Tribal Code

Warm Springs Tectonite Cement (WSTC) Plan of Operation

WARM SPRINGS TRIBAL CODE
CHAPTER 630
PLAN OF OPERATION OF WARM SPRINGS TECTONITE CEMENT

Table of Contents

I. IDENTITY
Section 1. Name
Section 2. Place of Business
Section 3. Definitions

II. PURPOSES, OBJECTIVES AND PRIORITIES

III. GENERAL POWERS
Section 1. Board of Directors
Section 2. Number
Section 3. Classification and Term of Office
Section 4. Appointment of Directors
Section 5. Resignation
Section 6. Removal
Section 7. Vacancies
Section 8. Regular Meetings
Section 9. Special Meetings
Section 10. Notice
Section 11. Quorum
Section 12. Manner of Acting
Section 13. Action by Unanimous Written Consent
Section 14. Compensation and Expenses

IV. COMMITTEES
Section 1. Appointment
Section 2. Meetings

V. OFFICERS
Section 1. Principal Officers
Section 2. Election and Term of Office
Section 3. Removal
Section 4. Vacancies
Section 5. Chairman of the Board
Section 6. Vice-Chairman
Section 7. Secretary-Treasurer of WSTC
Section 8. Additional Officers
Section 9. Compensation and Expenses

VI. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. General
Section 2. Derivative Actions
Section 3. Indemnification in Certain Cases
Section 4. Procedure
Section 5. Advances for Expenses
Section 6. Rights Not Exclusive
Section 7. Insurance

VII. MANAGEMENT

VIII. CONTRACTS, FINANCES AND REPORTS
Section 1. Contracts Generally
Section 2. Bank Accounts
Section 3. Budget and Financial Planning
Section 4. Accounting and Operating Reports
Section 5. Audits
Section 6. Insurance

IX. CAPITAL
Section 1. Sources of Funds
Section 2. Use of Retained Earnings
Section 3. Distribution

X. FISCAL YEAR

XI. AMENDMENTS

 

PLAN OF OPERATION OF WARM SPRINGS TECTONITE CEMENT 1

I. IDENTITY

Section 1. Name. The official name of this Tribal enterprise shall be “Warm Springs Tectonite Cement,” hereinafter referred to as “WSTC.”

Section 2. Place of Business. The principal place of business of WSTC shall be located on the Warm Springs Reservation of Oregon.

Section 3. Definitions. Wherever used herein, and unless otherwise indicated, the following terms shall have the meanings indicated:

  1. “Council” means the Tribal Council of the Tribe.
  2. “Management” means the person, persons, firm or firms employed by WSTC to provide management services.
  3. “Member” means a duly enrolled member of the Tribe.
  4. “Reservation” means the Warm Springs Reservation of Oregon.
  5. “Tribe” means the Confederated Tribes of the Warm Springs Reservation of Oregon.

II. PURPOSES, OBJECTIVES AND PRIORITIES

The purposes, objectives and priorities of WSTC are to develop a profitable, long-term enterprise that will provide Tribal Members and the Warm Springs community with gainful employment, good wages and incentives and solid advancement opportunities. WSTC shall at all times conduct its operations openly, honestly and professionally and shall manage its operations based upon the following three priorities:

  1. The first priority is to earn a level of profit and economic return for the Tribe and its members consistent with that which an efficient and well-run manufacturing operation would earn under similar economic conditions so WSTC can fund long term growth and increase tribal assets,
  2. The second priority is to provide Tribe and its members with employment opportunities and such social benefits as may flow there from,
  3. The third priority is to provide Tribe and its members with education and training benefits and such social benefits as may flow there from.

III. GENERAL POWERS

WSTC, subject to any restriction contained in the Constitution and laws of the United States, or in the corporate charter, constitution and bylaws of the Tribe, or in this Plan of Operation, shall do and perform every act and thing whatsoever which it shall deem necessary, expedient or advisable to carry out the purposes and objectives of WSTC and the provisions of this Plan of Operation. Without limiting the generality of the foregoing, WSTC shall have the power to obtain capital from the Federal Government, from other governmental entities and from one or more responsible financial institutions or individuals or entities, and to negotiate and enter into security agreements with such financial institutions, individuals, entities and the Federal Government for repayment thereof; to negotiate and execute contracts for management services; to construct, or cause to be constructed, to purchase, or cause to be purchased, to equip, or cause to be equipped, and to operate, or cause to be operated, an industrial complex suitable to the manufacture and distribution of Tectonite Cement and related products. To exercise such further powers, not inconsistent with law, as may be necessary to the conduct of the business of WSTC.

