North Dakota Code 10-33-46 – Director conflicts of interest
1. A contract or other transaction between a corporation and its director or a member of the family of its director; a director of a related organization, or a member of the family of a director of a related organization; or an organization in or of which the corporation’s director, or a member of the family of its director, is a director, officer, or legal representative or has a material financial interest, is not void or voidable because the director or the other individual or organization are parties or because the director is present at the meeting of the members or the board or a committee at which the contract or transaction is authorized, approved, or ratified, if at least one of the requirements of subsection 2 is satisfied.
Terms Used In North Dakota Code 10-33-46
- Contract: A legal written agreement that becomes binding when signed.
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Individual: means a human being. See North Dakota Code 1-01-49
- Organization: includes a foreign or domestic association, business trust, corporation, enterprise, estate, joint venture, limited liability company, limited liability partnership, limited partnership, partnership, trust, or any legal or commercial entity. See North Dakota Code 1-01-49
- Person: means an individual, organization, government, political subdivision, or government agency or instrumentality. See North Dakota Code 1-01-49
- Quorum: The number of legislators that must be present to do business.
2. A contract or transaction described in subsection 1 is not void or voidable if:
a. The contract or transaction was, and the person asserting the validity of the contract or transaction has the burden of establishing that the contract or transaction was, fair and reasonable as to the corporation when it was authorized, approved, or ratified; b. The material facts as to the contract or transaction and as to the director’s interest are fully disclosed or known to the members and the contract or transaction is approved in good faith by two-thirds of the members entitled to vote, not counting any vote that the interested director might otherwise have, or the unanimous affirmative vote of all members, whether or not entitled to vote; c. The material facts as to the contract or transaction and as to the director’s interest are fully disclosed or known to the board or a committee, and the board or committee authorizes, approves, or ratifies the contract or transaction in good faith by a majority of directors or committee members currently holding office.
However, the interested director or directors may not vote and are not considered for purposes of a quorum. If as a result the number of remaining directors is not sufficient to reach a quorum, then a quorum for the purpose of considering the contract or transaction is the number of remaining directors or committee members, not counting any vote that the interested director might otherwise have, and not counting the director in determining the presence of a quorum; or
d. The contract or transaction is a merger or consolidation described in section 10-33-85.
3. For purposes of this section:
a. A director does not have a material financial interest in a resolution fixing the compensation of the director or fixing the compensation of another director as a director, officer, employee, or agent of the corporation, even though the first director is also receiving compensation from the corporation; b. A director has a material financial interest in an organization in which the director, or a member of the family of the director, has a material financial interest; and
c. A “member of the family” of a director is a spouse, parent, child, child of a spouse, brother, sister, or the spouse of any of them.
4. The procedures described under subdivisions a, b, and c of subsection 2 are not required if the contract or other transaction is between related organizations.