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AMENDED BYLAWS OF
TAINAN HIGH SCHOOLS ALUMNI ASSOCIATION
OF NORTHERN AMERICA, INC.
Article I
MEMBERSHIP AND PURPOSE
1.01.
The purpose of the Tainan High Schools Alumni Association of Nothern
America, Inc. (hereinafter referred to as the “Corporation”) is to share
common interests as alumni of high schools in Tainan, Taiwan and to maintain
the heritage of such high schools. The purpose of the Corporation shall
also be to promote communication and understanding among all such alumni who
live in Northern America. The Corporation shall develop and establish local
and social programs that may benefit not only the members of the Corporation
but also their family members.
1.02.
All alumni of high schools in Tainan, Taiwan, and their spouses are
qualified to become members, upon approval of such membership by the Board
of Directors. Members shall be required to pay an annual membership fee as
set by the Board of Directors and shall respect and obey the bylaws of the
Corporation. In addition, all members are obliged to volunteer their time
to the Corporation and to contribute and share their knowledge and efforts
and otherwise provide assistance to the Corporation. All members shall have
the right to participate in any of the Corporation’s activities and
elections and shall be eligible to elect or be elected to the Board of
Directors of the Corporation.
Article II
OFFICES
2.01.
The current registered office and business address of the Corporation is
located at c/o Philip Chang, 98 Helen Court, Franklin Lakes,
New Jersey 07417, and the Corporation’s registered agent at such address is
Philip Chang. The address of the registered office may be changed by
the Board of Directors. The Corporation may have other offices, within or
without the State of New Jersey, as the Board of Directors may designate or
as the business of Corporation may require.
Article III
MEMBERS
3.01. Annual Meeting.
The annual membership meeting will be
held within the first four months of each calendar year, at any time and day
within that time period, as designated by the Board of Directors, for the
purpose of electing Directors and for the transaction of any other business
that may come before the meeting. If the election of Directors is not held
on the day designated for any annual meeting of the members or at any
adjournment of the meeting, the Board of Directors shall call for the
election to be held at a special meeting of the members as soon thereafter
as possible.
3.02. Special Meetings.
Special meetings of the members, for
any purpose, may be called by the President or by the Board of Directors. A
special meeting must be called by the President if requested by not less
than twenty percent (20%) of all members entitled to vote at the meeting.
The provisions of this Section are subordinate to any statutory provisions
that may require a different procedure.
3.03. Meeting Place.
The Board of Directors may designate
any place within or without the State of
New
Jersey as the meeting place for any annual meeting or for any special
meeting. A waiver of notice signed by all members entitled to vote at a
meeting may designate any place within or without the State of
New Jersey
as the place for the meeting described in the waiver. If no designation is
made, or if a special meeting is called in a different manner than that
described in this Section, the place of meeting shall be the principal
office of the Corporation in the State of New Jersey.
3.04. Notice of Meeting.
Written notice stating the location,
date, and time of the meeting and, in the case of a special meeting, the
purpose for which the meeting is called, shall be delivered not less than
fourteen (14) days before the date of such meeting, either personally or by
mail, to each member entitled to vote at the meeting. If mailed, the notice
shall be deemed to be delivered when deposited in the
U.S.
mail, addressed to the member at the address as it appears on the membership
books of the Corporation, with postage prepaid. The provisions of this
Section are subordinate to any statutory provisions that may require a
different procedure.
3.05. Closing of Membership Books or Fixing of Record Date.
To determine which members are entitled to receive notice of any meeting,
vote at any meeting, or to identify members for any other proper purpose,
the Board of Directors may close the membership books for a stated period
not to exceed thirty days. If the membership books are closed to determine
which members are entitled to notice of or to vote at a membership meeting,
the books must be closed for at least ten days immediately before the
meeting. In lieu of closing the membership books, the Board of Directors
may fix in advance a date as the record date for any identification of
members, the date to be not more than thirty days and, in case of a meeting
of members, not less than ten days before the date on which the particular
action is to be taken. If the membership books are not closed and no record
date is fixed, the date on which notice of the meeting is mailed or the date
on which the resolution of the Board of Directors declaring the dividend is
adopted, shall be the record date for determination of members. When a
determination of members entitled to vote at any meeting of members has been
made as provided in this Section, the determination shall apply to any
adjournment of the meeting.
