BY LAWS OF WEST ISLIP SWIM CLUB, INC.
Article I
Name
The Name of this is and shall be WEST ISLIP SWIM CLUB, INC. a not-for-profit organization formed under the laws of the State of New York with the Certificate of Incorporation dated the 15th day of March, 1989 and the Certificate of Amendment dated the 8th day of November, l990 and duly filed with the Secretary of State of the State of New York.
Article II
Purpose and Objectives
2.1 Purpose of Club-Pursuant to Certificate of Incorporation
Pursuant to the Amended Certificate of Incorporation, the purpose of the Corporation is
To promote an interest in swimming; to provide young boys and girls eighteen (18) of age and younger the fundamental skills and techniques in the sport of competitive swimming. The organization’s activities are open to the general public for boys and girls eighteen years of age and younger.
To promote athletic recreation for its members, to hold and promote exhibitions and competitions; to provide swimming contests among its own members and non-members of other similarly constituted organizations for the benefit and well being of its members; to establish and own a swimming pool and the necessary equipment for the same.’
2.2 Not-for-profit Corporation
This corporation is a non-profit public benefit corporation and is not organized for the private gain of any person. It is organized under Section 803 of the Not-For-Profit Corporation Law of the State of New York for educational purposes and for the purposes of fostering amateur swimming competition.
2.3 Tax-Exempt Status
This corporation is organized exclusively for amateur competitive swimming and educational purposes and for the purpose of fostering local, national or international amateur sports competition within the meaning of Section 501 (c) (3) of the Internal Revenue Code or the corresponding provision of any future United States Internal Revenue Law. Notwithstanding any other provision of these by-laws, this corporation shall not, except to an insubstantial degree, engage in any activities or exercise any powers that are not in furtherance of the purposes of this corporation and the corporation shall not carry on any other activities not permitted to be carried on by a corporation exempt from federal income tax under Section 501 (c) (3) of the Internal Revenue Code or the corresponding provision of any future United States Internal Revenue Law.
2.4 Dedication of Assets
The properties and assets of this not-for-profit corporation are irrevocably dedicated to charitable purposes. No part of the net earnings, properties or assets of this corporation, on dissolution or otherwise, shall inure to the benefit of any private person or individual or any member or director of this corporation. On liquidation or dissolution, all properties and assets and obligations shall be distributed and paid over to an organization dedicated to charitable purposes, provided that the organization continues to be dedicated to the exempt purposes as specified in Internal Revenue Code 501 (c) (3).
Article III
Membership
3.1 Qualifications
(a) There shall be one class of membership in this
corporation consisting of:
(i) Minor children who participate in amateur
competitive swimming activities conducted by the
corporation and their respective parents or legal
guardians;
(ii) Emancipated persons who participate in amateur
competitive swimming activities conducted by the
corporation.
(b) Members shall pay such dues and fees as may be from
time to time fixed by the Board of Directors.
(i) No person may hold more than one membership or a fractional membership. The right of members to vote shall be determined as provided in Section 4.8.
(c) Members shall be selected at tryouts by the coach.
(d) Members may join the team at other times with the approval
of the Head Coach and Chairman of the Membership Committee.
(e) Members shall abide by all
(i) USSwimming and Metro Region, LSC Swimming rules and
regulations
(ii) Regulations of any pool facility in use by the
Corporation;
(iii) Team Rules and Regulations.
3.2 Fees and Dues
Each member must pay, as determined by and within the time and on the conditions set by the Board of Directors, an initiation fee, if any, and monthly and/or annual dues to be determined and in amounts to be fixed from time-to-time by the Board of Directors.
3.3 Termination of Membership
(a) Causes of Termination- The membership of a member shall
terminate upon occurrence of any of the following events:
(i) The resignation of the member;
(ii) The failure of the member to pay dues or assessments,
if required, within the times set forth by the Board
of Directors;
(iii) The recommendation by the Head Coach that the member
has failed to observe the rules of conduct of the
Corporation or has engaged in conduct materially and
seriously prejudicial to the interest and purposes of
the corporation. This recommendation shall be
presented to the Board of Directors wherein a
determination shall be made regarding the member’s
status with the club. The Board of Directors will
immediately notify the parents of any minor of such
determination in a timely manner.