Section 1. Board of Directors. The business and affairs of WSTC shall be managed and controlled by a Board of Directors.

Section 2. Number. The Board of Directors shall consist of not less than three nor more than five directors. Directors may be members of the Tribe or nonmembers of the Tribes who are interested in the economic and social development of the Tribe and its members and who possess expertise in marketing, management, manufacturing, finance, banking or some other field which would benefit WSTC, provided, at all times a majority of the members of the Board of Directors shall be members of the Tribe. No person shall concurrently serve on the Board of Directors and the Tribal Council.

Section 3. Classification and Term of Office.

  1. The Board of Directors shall be divided into three classes, designated Class I, Class II and Class III, as follows: (a) Class I shall consist of one individual who shall have an initial term in office expiring on the December 31, next following the Class I director’s appointment by the Council, or until a successor is appointed and takes office. (b) Class II shall consist of one or two individuals who shall have an initial term in office expiring one year after the expiration of the initial term of the Class I director, or until their successors are appointed and take office. (c) Class III shall consist of one or two individuals who shall have an initial term in office expiring two years after the expiration of the initial term of the Class I director, or until their successors are appointed and take office.
  2. After the expiration of the initial term of directors, the term of office of each of said classes shall be three years from the expiration date of each class as set forth above, or until their successors are appointed and take office.
  3. Directors shall be eligible for reappointment.

Section 4. Appointment of Directors. Directors shall be appointed by resolution of the Council.

Section 5. Resignation. Any director of WSTC may resign at any time, either by oral tender of resignation at any meeting of the Board of Directors or by giving written notice thereof to the Secretary of WSTC. Such resignation shall take effect at the time specified therein, and, unless otherwise specified, acceptance of such resignation by the Board of Directors or the Council shall not be necessary to make it effective. The Secretary of WSTC shall immediately notify the Council of any resignation.

Section 6. Removal. Any director may be removed, with or without cause, by the affirmative vote of an absolute majority of the Council at a meeting of the Council, whenever, in their judgment, the best interests of WSTC would be served thereby. The Secretary-Treasurer shall immediately notify the Secretary of WSTC of the removal of a director by the Council.

Section 7. Vacancies. Any vacancy occurring on the Board of Directors shall be filled by appointment by the Council for the balance of the unexpired term of the predecessor in office.

Section 8. Regular Meetings. Regular meetings of the Board of Directors shall be held quarterly. The first regular meeting in each fiscal year shall also be the annual meeting of the Board of Directors. At the annual meeting of the Board of Directors, the Board of Directors shall review the preceding year’s operations, make plans for the ensuing year’s operations, elect officers and transact such other business as may come before the meeting. The regular meetings shall be held at the time and place specified by the Chairman of the Board in the notice of the meeting.

Section 9. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board or any two members of the Board of Directors. Meetings shall be held at the time and place specified by the person or persons calling such meeting.

Section 10. Notice. Notice of meetings of the Board of Directors shall be given at least five days previously thereto by a writing delivered personally or mailed to each director at his business address. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Unless otherwise specified in this Plan of Operation, neither the business to be transacted nor the purpose of any meeting of the Board of Directors need be specified in the notice or the waiver of notice of such meeting.

Section 11. Quorum. A majority of the directors in office shall constitute a quorum for the transaction of business at any meeting of the Board of the Directors.

Section 12. Manner of Acting. The act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of a greater number is required elsewhere in this Plan of Operation. Each member of the Board of Directors, including the director presiding at the meeting of the Board of Directors, shall be entitled to one vote.

Section 13. Action by Unanimous Written Consent. Any action which may be taken at a meeting of the Board of Directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all the directors of the WSTC.

Section 14. Compensation and Expenses. The Council shall, from time to time, determine a reasonable director’s fee and per diem to be paid to members of the Board of Directors for time devoted to meetings and affairs of WSTC. Expenses incurred in connection with performance of their official duties may be reimbursed to directors. Director’s per diem and expenses shall be an expense of WSTC.

IV. COMMITTEES

Section 1. Appointment. The Board of Directors shall appoint such committees as it may deem appropriate. The Board of Directors shall have the power at any time to change the size of, membership of, and to discharge, any committee.

Section 2. Meetings. Members of a committee shall meet at the call of the committee chairman, at such place as the committee chairman shall designate, after reasonable notice has been given to each committee member. A majority of the members of a committee shall constitute a quorum, and any transaction of a committee shall require a majority vote of the quorum present at any meeting. Each member of a committee, including the member presiding at the meeting of the committee, shall be entitled to one vote. Each committee shall keep minutes of its proceeding and make a written report to the Board of Directors of its action within five days subsequent thereto.