3.06. Voting Record.
The officer or agent in charge of the
membership books of the Corporation will make a complete record of the
members entitled to vote at each meeting of members, or any adjournment of
the meeting, arranged in alphabetical order, with each member’s address.
These records will be produced and kept open at the time and place of the
meeting and will be subject to the inspection of any member during the whole
time of the meeting.
3.07. Quorum.
A
majority of the members of the Corporation entitled to vote, represented in
person or by proxy, will constitute a quorum at a membership meeting. If
there are less than a majority of the members represented at a meeting, a
majority of the members represented may adjourn the meeting without further
notice. At an adjourned meeting where a quorum is present, any business may
be transacted that might have been transacted at the original meeting.
3.08. Proxies.
At
all membership meetings, a member may vote in person or by proxy executed in
writing by the member or by his or her authorized representative. A proxy
must be filed with the Secretary of the Corporation before or at the time of
the meeting. No proxy will be valid after eleven months from the date of
its execution, unless the proxy provides otherwise.
3.09. Voting.
Except for cumulative voting for Directors if permitted by these Bylaws,
each member entitled to vote shall be entitled to one vote upon each matter
submitted to members.
3.10. Voting by Certain Holders.
Memberships in the name of another
organization may be voted by the officer, agent, or proxy prescribed by that
corporation’s bylaws or, in the absence of a bylaw provision, as the Board
of Directors of that organization may determine.
3.11. Informal Action by Members.
Any action required or permitted to be
taken at a meeting of the members may be taken without a meeting if consent
in writing, setting forth the action to be taken, is signed by a majority of
all of the members entitled to vote on the action.
3.12. Cumulative Voting.
At each election for Directors, every
member entitled to vote at the election has the right to vote in person or
by proxy for as many people as there are Directors to be elected and for
whose election the member has a right to vote, or to accumulate his or her
votes by giving one candidate as many votes as the number of Directors to be
elected, or by distributing that number of votes among any number of
candidates.
Article IV
BOARD OF DIRECTORS
4.01. General Powers.
The business and affairs of the
Corporation will be managed by the Board of Directors.
4.02. Number, Tenure, and Qualifications.
The number of Directors of the
Corporation shall be eleven (11). Each Director shall hold office for
two-year terms until the next annual meeting of members and the Director’s
successor has been elected and qualified. Directors need not be residents
of the State of
New
Jersey but need be members of the
Corporation. Directors shall be removed automatically if he or she shall
fail to attend more than fifty percent (50%) of all meetings of the Board of
Directors in any twelve (12)-month period.
4.03. Regular Meetings.
A regular meeting of the Board of
Directors will be held without any notice other than this Bylaw immediately
after, and at the same place as, the annual meeting of members. The Board
of Directors may fix, by resolution, the time and place, either within or
without the State of
New
Jersey, of additional regular meetings without any notice other than the
resolution.
4.04. Special Meetings.
Special meetings of the Board of
Directors may be called by or at the request of the President or any two
Directors. The person or persons authorized to call special meetings of the
Board of Directors may fix the time and place, either within or without the
State of New Jersey, of any special meeting of the Board of Directors called
by them.
4.05. Notice.
Notice of any special meeting shall be given at least fourteen (14) days in
advance in writing, delivered personally or mailed to each Director at his
or her business or residential address, or by telegram or facsimile. If
mailed, the notice shall be deemed to be delivered when deposited in the
U.S. mail, addressed, with postage prepaid. If notice is given by telegram,
the notice shall be deemed to be delivered when the telegram is delivered to
the telegraph company. Any Director may waive notice of any meeting. The
attendance of a Director at a meeting shall constitute a waiver of notice of
that meeting, unless the Director attends for the express purpose of
objecting to the transaction of any business because the meeting is not
lawfully called or convened.