(b) Readmittance: Any member that has been terminated may
be readmitted as a member upon all of the following;
(1) Approval by the Head Coach;
(2) Two-Thirds vote by the membership;
(3) Unanimous approval by the Board of Directors
3.4 Refunds
Tuition is non-refundable except for compelling reasons, such as approved medical reasons. All requests are to be made in writing and presented to the Board of Directors for consideration. Any refund of tuition is at the sole discretion of the Board of Directors and approved refunds will be made on a pro-rated basis.
3.5 Transfer of Membership
No member may transfer for value a membership or any right arising from such membership. All rights of membership cease upon a member’s death.
Article IV
Membership Meetings
4.1 Place of Members Meeting
Meetings of the membership shall be held at any place within the
Countyof Suffolk, State of New York or as designated by the Board of Directors.
4.2 Regular Members Meetings
Meetings of the Membership shall be a minimum of one (1) per year and shall be held at such time and place as fixed by the Board of Directors. Membership shall be notified at least five days prior to said meeting.
4.3 Annual Members Meeting
The annual meeting of members shall be held on such day as the
Board of Directors designates and so notifies the members as
provided in Section 4.5
4.4 Special Members Meeting
Authorized persons who may call. A special meeting of the members for any lawful purpose may be called at any time by any of the following: the Board of Directors, the President, or fifteen or more of the members.
Calling meetings by members. If a special meeting is called by members other than the Board of Directors or the President, the request shall be submitted by such members in writing, specifying the general nature of the business proposed to be transacted and shall be delivered personally or sent by certified mail/facsimile/email to the president, vice president or the secretary of the corporation. The officer receiving the request shall cause notice to be promptly given to the members entitled to vote, in accordance with the provision of Section 4.5, that a meeting will be held and the date for such meeting, which dated shall be not less than ten (10), nor more than ninety (90) days following the receipt of the request. If the notice is not given within twenty (20) days after receipt of the request, the persons requesting the meeting may give the notice. Nothing contained in this subsection shall be construed as limiting, fixing or affecting the time when a meeting of members may be held when the meeting is called by action of the Board of Directors.
4.5 Notice of Members Meetings
(a) General notice contents. All notices of meetings of members
shall be sent or otherwise given in accordance with the
Section 4.5 (b) not less than five(5) days, nor more than ninety
(90) days before the date of the meeting. The notice shall
specify the place, date and hour of the meeting and:
(i) In the case of a special meeting, the general nature of
the business to be transacted and no other business may
in that case be transacted, or
(ii) In the case of the annual meeting, those matters which
the board of directors, at the time of giving the
notice, intends to present for action by the members.
(b) Manner of giving notice. Notice of any meeting of members
shall be given either personally, in writing by first class
mail, facsimile or other electronic communication charges
prepaid, addressed to each member either at the address of
that member to the corporation for the purpose of notice.
(c) Notice shall be deemed to have been given at the time when
delivered personally or sent electronically.
(d) Affidavit of mailing notice. An affidavit of the mailing or
other means of giving any notice of any members’ meeting may
be executed by the secretary of the corporation giving the
notice and, if so executed, shall be filed and maintained in
the minutes book of the corporation.
(e) Waiver by attendance. Attendance by a voting member at a
meeting shall constitute a waiver of notice of that meeting,
except when the voting member objects at the beginning of
the meeting to the transaction of any business due to the
inadequacy or illegality of the notice. Also, attendance at
a meeting is not a waiver of any right to object to the
consideration of matters not included in the notice of the
meeting, if that objection is expressly made at the meeting.
4.6 Quorum for Members Meetings
Percentage required. Twenty percent of the voting members shall constitute a quorum for the transaction of business at a meeting of the members.