V. OFFICERS

Section 1. Principal Officers. The principal officers of WSTC shall consist of a Chairman of the Board, a Vice-Chairman, and a Secretary and Treasurer, each of whom shall be elected by the Board of Directors. Such other officers and assistant officers as may be deemed necessary may be elected by the Board of Directors. The Chairman of the Board and the Vice-Chairman shall be members of the Board of Directors. Any two or more offices may be held by the same person, except the offices of Chairman of the Board and Vice-Chairman.

Section 2. Election and Term of Office. The officers of WSTC, shall be elected annually by the Board of Directors at the annual meeting of the Board of Directors. Each officer shall hold office until a successor shall have been duly elected and accept office, or until death, or until such officer shall resign or shall have been removed in the manner hereinafter provided.

Section 3. Removal. Any officer elected by the Board of Directors may be removed, with or without cause, by the Board of Directors whenever, in its judgment, the best interest of WSTC would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the persons so removed.

Section 4. Vacancies. A vacancy of any office because of death, resignation, removal, disqualification, or otherwise, may be filled by the Board of Directors for the unexpired portion of the term.

Section 5. Chairman of the Board. If present, the Chairman of the Board shall preside at the meetings of the Board of Directors. The Chairman shall sign, with the Secretary-Treasurer of WSTC or any other proper officer authorized by the Board of Directors, any contract or other instrument which the Board of Directors has authorized to be executed, except in cases where the signing and execution thereof shall be especially delegated by the Board of Directors or by this Plan of Operation to some other officer or agent of WSTC, or shall be required by law to be otherwise signed and executed. The Chairman of the Board shall perform such other duties as from time to time may be prescribed by the Board of Directors.

Section 6. Vice-Chairman. In the absence of the Chairman of the Board, or in the event of death, inability or refusal to act, the Vice-Chairman shall perform the duties of the Chairman of the Board and when so acting shall have all the powers and be subject to all the restrictions upon the Chairman of the Board. The Vice-Chairman shall perform such other duties as from time to time may be prescribed by the Chairman of the Board or the Board of Directors.

Section 7. Secretary-Treasurer of WSTC. The Secretary-Treasurer of WSTC shall keep or cause to be kept the minutes of the meetings of the Board of Directors in one or more books provided for that purpose, see that all notices are duly given in accordance with the provisions of this Plan of Operation, be custodian of WSTC’s records, and in general perform all duties incident to the office of Secretary of WSTC. Except to the extent the same shall be delegated to Management, the Secretary-Treasurer shall have charge and custody of, and be responsible for, all funds and securities of WSTC, receive and give receipts for moneys due and payable to WSTC from any source whatsoever, and deposit all such monies in the name of WSTC in such depositories as shall be selected. The Secretary-Treasurer shall perform all the duties incident to the office of Treasurer and such other duties as from time to time may be prescribed by the Chairman of the Board or the Board of Directors.

Section 8. Additional Officers. Officers and assistant officers, in addition to those herein above described, who are elected by the Board of Directors shall perform such duties as shall be assigned to them by the Chairman of the Board or the Board of Directors.

Section 9. Compensation and Expenses. The Board of Directors shall, from time to time, determine a reasonable per diem to be paid to officers who are not also salaried employees of WSTC, for time devoted to performance of their official duties. Expenses incurred in connection with performance of their official duties may be reimbursed to officers upon approval of the Board of Directors. Officer’s per diem and expenses shall be an expense of WSTC.

VI. INDEMNIFICATION OF DIRECTORS AND OFFICERS

Section 1. General. WSTC shall 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 Tribe and/or WSTC), by reason of the fact that such person is or was a director or officer of WSTC or is or was serving at the request of WSTC as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgment, fines and amount paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of WSTC and Tribe and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s 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, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of WSTC and Tribe, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.

Section 2. Derivative Actions. WSTC shall 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 WSTC to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of WSTC or is or was serving at the request of WSTC as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of WSTC and Tribe and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of such person’s duty to WSTC unless and only to the extent that the court in which such action or suit was brought shall determine 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 indemnity for such expenses which such court shall deem proper.

Section 3. Indemnification in Certain Cases. To the extent that a director or officer of WSTC has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Sections 1 and 2 of this Article VI, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.

Section 4. Procedure. Any indemnification under Sections 1 and 2 of this Article VI (unless ordered by a court) shall be made by WSTC only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because such person has met the applicable standard of conduct set forth in such Sections 1 and 2. Such determination shall be made (a) 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 (b) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by Council.