4.06. Quorum.
A
majority of the number of Directors fixed by Section 3.07 shall constitute a
quorum for the transaction of business at any meeting of the Board of
Directors. If less than a majority is present at a meeting, a majority of
the Directors present may adjourn the meeting without further notice.
4.07. Manner of Acting.
The act of the majority of the
Directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors.
4.08. Action Without a Meeting.
Any action required or permitted to be
taken by the Board of Directors at a meeting may be taken without a meeting
if consent in writing, stating the action to be taken, is signed by a
majority of the Directors.
4.09. Vacancies.
Any vacancy in the Board of Directors
may be filled by the affirmative vote of a majority of the members at the
next annual membership meeting. A Director elected to fill a vacancy shall
be elected for the unexpired term of the Director’s predecessor in office.
Any directorship to be filled by reason of an increase in the number of
Directors may be filled by election by the Board of Directors for a term of
office continuing only until the next election of Directors by the members.
4.10. Compensation.
By resolution, the Board of Directors
may direct that each Director be reimbursed for out-of-pocket expenses
actually incurred on behalf of the Corporation. However, Directors are all
volunteers and shall otherwise serve without salary, reward or compensation
from the Corporation.
4.11. Presumption of Assent.
A Director of the Corporation who is
present at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the action
taken, unless his or her dissent appears in the minutes of the meeting, or
unless the Director files his or her written dissent to the action with the
person acting as the secretary of the meeting before the adjournment, or
forwards the Director’s dissent by hand delivery, first class mail,
telegram, or facsimile to the Secretary of the Corporation within three (3)
days after the adjournment of the meeting. This right to dissent does not
apply to a Director who voted in favor of the action.
Article V
OFFICERS
5.01. Number.
The
officers of the Corporation shall be a President, a Vice‑President, a
Secretary, and a Treasurer. The President shall be elected by the Board of
Directors from among the Directors. The Vice‑President, Secretary, and
Treasurer shall be appointed by the President from among the Directors, but
shall be further subject to the consent of a majority of the Board of
Directors. Other officers and assistant officers may be elected or
appointed by the Board of Directors. No two or more offices may be held by
the same person.
5.02. Election and Term of Office.
The officers of the Corporation shall
be elected annually by the Board of Directors at the first meeting of the
Board of Directors following the annual meeting of the members. If the
election of officers is not held at that meeting, the election shall be held
as soon as convenient. Each officer shall hold office for a one-year term
until the officer’s successor has been elected and has qualified or until
the officer dies, resigns, or is removed in accordance with the Bylaws of
the Corporation, whichever comes first. The President may be re-elected
once to a second one-year term, but shall be limited to no more than two
consecutive terms.
5.03. Removal.
Any
officer or agent may be removed by the Board of Directors whenever in its
judgment, the removal will serve the best interests of the Corporation.
5.04. Vacancies.
A vacancy in any office for any reason
may be filled by the Board of Directors for the unexpired portion of the
term.
5.05. President.
The President is the principal
executive officer of Corporation and, subject to the control of the Board of
Directors, will supervise and control all of the business and affairs of the
Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. The President will preside at all
meetings of the members and of the Board of Directors. The President may
sign, with the Secretary or any other officer of the Corporation authorized
by the Board of Directors, membership certificates of the Corporation, as
well as any other instruments that the Board of Directors has authorized to
be executed. The President may not sign these documents where their signing
and execution has been expressly delegated by the Board of Directors or by
these Bylaws to some other officer or agent of the Corporation or where the
law of the State of New Jersey requires the documents to be signed or
executed by others. In general, the President will perform all duties
incident to the office of president and all other duties as may be
prescribed by the Board of Directors.
5.06. The Vice‑President.
The Vice-President shall be selected by the President and elected by
the Board of Directors. In the President’s absence, death, or inability or
refusal to act, the Vice‑President shall perform the duties of the
President. When the Vice‑President is acting as President, the
Vice-President shall have all the powers of and be subject to all the
restrictions upon the President. Any vice‑president may sign, with the
Secretary or an assistant secretary, membership certificates of the
Corporation and perform any other duties that may be assigned by the
President or by the Board of Directors.