4.7 Adjourned Meeting
Any members meeting, annual or special, whether or not a quorum is present, may be adjourned from time-to-time by the vote of the majority of the voting members represented at the meeting provided, however, that in the absence of a quorum, no other business may be transacted at that meeting, except as provided in this Article 4. No notice need be given of the adjourned meeting if the time and place are announced at the meeting to be adjourned. No meeting may be adjourned for more than 45 days.
4.8 Voting/Members Meetings
(a) Eligibility to vote. The members eligible to vote shall be
those members defined in Section 3.1. There are shall only
be one vote per household. Such vote shall only be exercised
by an adult and, in the event such adults fail to agree now
such vote should be cast, then the vote shall be disallowed.
(b) Manner of casting votes. Votes may be by voice or ballot,
provided that any election of directors may be by ballot if
demanded by any voting member before the voting begins.
(c) Only majority of voting members represented at meeting
required, unless otherwise specified. If a quorum is
present, the affirmative vote of the majority of the voting
members represented by the meeting, entitled to vote and
voting on any matter (other than the election of directors),
shall be the act of the members.
(d) Voting by Proxy. There shall be no Voting by Proxy
permitted.
4.9 Record Dates for Member Notice, Voting, Giving Consents and
Other Actions
(a) To be determined by Board of Directors. For the purposes of
determining which members are entitled to vote or to take
any other action, the Board of Directors may fix in advance
a record date, which should be between 10-60 days before the
date of any such meeting. For the purpose of determining
which members are entitle to receive notice of any meeting,
the recorded dates shall be between 10-90 days before the
date of any such meeting. Only members of record on the date
so fixed are entitled to notice, to vote, or to take other
action, as the case may be, notwithstanding any transfer of
any membership on the books of the corporation after the
record date, except as otherwise provided in the Articles of
Incorporation, by agreement, or in the New York Not-for-
profit corporation Law.
(b) Failure of the Board to determine date:
(i) Record date for notices or voting. Unless fixed by
the Board of Directors, the record date for
determining those members entitled to receive
notice of a meeting of members shall be the next
business day preceding the day on which notice is
given or, if notice is waived, the next business
day preceding the day on which the meeting is held.
Unless fixed by the Board of Directors, the record
date for determining those members entitled to vote
at a meeting of members shall be the date of the
meeting.
(ii) Record date for other actions. Unless fixed by the
Board, the record date of determining those members
entitled to take any other action shall be the
dated the board adopts the resolutions relating
thereto, or the 60th day prior to the date of such
otheraction, whichever is later.
(iii) Record date is defined to mean ‘as of close of
business’.
Article V
Number and Composition of Board of Directors
The Board of Directors of the corporation shall consist of no fewer than three (3) and no greater than nine (9) elected officers all of whom must be current members in good standing and have been members of the corporation for the twelve (12) months prior to their election.
The President must have served on the board for the previous twelve months. Interested persons shall not be allowed to serve on the Board of Directors. An interest person is:
(i) Any person being compensated by the corporation for services rendered to it within the previous 12 months, whether as a full-time or part-time employee, independent contractor or otherwise, and any brother, sister, ancestor, descendant, spouse (future or past and not based on gender), brother-in- law, sister-in-law, daughter-in-law, mother-in-law or father-in-law of any such person.
Article VI
Election of Directors
6.1 Nominations and Solicitations for Votes
(a) Nominating committee. The President shall appoint a
committee consisting of three members with at least one
member from the Board of Directors, to select qualified
candidates for election to the Board of Directors. The
nominating committee shall make its report at least 30 days
before the date of the election and the secretary shall
forward to each member, with the notice of meeting required
by Section 4.5, a list of candidates nominated.
(b) Nominations by voting members. Voting members representing
15% of the voting membership may nominate candidates for
directorships by filing a petition with an officer of the
corporation at any time before the tenth day preceding such
election. On timely receipt of a petition signed by the
required number of voting members, the secretary shall cause
the names of the candidates named on it to be placed on the
ballot along with those candidates named by the nominating
committee.
