§208.  Defense of ultra vires

A.  Invalidity of an act of a corporation, or of a conveyance or transfer of movable or immovable property to or by a corporation, by reason of the fact that the corporation was without capacity or power to perform such act or to make or receive such conveyance or transfer, may be asserted only:

(1)  In an action by a member of the corporation to set aside such act, conveyance or transfer, brought within one year after the act was done or the conveyance or transfer was consummated, which time limit shall not be subject to suspension on any ground or interruption on any ground other than timely suit;

(2)  In an action by a member against the corporation to enjoin the performance of any act or the transfer of movable or immovable property by or to the corporation.  If the unauthorized act, conveyance or transfer sought to be enjoined is being, or is to be, performed or made 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 action, if the corporation is without capacity or power to perform the act or make or receive the transfer sought to be enjoined, and if the court considers such relief to be equitable--enjoin the performance of such contract, and in so doing may allow to the corporation, or to the other parties to the contract, compensation for any loss or damage sustained by any of them which may result from the action of the court in 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 loss or damage sustained;

(3)  In an action in damages by the corporation or by its receiver, trustee or other legal representative, or by its members, in a derivative or representative suit, against the incumbent or former officers or directors of the corporation;

(4)  In an action by the state to dissolve the corporation, or to enjoin the corporation from the transaction of unauthorized business.  

B.  In any action brought pursuant to subsection A(1) or (2) of this section, the plaintiff shall sustain the burden of proof that he has not at any time prior thereto assented to the act, conveyance or transfer in question, and that in bringing the action he is not acting in collusion with officials of the corporation.  

Acts 1968, No. 105, §1.