5.07. The Secretary.
The Secretary shall: (a) attend all
meetings of the members and of the Board of Directors and record all votes
and the minutes of such proceedings in one or more books provided for that
purpose; (b) see that all notices are given in accordance with the
provisions of these Bylaws or as required by law; (c) be custodian of the
corporate records and of the Corporation’s seal, and see that the
Corporation’s seal is affixed to all documents that must be executed under
its seal; (d) keep a register of the address of each member that has been
given to the Secretary by each member; (e) sign with the President, or a
vice‑president, membership certificates of the Corporation; (f) have general
charge of the membership books of the Corporation; (g) upon the request of
the Treasurer, be responsible as co-signer of the Corporation’s bank
accounts; and (h) perform all duties incident to the office of secretary and
any other duties that may be assigned by the President or by the Board of
Directors.
5.08. The Treasurer.
The Treasurer shall: (a) have charge
and custody of all funds and securities of the Corporation and keep full and
accurate accounts of receipts and disbursements in the Corporation’s books;
(b) receive and give receipts for monies due and payable to the Corporation
from any source, and deposit all the Corporation’s monies and other
valuables in the Corporation’s name in the banks, trust companies, or other
depositories that are selected in accordance with the provisions of these
Bylaws; (c) disburse the funds of the Corporation as may be ordered or
authorized by the Board of Directors and preserve proper vouchers for all
such disbursements; (d) render accounts of all transactions and financial
conditions to the President and the Board of Directors at all meetings of
the Board of Directors or whenever required by the Board of Directors; (e)
render a full financial report to the members at the annual membership
meeting; and (f) in general, perform all of the duties incident to the
office of treasurer and any other duties that may be assigned by the
President or by the Board of Directors. If required by the Board of
Directors, the Treasurer will give a bond for the faithful discharge of his
or her duties in a specified sum and with the surety or sureties designated
by the Board of Directors.
5.09. Assistant Secretaries and Assistant Treasurers.
The
assistant secretaries, when authorized by the Board of Directors, may sign,
with the President or a vice‑president, membership certificates of the
Corporation whose issuance has been authorized by a resolution of the Board
of Directors. The assistant treasurers shall, if required by the Board of
Directors, give bonds for the faithful discharge of their duties in
specified sums and with sureties designated by the Board of Directors. In
general, the assistant secretaries and assistant treasurers will perform
those duties that are assigned to them by the Secretary or the Treasurer, or
by the President or the Board of Directors.
5.10. Compensation.
By resolution, the Board of Directors
may direct that each officer be reimbursed for expenses actually incurred on
behalf of the Corporation. However, officers are all volunteers and shall
serve without reward or compensation from the Corporation.
Article VI
CONTRACTS, LOANS, CHECKS, AND DEPOSITS
6.01. Contracts.
The Board of Directors may authorize
one or more officers or agents to enter into any contract or execute and
deliver any instrument on behalf of Corporation. This authority may be
general or confined to specific instances.
6.02. Loans.
No
loans shall be contracted on behalf of the Corporation, and no evidences of
indebtedness shall be issued in its name unless authorized by a resolution
of the Board of Directors. This authority may be general or confined to
specific instances.
6.03. Checks, Drafts, Etc.
All checks, drafts, or other orders for
the payment of money, and notes or other evidences of indebtedness issued in
the Corporation’s name shall be signed by the officers and/or agents of the
Corporation in the manner authorized by resolution of the Board of
Directors.
6.04. Deposits.
All
funds of the Corporation not otherwise employed shall be deposited to the
credit of the Corporation in banks, trust companies, or other depositories
that the Board of Directors selects.