(c) Nominations from the floor. If there is a meeting to elect
directors, any voting member present at the meeting may
place names in nomination and forego (b) above.
(d) Use of corporate funds to support nominee. No corporate
funds may be expended to support a nominee officiating in
any capacity.
6.2 Vote Required to Elect Director
Candidates receiving the highest number of votes shall be elected as directors.
Article VII
Board of Directors
7.1 Powers
(a) General corporate powers. Subject to the Articles of
Incorporation and these bylaws relating to action required
to be approved by the members, the business and affairs of
the corporation shall be managed, and all corporate powers
shall be exercised, by or under the direction of the board
of directors.
(b) Specific Powers. Without prejudice to these general powers,
and subject to the same limitations, the directors shall
have the power to:
(i) Select all agents and employees of the corporation; remove all agents and employees of the corporation and prescribe any powers and duties for them that are consistent with law, with the Articles of Incorporation and with these by laws:
(ii) Change the principal office or the principal business office in the State of New York from one location to and conduct business within or outside the State of New York; and designate any place within State of New York for the holding of any members’ meeting or meetings, including annual meeting;
(iii) Adopt, make and use a corporate seal and, where appropriate, alter the form of the seal;
(iv) Develop an annual budget and borrow money and insure indebtedness on behalf of the corporation and cause to be executed and delivered for the corporation’s purposes, in the corporate name, promissory notes, bonds, debentures, mortgages, pledges, hypothecation and other evidences of debt and securities.
7.2 Election and Term of Office of Directors
Directors shall initially be elected by the incorporators at the Corporation’s organizational meeting and shall hold office until the next annual meeting; provided, however, that if any annual meeting is not held or the directors are not elected thereat, they may be elected at any special members’ meeting held for that purpose. Each such director, including a director elected to fill a vacancy or elected at a special members’ meeting, shall hold office until expiration of the term for which elected and until a successor has been elected and qualified.
7.3 Duties of Officers
(a) President. The President shall serve as the executive
officer of the corporation. The President shall call all
regular meetings of the Board of Directors and the annual
meeting of the membership. The President shall preside and
preserve order at all meetings. The President may appoint
committees and shall be a member ex-officio of all
committees.
(b) Vice President. The Vice President shall assist the
President in the management of the club. In the absence or
disability of the president, the Vice-President shall
perform all of the duties of the President and when so
acting shall have all the powers of and be subject to all
the restrictions upon the president. The Vice President
shall have such other powers and perform such other duties
as from time to time may be prescribed by the Board of
Directors.
(c) Secretary. The secretary shall attend to the following:
(i) The Secretary shall keep or cause to be kept, at the
principal office or such other place as the Board
of Directors may direct, a book of minutes (all
meetings and actions of directors, committees of
directors and members, with the time and place of
holding, whether regular or special and, if
special, how authorized the notice given, the names
of those present at such meetings, the number of
members present or represented at members’ meetings
and the proceedings of such meeting.
(ii) The secretary shall keep, or cause to be kept, at
the principal office and simultaneously on the
website as determined by resolution of the Board of
Directors, a record of the corporation’s members,
showing the names of all members and their
addresses. Upon registration members should be
able to choose to not have their email address
public.
(iii) The secretary shall give, or cause to be given
notice of all meetings of the members and of the
Board of Directors required by the by-laws to be
given. S/he shall keep the seal of the corporation
in safe custody. S/he shall have such other powers
and perform such other duties as may be prescribed
by the Board of Directors or the by-laws.
(d) Treasurer
(i) The Treasurer shall keep and maintain, or cause to
be kept and maintained, adequate and correct books
and records of accounts of the properties and
business transactions of the corporation, including
accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained
earnings and other matters customarily included in
financial statements. The books of account shall be
open to inspection by any director at all reasonable
times.
