers or agents of the corporation shall for any reason be rendered incapable of discharging their duties.
Source: SL 1965, ch 24, § 14.
47-22-38. Changing head office during emergency.
The board of directors, either before or during any emergency described in § 47-22-35, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers so to do.
Source: SL 1965, ch 24, § 14.
47-22-39. Duration of emergency bylaws.
To the extent not inconsistent with any emergency bylaws adopted pursuant to § 47-22-35, the bylaws of the corporation shall remain in effect during any emergency described in § 47-22-35 and upon its termination the emergency bylaws shall cease to be operative.
Source: SL 1965, ch 24, § 14.
47-22-40. Notice of meetings during emergency--Quorum.
Unless otherwise provided in emergency bylaws, notice of any meeting of the board of directors during any emergency described in § 47-22-35 may be given only to such of the directors as it may be feasible to reach at the time and by such means as may be feasible at the time, including publication or radio.
To the extent required to constitute a quorum at any meeting of the board of directors during any such emergency, the officers of the corporation who are present shall, unless otherwise provided in emergency bylaws, be deemed, in order of rank and within the same rank in order of seniority, directors for such meeting.
Source: SL 1965, ch 24, § 14.
47-22-41. Liability for actions during emergency--Willful misconduct.
No officer, director, or employee acting in accordance with any emergency bylaws shall be liable except for willful misconduct. No officer, director, or employee shall be liable for any action taken by him in good faith in any emergency described in § 47-22-35 in furtherance of the ordinary affairs of the corporation even though not authorized by the bylaws then in effect.
Source: SL 1965, ch 24, § 14.
47-22-52. Powers of corporation--Perpetual succession.
Each corporation shall have power to have perpetual succession by its corporate name unless a limited period of duration is stated in its articles of incorporation.
Source: SDC 1939, § 11.1405; SL 1965, ch 24, § 5 (1).
47-22-53. Powers of corporation--Capacity to sue and be sued.
Each corporation shall have power to sue and be sued, complain and defend, in its corporate name.
Source: SL 1965, ch 24, § 5 (2).
47-22-54. Powers of corporation--Corporate seal.
Each corporation shall have power to have a corporate seal which may be altered at pleasure, and to use the same by causing it, or a facsimile thereof, to be impressed or affixed or in any other manner reproduced.
Source: SL 1965, ch 24, § 5 (3).
47-22-55. Powers of corporation--Dealing in real or personal property.
Each corporation shall have power to purchase, take, receive, lease, take by gift, devise or bequest, or otherwise acquire, own, hold, improve, use and otherwise deal in and with, real or personal property, or any interest therein, wherever situated.
Source: SDC 1939, §§ 11.1703, 11.1803; SL 1965, ch 24, § 5 (4).
47-22-56. Powers of corporation--Disposal of corporate assets.
Each corporation shall have power to sell, convey, mortgage, pledge, lease, exchange, transfer, and otherwise dispose of all or any part of its property and assets.
Source: SL 1965, ch 24, § 5 (5).
47-22-57. Powers of corporation--Lending money.
Each corporation shall have power to lend money to its employees other than its officers and directors, and otherwise assist its employees, officers, and directors.
Source: SL 1965, ch 24, § 5 (6).
47-22-58. Powers of corporation--Securities holdings--Government obligations.
Each corporation shall have power to purchase, take, receive, subscribe for, or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge, or otherwise dispose of, and otherwise use and deal in and with, shares or other interests in, or obligations of, other domestic, or foreign corporations, whether for profit or not for profit, associations, partnerships, or individuals, or direct or indirect obligations of the United States, or of any other government, state, territory, governmental district, or municipality or of any instrumentality thereof.
Source: SL 1965, ch 24, § 5 (7).
47-22-59. Powers of corporation--Contracting--Borrowing--Issuance of securities.
Each corporation shall have power to make contracts and incur liabilities, borrow money at such rates of interest as the corporation may determine, issue its notes, bonds, and other obligations, and secure any of its obligations by mortgage or pledge of all or any of its property, franchises, and income.
Source: SL 1965, ch 24, § 5 (8).
47-22-60. Powers of corporation--Lending--Investing--Property holding.
Each corporation shall have power to lend money for its corporate purposes, invest and reinvest its funds, and take and hold real and personal property as security for the payment of funds so loaned or invested.
Source: SL 1965, ch 24, § 5 (9).
47-22-61. Powers of corporation--Extraterritorial operations.
Each corporation shall have power to conduct its affairs, carry on its operations, and have offices and exercise the powers granted by chapters 47-22 to 47-28, inclusive, in any state, territory, district, or possession of the United States, or in any foreign country.
Source: SL 1965, ch 24, § 5 (10).
47-22-62. Powers of corporation--Officers and agents.