Article VII
CERTIFICATES FOR MEMBERS AND THEIR TRANSFER
7.01. Membership Certificates.
Membership certificates of the Corporation shall be in the form specified
by the Board of Directors. The certificates shall be signed by the
President or a vice‑president and by the Secretary or an assistant secretary
and sealed with the corporate seal or a facsimile. The officers’ signatures
upon a certificate may be facsimiles if the certificate is manually signed
by the Corporation’s transfer agent or registrar. Each certificate will be
consecutively numbered or otherwise identified. The name and address of
each person to whom certificates are issued, with the date of issue, shall
be entered on the membership books of the Corporation. All certificates
surrendered to the Corporation for transfer shall be canceled, and no new
certificate will be issued until the former certificate has been surrendered
and canceled. In case of a lost, destroyed, or mutilated certificate, a
replacement may be issued upon such terms and indemnity to the Corporation
as the Board of Directors may prescribe.
7.02. Transfer of Membership.
Transfer of memberships in the
Corporation will be entered in the Corporation’s membership books only when
authorized by the holder of record or the holder’s legal representative, who
shall provide proper evidence of his or her authority filed with the
Corporation’s Secretary. No transfer of membership will be entered in the
membership book unless the certificate representing the membership has been
surrendered for cancellation. The person or entity in whose name
memberships are entered in the membership ledger shall be deemed to be the
holder of the membership for all purposes.
Article VIII
FISCAL YEAR; DISBURSEMENTS; DIVIDENDS
8.01.
The fiscal year of Corporation shall begin on the first day of December and
shall end on the thirtieth day of November of each calendar year.
8.02.
The financial resources of the Corporation shall primarily consist of
membership fees, advertising, earned income from current assets, fundraising
activities and contributions.
8.03.
The Corporation shall not make any contribution to any organization except
for non-profit organizations.
8.04.
The only meal to be expensed on account of the Corporation is the annual
meeting of the Board of Directors at which retiring Directors transition to
newly-elected Directors. Moderation in expenses is urged upon all members,
Directors and officers.
8.05.
Any and all disbursements may be made only with the consent of the Board of
Directors. The Corporation shall not be obligated to reimburse for any
expense with respect to transportation or personal consumption of the
members, Directors, or officers, for participation in Corporation activities
shall be considered voluntary.
8.06.
The Board of Directors shall not be authorized to declare and the
Corporation shall not pay dividends on its memberships in any manner or upon
any terms and conditions, even if provided by law.
Article IX
INVESTMENT FUND MANAGEMENT
9.01.
The Corporation may establish an investment fund (the “Investment Fund” or
the “Fund”). When the treasury of the Corporation shall exceed $2,000.00 by
at least $1,000.00, the Treasurer shall transfer the excess amount to the
Investment Fund in increments of $1,000.00. The Fund shall also be
permitted to have investment income from its own investments and shall be
permitted to accept donations. The Corporation shall be the sole owner of
the Fund and any funds in the Fund shall be disbursed only for causes and
projects that are in complete agreement with the purposes and philosophies
of the Corporation.
9.02.
The Board of Directors shall designate an Investment Committee of not less
than five (5) persons (the “Investment Committee” or the “Committee”), four
(4) of whom shall be members in good standing designated from the general
membership at large and shall not officers or Directors. The fifth person
shall be the current President of the Corporation, ex officio. The
Committee shall have full authority and responsibility for managing the
Fund. The Board of Directors shall designate persons for the Committee who
are in their own right knowledgeable and active in financial and investment
endeavors. The members of the Committee may communicate with each other
using any electronic or natural communication method desired. Each member
of the Committee shall participate actively in the decision-making functions
of the Committee. The Board of Directors shall invite the members of the
Investment Committee to any meetings of the Board of Directors that concern
the Investment Fund, and the members of the Investment Committee shall
attend all such meetings when invited. Each of the four designated members
of the Committee shall serve a term of four (4) years and may be
re-designated by the Board of Directors to consecutive terms without
limitation. The Board of Directors may by majority vote remove any
Committee member designated by the Board of Directors. Committee members
shall serve without salary, reward or compensation, but may be reimbursed
for out-of-pocket expenses incurred in the performance of investment
activities.
The members of the Committee
shall elect a Speaker for the Committee from among the four members
designated by the Board of Directors. The Speaker shall serve a term of two
(2) years and may be re-elected to consecutive terms without limitation.