Section 5. Advances for Expenses. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by WSTC 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 the director or officer to repay such amount unless it shall be ultimately determined that such person is entitled to be indemnified by WSTC as authorized in this Article VI.

Section 6. Rights Not Exclusive. The indemnification provided by this Article VI shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any law, bylaw, agreement, vote of disinterested directors or otherwise, both as to action in such person’s 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 or officer and shall inure to the benefit of the heirs, executors and administrators of such a person.

Section 7. Insurance. WSTC shall have the power to purchase and maintain insurance on behalf of any person who is or was a director or officer of WSTC or is or was serving at the request of WSTC as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his status as such, whether or not WSTC would have the power to indemnify him against such liability under the provisions of this Article VI.

VII. MANAGEMENT

The Board of Directors shall select an individual to serve as the General Manager of WSTC. The General Manager shall be charged with the overall responsibility for operating the industrial complex and other operations of WSTC, acquiring raw materials, arranging financing, overseeing construction, purchasing, equipping and operating the industrial complex, overseeing contract operations and performing such other duties and responsibilities and powers of WSTC as shall be consistent with the purposes, objectives and priorities of WSTC and the provisions of this Plan of Operation and as may be from time to time assigned by the Board of Directors. The General Manager shall serve at the pleasure of the Board of Directors, subject to any written employment contract between WSTC and the General Manager which may be approved by the Board of Directors and filed with the Secretary-Treasurer of the Tribal Council.

VIII. CONTRACTS, FINANCES AND REPORTS

Section 1. Contracts Generally. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute or deliver any instrument in the name of and on behalf of WSTC, and such authority may be general or confined to specific instances.

Section 2. Bank Accounts. Separate and special banking accounts, such as a payroll account, may be established as WSTC shall from time to time consider necessary or convenient. Disbursements shall be supported by receipted vouchers and shall be done by check drawn upon WSTC’s accounts, signed by persons designated and approved by the Board of Directors.

Section 3. Budget and Financial Planning. WSTC shall prepare an annual detail budget covering its anticipated operation for the ensuing year. In addition, thereto, WSTC shall prepare a five-year financial plan shown on an annual basis. Both the budget and financial plan shall include such information as is necessary to present the plans. The Board of Directors will review and approve both the budget and five-year plan. Management shall report to the Board of Directors at its next ensuing meeting of any significant changes or factors effecting such plans.

Section 4. Accounting and Operating Reports. Financial and accounting records will be maintained and monthly and annual financial and operating reports will be prepared as are customary in a well-managed business. The monthly and annual reports of WSTC shall be promptly filed with the Secretary-Treasurer of the Council.

Section 5. Audits. An audit of the operations and conditions of WSTC shall be made as of the close of each fiscal year by a firm of certified public accountants selected by the Secretary- Treasurer and confirmed by the Tribal Council.

Section 6. Insurance. All insurance of WSTC shall contain waivers of subrogation against Tribe and against invitee’s and agents and employees of both Tribes and WSTC.

IX. CAPITAL

Section 1. Sources of Funds. Capital for operations will be provided through appropriation by the Tribe and by financing commitments from the Federal Government, State Government and/or one or more responsible financial institutions or individuals or entities arranged and secured by WSTC and approved by the Council. Such financial commitments shall not be effective until approved by the Council. In the event such financial commitments are approved by the Council, WSTC may, subject to the approval of the Council, enter into such security agreements for repayment of such financial commitments as shall be reasonable and proper under the circumstances. Furthermore, in no event shall such security agreements obligate the Tribe to repay said financial commitments. Additional operating capital of WSTC shall be derived from the accumulated earnings of its operations.

Section 2. Use of Retained Earnings. Funds not required as operating capital or for the payment of indebtedness, maintenance, repair, replacement or expansion of plant, machinery, or equipment shall not be retained or used in any way by WSTC. Such funds shall be made available to Tribe for such uses and purposes as Tribe shall consider appropriate.

Section 3. Distribution. Proceeds available from WSTC’s operations shall be transferred only to Tribe. Per capita payments shall be made only by the Council, and may not be made by Management or WSTC.

X. FISCAL YEAR

The fiscal year of WSTC shall be from January 1 to December 31, inclusive.

XI. AMENDMENTS

Amendments to this Plan of Operation may be approved by the vote of a majority of the directors in office at any meeting of the Board of Directors. However, no such amendment shall be effective until approved by the Council.

1 As adopted by Tribal Council Resolution No. 9391, adopted July 14, 1997.