Each corporation shall have power to elect or appoint officers and agents of the corporation, who may be directors or members, and define their duties and fix their compensation.
Source: SL 1965, ch 24, § 5 (11).
47-22-63. Powers of corporation--Adoption of bylaws.
Each corporation shall have power to make and alter bylaws, not inconsistent with its articles of incorporation or with the laws of this state, for the administration and regulation of the affairs of the corporation.
Source: SDC 1939, §§ 11.1407, 11.1501, 11.1502; SL 1965, ch 24, § 5 (12).
47-22-64. Powers of corporation--Donations--Wartime donations.
Each corporation shall have power to make donations for the public welfare or for charitable, scientific, or educational purposes; and in time of war to make donations in aid of war activities.
Source: SL 1965, ch 24, § 5 (13).
47-22-65.1. Powers of corporation--Indemnification--Defense of actions.
Each nonprofit corporation may:
(1) 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, other than an action by or in the right of the corporation, by reason of the fact that that 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, limited liability company, partnership, joint venture, trust, or other enterprise, against expenses, including attorneys' fee, judgments, fines, and amounts paid in settlement actually and reasonably incurred by that person in connection with such action, suit, or proceeding if that person acted in good faith and in a manner that person 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 such conduct was unlawful. 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 did not act in good faith and in a manner which that person 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 reasonable cause to believe that such conduct was unlawful; and
(2) 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 that 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, limited liability company, partnership, joint venture, trust, or other enterprise against expenses, including attorneys' fees, actually and reasonably incurred by that person in connection with the defense or settlement of such action or suit if that person acted in good faith and in a manner that person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification may be made in respect of any claim, issue or matter as to which such person has been adjudged to be liable for negligence or misconduct in performance of any duty to the corporation unless and only to the extent that the court in which such action or suit was brought determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expenses which the court deems proper.
Source: SL 1986, ch 388, § 2; SL 1994, ch 351, § 124.
47-22-65.2. Indemnification against expenses and attorneys' fees.
To the extent that a director, officer, employee, or agent of a nonprofit corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subdivisions 47-22-65.1(1) and (2), or in defense of any claim, issue or matter therein, he shall be indemnified against expenses, including attorneys' fees, actually and reasonably incurred by him in connection therewith.
Source: SL 1986, ch 388, § 3.
47-22-65.3. Authorization of indemnification--Requirements--Manner of determination.
Any indemnification under subdivisions 47-22-65.1(1) and (2), unless ordered by a court, shall 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 because he has met the applicable standard of conduct set forth in subdivisions 47-22-65.1(1) and (2). Such determination shall be made by the board of directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit, or proceeding, or if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion.
Source: SL 1986, ch 388, § 4.
47-22-65.4. Authorization of payment of expenses prior to final disposition of action--Receipt of undertaking--Terms and conditions.
Any expense incurred by an officer or director in defending a civil or criminal action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit, or proceeding as authorized by the board of directors in the specific case upon receipt of an undertaking by or on behalf of such director or officer to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the corporation as authorized by §§ 47-22-65.1 to 47-22-65.8, inclusive. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of directors deems appropriate.
Source: SL 1986, ch 388, § 5.
47-22-65.5. Indemnification not exclusive of other rights--Continuation of benefits to former employees--Benefits to deceased employees.
No indemnification provided by §§ 47-22-65.1 to 47-22-65.8, inclusive, is exclusive of any other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs and personal representatives of such a person.
Source: SL 1986, ch 388, § 6.
47-22-65.6. Powers of corporation--Purchase and maintenance of liability insurance.
Any nonprofit corporation may purchase and maintain insurance 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, limited liability company, partnership, joint venture, trust, or other enterprise against any liability asserted against that person and incurred by that person in such capacity, or arising out of such status, whether or not the corporation would have the power to indemnify that person against such liability under the provisions of §§ 47-22-65.1 to 47-22-65.8, inclusive.
Source: SL 1986, ch 388, § 7; SL 1994, ch 351, § 125.
47-22-65.7. Corporation defined.
For purposes of §§ 47-22-65.1 to 47-22-65.8, inclusive, references to "the corporation" includes, in addition to the resulting corporation, any constituent corporation, including any constituent of a constituent, which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee, or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee, or agent of another corporation, limited liability company, partnership, joint venture, trust, or other enterprise, shall stand in the same position under the provisions of §§ 47-22-65.1 to 47-22-65.8, inclusive, with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued.
Source: SL 1986, ch 388, § 8; SL 1994, ch 351, § 126.
47-22-65.8. Definition of other terms.
For purposes of §§ 47-22-65.1 to 47-22-65.8, inclusive, references to "other enterprises" include employee benefit plans; references to "fines" include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the corporation" include any service as a director, officer, employee, or agent of the corporation which impose duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants or beneficiaries. Any person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan is deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in §§ 47-22-65.1 to 47-22-65.8, inclusive.