(ii) Deposit and disbursement of money and valuables. The
treasurer shall deposit money and other valuables in
the name and to the credit of the corporation with
such depositories as may be designated by the Board
of Directors; shall disburse the fund of the
corporation as may be ordered by the Board of
Directors; shall render to the chairman of the board
and/or the president and directors, whenever they
request an account of all of his transactions as
treasurer and of the financial condition of the
corporation; and shall have other powers and perform
such other duties as may be prescribed by the Board
of Directors or the by-laws.
7.4 Vacancies
(a) A vacancy or vacancies in the Board of Directors shall be
deemed to exist on the occurrence of the following:
(i) The death, resignation or removal of any director;
(ii) The declaration by resolution of the Board of
Directors of a vacancy of the office of the director
who has been declared of unsound mind by an order of
court or convicted of a felony.
(iii)The failure of the voting members at any meeting of
members at which any director or directors are to be
elected to elect the number of directors to be elected
at such meeting.
(iv) In the event a suitable replacement is not found from
the existing board, the general membership shall then
be consulted for a suitable replacement.
(b) Except as provided in this paragraph, any director may
resign, which resignation shall be effective on giving
written notice to the president, the secretary or the Board
of Directors, unless the notice specifies a later time for
the resignation to become effective. If the resignation of a
director is effective at a future time, the Board of
Directors may elect a successor to take office as of the
date when the resignation becomes effective. If unforeseen
circumstances should arise the president shall appoint a
replacement for the remainder of the year.
(c) Except for a vacancy created by the removal of a director,
vacancies on the Board of Directors may be filled by a
majority vote of directors then in office or by a sole
remaining director.
(d) No reduction of the authorized number of directors shall
have the effect of removing any director before that
director’s term of office expires.
7.5 Place of Directors Meetings; Meetings by Telephone
Regular meetings of the Board of Directors may be held at any place within the State of New York that has been designated from time to time by resolution on the board. In the absence of such designation, regular meetings shall be held at the principal office of the corporation or any other place within the State of New York that has been designated in the notice of the meeting or, if not stated in the notice or, if there is no notice, at the principal office of the corporation. Notwithstanding the above provisions of this Section 7.5 a regular or special meeting of the Board of Directors may be held at any place consented to in writing by all the board members, either before or after the meeting. If consents are given, they shall be filed with the minutes of the meeting. Any meeting, regular or special, may be held by conference telephone or similar communication equipment, so long as all directors participating in the meeting can hear one another and all such directors shall be deemed to be present in person at such meeting.
7.6 Regular Directors Meetings
Regular meetings of the Board shall be held at least quarterly, and Special Meetings upon call at the place designated by the Board, and may be called by the President or three members of the Board upon five (5) days written notice.
Other regular meetings of the Board of Directors shall be held without call at such time as shall from time to time be fixed by the Board of Directors. Such regular meetings may be held without notice.
7.7 Special Directors Meetings
(a) Special meetings of the Board of Directors for any purpose
may be called at any time by the President, the Vice
President, the Secretary or any two (2) directors.
(b) Notice.
(i) Notice of the time and place of special meetings shall
be given to each director by one of the following
methods: (a) by personal delivery of written notice;
(b) by first-class mail, postage paid; (c) by telephone
communication, either directly to the director or to a
person at the director’s office who would reasonably be
expected to communicate such notice promptly to the
director;(d) by facsimile or (e) by an acceptable
electronic means, charges prepaid. All such notices
shall be given or sent to the director’s address or
telephone number as shown on the records of the
corporation.
(ii) Notices sent by first class mail shall be deposited
into a United States mailbox at least four (4)days
before the time set for the meeting. Notices given by
personal delivery, telephone or electronic
communication shall be delivered at least 48 hours
before the time set for the meeting.
(iii) The notice shall state the time and place for the
meeting. However, it need not specify the purpose of
the meeting.
7.8 Quorum
A majority of the authorized number of directors shall constitute a quorum for the transaction of business, except to adjourn as provided in Section 7.1. Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board of Directors.