The Speaker shall be responsible for executing the Committee’s joint
investment decisions.
9.03.
The Committee shall invest the funds in the Fund in a fiduciary prudent and
conservative manner. The Committee shall invest the Fund in publicly-traded
securities, government bonds, mutual funds, registered money market funds,
and certificates of deposit of reputable financial institutions. The
Committee shall maintain complete and accurate records of the Fund’s
investment activities, and such records shall be made available to the Board
of Directors for inspection upon request.
9.04.
The fiscal year of the Fund shall begin on the 1st day of April and end on
the 31st day of March in the following calendar year. Each
year, as soon as the March 31st statements for all investment
accounts held by the Fund are received, each member of the Investment
Committee shall review the statements and the Committee shall collectively
determine if for the current fiscal year any funds in the Fund are available
for any qualified causes or projects. The Committee shall make such
determination in accordance with the following rules:
(a) The rules are for maintaining the integrity of the Fund, to
protect the “base amount” of the investment capital and to ensure its
continuous growth.
(b) Initially, the “base amount” of the Fund shall be One Hundred
Thousand Dollars (US$100,000.00). After the balance of the Fund reaches
$100,000.00, the “base amount” of the Fund shall increase by ten percent
(10%) annually.
(c) Fifty percent (50%) of any funds in the Fund in excess of the
“base amount” of the Fund shall be available for any qualified causes or
projects. If the funds in the Fund do not exceed the “base amount,” then
there shall be no available funds that year.
(d) Any funds in the Fund determined to be available shall be
transferred to the treasury of the Corporation, and the Board of Directors,
by a majority vote, shall be solely responsible for deciding which qualified
causes and projects shall receive the Corporation’s assistance.
Article X
WAIVER OF NOTICE
10.01.
Whenever any notice must be given to any member or Director of the
Corporation under the provisions of these Bylaws or under the provisions of
the Certificate of Incorporation or under the laws of the State of New
Jersey, a waiver of notice signed by the person or persons entitled to the
notice, whether before or after the time set out in the notice, is
equivalent to the giving of notice.
Article XI
TRANSACTIONS WITH INTERESTED DIRECTORS
11.01. Validity of Contracts and Transactions-Director Has Pecuniary
Interest.
No
contract or other transaction between the Corporation and any corporation,
association, or firm in which any Director of the Corporation is a director
or officer or in which the Director has a pecuniary or other interest is,
per se, either void or voidable. Any such contract or transaction is
binding on the Corporation if any of the following conditions are satisfied:
a.
The contract or transaction is fair or commercially reasonable to the
Corporation at the time it is executed, or at the time it is authorized,
approved, or ratified; and either
b.
The material facts as to (i) the Director’s interest or position and (ii)
the contract or transaction have been sufficiently disclosed to or known by
the Board of Directors of the Corporation or a majority thereof, prior to
the execution of the contract or transaction, and the Board authorizes,
approves, or ratifies the contract or transaction by a two-thirds (2/3)
majority vote of the disinterested Directors, even though the disinterested
Directors may constitute less than a quorum; or
c.
The material facts as to (i) the Director’s interest or position and (ii)
the contract or transaction have been sufficiently disclosed to or known by
the members of the Corporation or a majority thereof, prior to the execution
of the contract or transaction, and the members authorize, approve, or
ratify such contract or transaction by a two-thirds (2/3) majority vote
sufficient for that purpose.
11.02. Validity of Contracts and Transactions-Director Has Controlling
Interest.
No
contract or other transaction between the Corporation and any corporation,
association, or firm in which any Director of the Corporation has a
controlling interest is, per se, either void or voidable, provided that the
corporation, association, or firm in which a Director of the Corporation has
a controlling interest shall not be compensated in accordance with the
contract.
11.03. Quorum.
Any
interested Directors may be counted in determining the presence of a quorum
at any meeting of the Board of Directors of the Corporation that authorizes,
approves, or ratifies any contract or transaction.