Source: SL 1986, ch 388, § 9.
47-22-66. Powers of corporation--Pension plans.
Each corporation shall have power to pay pensions and establish pension plans or pension trusts for any or all of its directors, officers, and employees.
Source: SL 1965, ch 24, § 5 (15).
47-22-67. Powers of corporation--Cessation of activities.
Each corporation shall have power to cease its corporate activities and surrender its corporate franchise.
Source: SL 1965, ch 24, § 5 (16).
47-22-68. Powers of corporation--Other powers.
Each corporation shall have power to have and exercise all powers necessary or convenient to effect any or all of the purposes for which the corporation is organized.
Source: SL 1965, ch 24, § 5 (17).
47-22-68.1. Restrictions on private foundations--Definition of terms.
Terms as used in §§ 47-22-68.1 to 47-22-68.9, inclusive, shall have the following meaning:
(1) "Excess business holdings," as defined in section 4943(c) of the Internal Revenue Code;
(2) "Internal Revenue Code," the United States Internal Revenue Code of 1954, as amended;
(3) "Private foundation," as defined in section 509(a) of the Internal Revenue Code;
(4) "Self-dealing," as defined in section 4941(d) of the Internal Revenue Code;
(5) "Taxable expenditure," as defined in section 4945(d) of the Internal Revenue Code.
Source: SL 1972, ch 244, § 1.
47-22-68.2. Restrictive provisions as to income and property deemed incorporated in foundation charter.
Any instrument creating a corporation which is a private foundation and any instrument governing the use, retention, or disposition by such corporation of any of its income or property shall be deemed to have incorporated within such instrument with the same effect as though such language were set forth verbatim in such instrument the provisions set forth in §§ 47-22-68.3 to 47-22-68.7, inclusive, and except as the contrary is provided in §§ 47-22-68.8 and 47-22-68.9, such provisions shall govern the corporation as to the use, retention, and disposition of its income and property irrespective of any provisions of any such instrument, statute, or other law of this state to the contrary.
Source: SL 1972, ch 244, § 2.
47-22-68.3. Self-dealing by foundation prohibited.
The corporation described in § 47-22-68.2 shall not engage in any act of self-dealing which would give rise to any liability for the tax imposed by section 4941(a) of the Internal Revenue Code.
Source: SL 1972, ch 244, § 2 (2).
47-22-68.4. Distributions required of foundation.
The corporation described in § 47-22-68.2 shall distribute for each of its taxable years amounts at least sufficient to avoid liability for the tax imposed by section 4942(a) of the Internal Revenue Code.
Source: SL 1972, ch 244, § 2 (1).
47-22-68.5. Excess business holdings prohibited to foundation.
The corporation described in § 47-22-68.2 shall not retain any excess business holdings which would give rise to any liability for the tax imposed by section 4943(a) of the Internal Revenue Code.
Source: SL 1972, ch 244, § 2 (3).
47-22-68.6. Investments which jeopardize charitable purpose prohibited to foundation.
The corporation described in § 47-22-68.2 shall not make any investments which would jeopardize the carrying out of any of the exempt purposes of the corporation, within the meaning of section 4944 of the Internal Revenue Code so as to give rise to any liability for the tax imposed by section 4944(a) of the Internal Revenue Code.
Source: SL 1972, ch 244, § 2 (4).
47-22-68.7. Taxable expenditures prohibited to foundation.
The corporation described in § 47-22-68.2 shall not make any taxable expenditure which would give rise to any liability for the tax imposed by section 4945(a) of the Internal Revenue Code.
Source: SL 1972, ch 244, § 2 (5).
47-22-68.8. Judicial determination that required restrictions would be contrary to charter.
Sections 47-22-68.2 to 47-22-68.7, inclusive, shall not apply to any corporation to the extent that a court of competent jurisdiction shall determine that such application would be contrary to the terms of any instrument described in § 47-22-68.2 and that such instrument may not properly be changed to conform to §§ 47-22-68.2 to 47-22-68.7, inclusive.
Source: SL 1972, ch 244, § 3.
47-22-68.9. State powers over corporation unimpaired.
Nothing in §§ 47-22-68.1 to 47-22-68.8, inclusive, shall impair the rights and powers of the attorney general or the courts of this state with respect to any corporation.
Source: SL 1972, ch 244, § 4.
47-22-69. Ultra vires unavailable to invalidate transfers of property.
No act of a corporation and no conveyance or transfer of real or personal property to or by a corporation shall be invalid by reason of the fact that the corporation was without capacity or power to do such act or to make or receive such conveyance or transfer.
Source: SL 1965, ch 24, § 6.
47-22-70. Circumstances under which ultra vires may be asserted--Actions by members or directors--Injunctions.