7.9 Waiver of Notice
The transactions of any meeting of the Board of Directors, however called and noticed or wherever held, shall be as valid as though taken at a meeting duly held after regular call and notice if:
(a) A quorum is present; and
(b) Either before or after the meeting, each of the directors
present signs a written waiver or notice or consent to
holding the meeting. The waiver of notice or consent need
not specify the purpose of the meeting. All waivers,
consents, and approvals shall be filed with the corporate
records or made a part of the minutes of the meeting. Notice
of a meeting shall also be deemed given to any director who
attends the meeting without protesting before, or at its
commencement, about the lack of adequate notice.
7.10 Adjournment
A majority of the directors, whether or not constituting a quorum, may adjourn any meeting to another time and place.
7.11 Notice of Adjournment
Notice of the time and place of holding an adjourned meeting need not be given, unless the meeting is adjourned for more than 24 hours, in which case personal notice of the time and place shall be given before the time of the adjourned meeting to the directors who were not present at the time of the adjournment.
7.12 Action without Meeting
Any action required or permitted to be taken by the Board of
Directors may be taken without a meeting, if all members of the board, individually or collectively, consent in writing to that action. Such action by written consent shall have the same force and effect as a unanimous vote of the Board of Directors. Such written consent or consents shall be filed with the minutes of the proceedings of the board.
7.13 Fees and Compensation
Directors and members of committees shall receive:
(a) No compensation for their services; and
(b) Such reimbursement of expenses as may be determined by
resolution of the Board of Directors to be just and
reasonable.
Article VIII
Coaching Staff
8.1 Coaching Staff
The Coaching Staff shall work to ensure all swimmers develop the necessary skills needed to be a competitive swimmer. The coaches shall assure that all practices and competitions be conducted in a controlled, safe and healthful atmosphere.
8.2 Head Coach
The head coach is responsible for organizing and maintaining the swim program by:
(a) Working closely with the Board of Directors to assure these
by-laws and all directives be upheld and carried out to the
satisfaction of all concerned;
(b) Meeting with all other coaches on a regular basis to
coordinate instruction, swimmer’s progress and the general
adherence to all rules and regulations necessary to meet the
goals of the corporation;
(c) Managing the activities of all other coaches;
(d) Coordinating the participation of the corporation in all
swim meets;
(e) Acting as a liaison between Board of Directors and coaching
staff keeping them apprised of status of the club, any
incidents or situations which may inhibit the growth of the
club or any other knowledge s/he might feel necessary to
impart to the Board of Directors which may either negatively
or positively affect the club.
Article IX
Indemnification of Directors, Officers,
Employees and Other Agents
9.1 Definitions
For the purpose of this article:
(a) “Agent” means any person who is or was a director, officer,
employee, or other agent of this corporation, or is or was
serving at the request of this corporation as a director,
officer, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other
enterprise, or was a director, officer, employee, or agent
of a foreign or domestic corporation that was a predecessor
corporation of this corporation or of another enterprise at
the request of the predecessor corporation;
(b) “Proceeding’ means any threatened, pending, or completed
action or proceeding to which the corporation or its agent
is a party, whether civil, criminal, administrative or
investigative; and
(c) “Expenses” include, without limitation, all attorney’s fees,
costs and any other expenses incurred in the defense of any
claims or proceedings against an agent by reason of his
position or relationship as agent and all attorneys’ fees,
costs and other expenses incurred in establishing a right to
indemnification under this Article.
9.2 Successful Defense by Agent
To the extent that an agent of this corporation has been successful on the merits in the defense of any proceeding referred to in this Article 9 or in the defense of any claim, issue or matter therein, the agent shall be indemnified against expenses actually and reasonably incurred by the agent in connection with the claim. If an agent either settles any such claim or sustains a judgment rendered against him, then the provisions of Sections 10.3 through 10.6 hereof shall determine whether the agent is entitled to the indemnification.
9.3 Action Brought by or on Behalf of the Corporation
Subject to the required findings to be made pursuant to Section
9.5, below, this corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any proceeding other than any action brought by, or on behalf of, this corporation, or by an officer, director or person granted related status by the Attorney General, or by the Attorney General on the ground that the defendant director was or is engaging in self-dealing or by the Attorney General or a person granted related status by the Attorney General for any breach of duty relating to assets held in charitable trust, by reason of the fact that such person is or was an agent of this corporation, for all expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with the proceeding.