11.04. Director’s Conflict of Interest.
With respect to this Article XI, where any authorization, approval, or
ratification of by either the Board of Directors or by the members of the
Corporation, by a majority vote sufficient for that purpose, is required for
any contract or transaction between the Corporation and any corporation,
association, or firm, no Director of the Corporation who is a director or
officer in the corporation association or firm or in which the Director has
a pecuniary or other interest may take participate in such vote but must
instead recuse himself or herself from voting. Notwithstanding the
foregoing, such Director of the Corporation may participate in any
discussions of the contract or transaction prior to such vote.
Article XII
INDEMNIFICATION OF OFFICERS AND DIRECTORS
12.01. Parties to Be Indemnified.
The Corporation shall indemnify each of
its Directors and officers, the Board of Directors, and the members of any
committee of the Board appointed pursuant to these Bylaws (collectively
referred to as its “Agents”) from any liability arising due to the actions
or inactions of such persons or entities on behalf of the Corporation, in
accordance with the terms of this Article.
12.02. Rights and Limitations on Indemnification.
An
Agent shall be entitled to indemnification provided that the Agent acted in
good faith and in a manner reasonably believed to be in the best interest of
the Corporation and, in a criminal action or proceeding, provided that the
Agent had no reasonable cause to believe the Agent’s conduct was unlawful.
No right of indemnification shall exist for any act or inaction that
constitutes gross negligence or willful misconduct, or that constitutes a
breach of fiduciary duty on the part of the Agent. Specifically, no right
of indemnification shall exist as to (a) any matter in which the Agent has
been finally adjudged guilty of gross negligence, willful misconduct, or
breach of fiduciary duty in any action or proceeding or (b) any settlement
of any action or proceeding, unless the Board of Directors, or independent
counsel selected by the Board of Directors, has determined that there is no
reasonable ground for such Agent to be adjudged guilty of gross negligence,
willful misconduct, or breach of fiduciary duty.
12.03. Cost Items Covered.
The right of indemnification under this
Article shall extend to all costs, expenses, and liabilities actually and
reasonably incurred by an Agent in connection with any claim, action, or
proceeding (whether civil, criminal, administrative, or other) in connection
with which the Agent acted or failed to act in the Agent’s capacity as agent
of the Corporation.
12.04. Determination That Indemnification Is Proper.
If
any Agent has been successful on the merits in the defense of any such
action or proceeding, then the Agent shall be entitled to indemnification.
In all other situations, the Agent shall be entitled to indemnification as
specified in Section 12.02 or upon adoption of a duly adopted resolution of
the Board of Directors or the members approving a claim for
indemnification. Any such resolution must be adopted by the Board of
Directors by a majority vote of a quorum consisting of Directors who were
not parties to the action or proceeding, or by the members.
12.05. Advance Payment of Expenses.
Expenses incurred by an Agent in
defending any action or proceeding may be paid by the Corporation in advance
of the final disposition of such action or proceeding. In each instance,
such advance payment must be authorized by the Board of Directors, and such
authorization may only be granted after receipt of an undertaking by the
Agent to repay the amount advanced, unless it is ultimately determined that
the Agent is entitled to indemnification in accordance with the provisions
of Section 12.02.
12.06. Continuation of Right to Indemnification.
Such
right to indemnification shall continue as to a person who has ceased to be
a member of the Board of Directors or an officer or member of such
committee, and shall endure to the benefit of the heirs, executors, and
administrators of such a person.
12.07. Other Remedies.
The indemnification provided by these
Bylaws shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any statute, agreement, vote
by members of the Corporation or disinterested members of the Board of
Directors, or otherwise.
12.08. Insurance.
The
Corporation may purchase and maintain insurance on behalf of any or all of
its Agents against any liability, or settlement based on an asserted
liability, incurred by them by reason of being, or having been, an Agent of
the Corporation, whether or not the Corporation would have the power to
indemnify them against such liability or settlement, under the provisions of
the Corporation’s charter or these Bylaws.
Article XIII
AMENDMENTS
13.01.
These Bylaws may be altered, amended, or repealed, and new Bylaws may be
adopted by the membership at the annual membership meeting by a two-thirds
(2/3) majority vote of the membership present at such meeting.
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