Notwithstanding § 47-22-69, the fact that a corporation is without capacity or power to do an act or to make or receive a conveyance or transfer of real or personal property may be asserted in a proceeding by a member or a director against the corporation to enjoin the doing or continuation of unauthorized acts, or the transfer of real or personal property by or to the corporation. If the unauthorized acts or transfer sought to be enjoined are being, or are to be, performed pursuant to any contract to which the corporation is a party, the court may, if all of the parties to the contract are parties to the proceeding and if it deems the same to be equitable, set aside and enjoin the performance of such contract, and in so doing may allow to the corporation or the other parties to the contract, as the case may be, compensation for the loss or damage sustained by either of them which may result from the action of the court in setting aside and enjoining the performance of such contract, but anticipated profits to be derived from the performance of the contract shall not be awarded by the court as a loss or damage sustained.
Source: SL 1965, ch 24, § 6 (1).
47-22-71. Circumstances under which ultra vires may be asserted--Actions by corporation against officers or directors.
Notwithstanding § 47-22-69, the fact that a corporation was without capacity or power to do an act or to make or receive a conveyance or transfer of real or personal property may be asserted in a proceeding by the corporation, whether acting directly or through a receiver, trustee, or other legal representative, or through members in a representative suit, against the officers or directors of the corporation for exceeding their authority.
Source: SL 1965, ch 24, § 6 (2).
47-22-72. Circumstances under which ultra vires may be asserted--Actions by attorney general to dissolve or enjoin corporation.
Notwithstanding § 47-22-69, the fact that a corporation is without capacity or power to do an act or to make or receive a conveyance or transfer of real or personal property may be asserted in a proceeding by the attorney general, as provided in chapter 47-26, to dissolve the corporation, or in a proceeding by the attorney general to enjoin the corporation from performing unauthorized acts, or in any other proceeding by the attorney general.
Source: SL 1965, ch 24, § 6 (3).
47-22-73. Unauthorized acting as corporation--Liability.
All persons who assume to act as a corporation without authority so to do shall be jointly and severally liable for all debts and liabilities incurred or arising as a result thereof.
Source: SL 1965, ch 24, § 98.
47-22-74. Legislative power to prescribe additional regulations.
The Legislature shall at all times have power to prescribe such regulations, provisions, and limitations as it may deem advisable, which regulations, provisions, and limitations shall be binding upon any and all corporations subject to the provisions of chapters 47-22 to 47-28, inclusive, and the Legislature shall have power to amend, repeal, or modify said chapters at pleasure.
Source: SL 1965, ch 24, § 100.
47-22-74.1. Privacy protection policy for social security numbers of volunteers.
Before a nonprofit corporation in the regular course of business or in the provision of services requests that a volunteer provide the volunteer's social security number, the corporation shall adopt a privacy protection policy that sets forth the manner in which the corporation intends to secure and protect any social security numbers in its possession or in the possession of a third party with whom the corporation shares or will share the numbers. The policy must specify measures that limit access to social security numbers and processes and procedures that mitigate against the improper disclosure of social security numbers. The corporation shall:
(1) Provide the policy to any volunteer who has been requested to provide the volunteer's social security number to the nonprofit corporation; and
(2) Make the policy available in printed form, upon request.
Source: SL 2019, ch 197, § 1.
47-22-75. Prior incorporations validated--Previously pending actions.
All articles of incorporation, including amendments, of any association, society, or corporation established for charitable purposes filed in the Office of the Secretary of State of this state prior to July 1, 1957 which did not set forth the amount of property of any kind such association, society, or corporation might hold or the disposition to be made of its property in case of its dissolution and all acts done in reliance thereon are hereby in all things legalized, cured, and validated and are hereby declared to be in all respects of like force and effect as though such articles had set forth such matters.
No action or proceeding filed and pending on July 1, 1957 shall be barred or the rights of any party thereto in any manner affected by the enactment of this section.
Source: SL 1957, ch 506, §§ 1, 2; SDC Supp 1960, § 65.0338.
47-22-76. Rights vested under prior statutes unaffected.
No rights, privileges, and immunities vested or accrued by and under prior statutes repealed by chapter 24 of the Session Laws of 1965, no suit pending, no rights of action conferred, and no duties, restrictions, liabilities, and penalties imposed or required by and under such statutes shall be impaired, diminished, or affected thereby.
Source: SL 1965, ch 24, § 101.
47-22-77. Severability and saving clause.
If a court of competent jurisdiction shall adjudge to be invalid or unconstitutional any clause, sentence, paragraph, section, or part of chapters 47-22 to 47-28, inclusive, such judgment or decree shall not affect, impair, invalidate, or nullify the remainder of said chapters, but the effect thereof shall be confined to the clause, sentence, paragraph, section, or part of said chapters so adjudged to be invalid or unconstitutional.
Source: SL 1965, ch 24, § 102.