9.3 Action Brought by or on Behalf of the Corporation
(a) Claims settled out of court. If any agent settles or
otherwise disposes of a threatened or pending action brought
by or on behalf of this corporation, with or without court
approval, the agent shall receive no indemnification for
either amounts paid pursuant to the terms of the settlement
or other disposition or for any expenses incurred in
defending against the proceeding, unless it is settled with
the approval of the Attorney General.
(b) Claims and suits awarded against the agent. This corporation
shall indemnify any person was or is a party, or is
threatened to be made a party, to any threatened, pending or
completed action brought by or on behalf of this corporation
by reason of the fact that the person is or was an agent of
this corporation, for all expenses actually and reasonably
incurred in connection with the defense of that action,
provided that both of the following are met:
(i) The determination of good faith conduct required by
Section 10.5 below, must be made in the manner
provided for in that section; and
(ii) Upon application, the court in which the action was
brought must determine that, in view of all of the
circumstances of the case, the agent should be
entitled to indemnify for the expenses incurred. If
the agent is found to be so entitled, the court
shall determine the appropriate amount of expenses
to be reimbursed.
9.5 Determination of Agent’s Good Faith Conduct
The indemnification granted to an agent in Sections 9.5 and 9.3 above is conditioned on the following:
(a) Required standard of conduct. The agent seeking
reimbursement must be found in the manner provided below to
have acted in good faith, in a manner he believed to be in
the best interest of this corporation, and with such care,
including reasonable inquiry, as an ordinarily prudent
person in a like position would use in similar
circumstances. The termination of any proceeding by
judgment, order, settlement, conviction, or on a plea of
nolo-contendere or its equivalent shall not, of itself,
create a presumption that the person did not act in good
faith or in a manner which he reasonably believed to be in
the best interest of this corporation or that he had
reasonable cause to believe that his conduct was unlawful.
In the case of a criminal proceeding, the person must have
had no reasonable cause to believe that his conduct was
unlawful.
(b) Manner of determination of good faith conduct. The
determination that the agent did act in a manner complying
with subsection (a) above shall be made by:
(i) The Board of Directors by a majority vote of a quorum consisting of directors who are not parties to the proceeding; or
(ii) The voting members by an affirmative vote (or by
written ballot in accord with Section 4.8 of a
majority of the voting members represented and
voting at a duly held meeting of members at which
a quorum is present, which affirmative vote also
constitutes a majority of the required quorum; provided, however, that the person to be indemnified shall not be entitled to vote; or
(iii) The court in which the proceeding is or was pending. Such determination may be made on application brought by this corporation or the attorney of the agent or other person rendering a defense to the agent, whether or not the application by the agent, attorney or other person is opposed by this corporation.
9.6 Insurance
The Board of Directors may adopt a resolution authorizing the purchase and maintenance of insurance on behalf of any agent of the corporation against any liability other than for violating provisions against self-dealing asserted against or incurred by the agent in such capacity or arising out of the agent’s status as such, whether or not this corporation would have the power to indemnity the agent against that liability under the provisions of this Article IX.
Article X
Amendments
Amendments to these by-laws may be made by a unanimous vote of the Board of Directors and two-thirds of the votes of members present eligible to vote as per Section 4.8 at a special meeting called for this purpose.
Article XI
Miscellaneous
****Any issue not addressed herein shall be referred to Roberts
Rules of Order for guidance****
ADOPTION OF BY-LAWS
We, the undersigned, are all the Directors of this corporation, and we consent to, and thereby do, adopt the foregoing by-laws, Consisting of the preceding ___ pages, as the By-Laws of this corporation.
Dated: __________________
____________________________________________, President
____________________________________________, Vice President
____________________________________________, Secretary
____________________________________________, Treasurer
