Bylaws of Texas Coal Ash Utilization Group, Inc
BYLAWS
of
Texas Coal Ash Utilization Group, Inc.
a
Non-Profit Corporation
ARTICLE I - OFFICES
1.01 Registered Office and Registered Agent.
The corporation shall have and continuously maintain in the State of
1.02 Principal Office. The
principal office of the corporation in the State of
ARTICLE II - PURPOSES AND PRINCIPLES
2.01 Purposes. The corporation is an organization and
business league of members joined together because of mutual concern and
interest in the socially beneficial, technically sound and environmentally safe
utilization of coal combustion products or by-products (hereinafter coal
combustion products).
• The
corporation shall promote the general welfare of the coal combustion products
industry; and
• Inform
and educate members, government officials and others on matters related to the
utilization of coal combustion products; and
• Establish
and promote standards of professional practice and utilization of coal
combustion products; and
• Provide
members a medium through which they may coordinate technical and regulatory
information of common interest; and
• Encourage the development
and adoption of consistent and rational, federal, state and local environmental
regulations, practices and policies to assure appropriate utilization of coal
combustion products; and
• To
work with and cooperate with governmental officials, agencies, material specifiers, end-users and others in activities that
carry-out the purposes stated herein and improve the opportunities for
beneficial utilization of coal combustion products.
The corporation shall not
engage in any activity ordinarily carried on for profit, nor engage in the
performance of particular services for individual parties, nor use any of the
corporation’s funds solely for the benefit of specific individual
members.
ARTICLE III - MEMBERS
3.01 Membership Qualifications. Any company, firm,
association or individual that is in substantial agreement with the purposes
and founding principles of the corporation, as stated in Article II, shall be
eligible for membership. An eligible company, firm, association or
individual shall become a member of the corporation upon submission of an
application for membership to the corporation, acceptance of the membership
request as provided by the Board of Directors, and payment of any applicable
initiation fees. The Board of Directors, may,
upon the affirmative vote of two-thirds (2/3) of the members of the Board,
elect to reject membership of any applicant. The Board of Directors shall
have the power to set the amount of initiation fees for application of new
members from time to time and shall have authority to set differing annual dues
rates or charges for individuals or organizations who are voting and non-voting
members. The voting members of the corporation, in addition to having the
right to vote, shall have such additional rights as may be determined by the
Board of Directors.
3.02 Classification of Members. The corporation shall
have the following classifications for dues and membership:
1. Standard members - voting.
Companies, firms, entities, associations or businesses engaged in activities
having a substantial interest in the utilization of coal combustion products.
2. Special members - non-voting. A firm, entity, state or federal agency or an individual having an
interest in the utilization of coal combustion products that is selected by a
two-thirds (2/3) vote of the Board of Directors. Special
membership may be cancelled by vote of the Board of Directors in accordance
with Section 3.05 of these Bylaws.
Each company, firm, entity,
association or business member shall be represented in activities of the
corporation by individual(s) appointed and designated by the member.
Whenever the designated representative or representatives are not available, the
member shall appoint an alternate or alternates to attend any meeting or
otherwise act with respect to any responsibility of membership.
3.03 Voting. Each company, business, association, firm
or entity that is a standard member shall be entitled to one vote, which may be
cast in person or by proxy, on each matter submitted to a vote of the members
as required by these Bylaws, the Articles of Incorporation or applicable
law. The standard members of the corporation, in addition to having the
right to vote, shall have such additional rights as may be determined by the
Board of Directors.
3.04 Additional Classes of Members. The membership
shall have the authority to determine, from time to time, additional classes of
members of the corporation by a resolution duly adopted by a two-thirds (2/3)
vote of the standard members present at a meeting called to consider such
measure, which resolution shall set forth such additional classes,
qualifications, manner of election or appointment of members and rights of members,
which may include voting rights.
3.05 Termination of Membership. The Board of Directors,
by affirmative vote of two-thirds (2/3) of all of the members of the Board, may
suspend or expel a member for cause after an appropriate hearing and may, by a
majority vote of those present at any regularly constituted meeting, terminate
the membership of any member who becomes ineligible for membership, or suspend
or expel any member who shall be in default in the payment of dues for the
period fixed in Article XI of these Bylaws.
3.06 Resignation. Any member may resign by filing a
written resignation with the Secretary, but such resignation shall not relieve
the member so resigning of the obligation to pay any dues, assessments, or
other charges theretofore accrued and unpaid.
3.07 Reinstatement. Upon written request signed by a
former member and filed with the Secretary, a member may reinstate its
membership in the corporation upon payment of such annual dues as may be
required, payment of any past due amounts and the fulfillment of such other
qualifications as may be required for the class of membership to which such
member is seeking reinstatement. The Board of Directors may, by the
affirmative vote of two-thirds (2/3) of the members of the Board, elect not to
reinstate such former member to membership or only on such terms and conditions
as the Board of Directors may deem appropriate.
3.08 Transfer of Membership. Membership in this
corporation is not transferable or assignable.
3.09 Effect of Termination. Upon termination of
membership through expulsion, resignation or otherwise, all interest and right
of a former member in the operations and affairs of the corporation shall
cease.
ARTICLE IV - MEETINGS OF MEMBERS
4.01 Annual Meeting. The annual meeting of the members
shall be held at a time and on a day to be selected by the Board of Directors
during the fourth quarter preceding the end of the corporation’s fiscal
year. At each such annual meeting, the voting members shall elect
officers and transact such other business as may be properly brought before the
meeting.
4.02 Special Meetings. Special meetings of the members
may be called by the President, the Board of Directors, or not less than
one-fifth (1/5) of the voting members.
4.03 Place of Meeting. The President or the Board of
Directors may designate any place, either within or without the State of
4.04 Notice of Meetings. Written, printed or email
notice stating the place, day and hour of any meeting of members shall be
delivered, personally, by mail or electronically to each member not less than
ten (10) nor more than fifty (50) days before the date of such meeting.
In case of a special meeting or when required by statute or these Bylaws, the
purpose or purposes for which the meeting is called shall be stated in the notice.
If mailed, the notice of a meeting shall be deemed to be delivered when
deposited in the
4.05 Action by Unanimous Written Consent. Any action
required by law to be taken at a meeting of the members or any action which may
be taken at a meeting of the members may be taken without a meeting, if a
consent in writing, setting forth the action so taken, shall be signed by all
of the members entitled to vote with respect to the subject matter thereof.
4.06 Quorum. The members holding forty percent (40%) of
the votes which may be cast at any meeting shall constitute a quorum at such
meeting. If a quorum is not present at any meeting of members, a majority
of the members present may adjourn the meeting from time to time without
further notice.
4.07 Action by Members. When a quorum is present at any
meeting, the vote of a majority of the members having voting rights, present in
person or represented by proxy, shall decide any question brought before such
meeting, unless the question is one upon which a different vote is required by
statute, the articles of incorporation, or these Bylaws.
4.08 Proxies. At any meeting of members, a member
entitled to vote may vote by proxy executed in writing by the member or by his
duly authorized alternative. No proxy shall be valid after eleven (11)
months from the date of its execution, unless otherwise provided in the proxy.
4.09 Voting by Mail. Where officers are to be elected
or action taken by the members of any class or classes of members, such
election or action may be conducted by mail or electronically in such manner as
the Board of Directors shall determine.
4.10 Attendance at Meetings. Voting and non-voting
members may attend any meeting. Any member may invite one or more guests
to attend a meeting. However, the President, upon prior notice, shall
have the discretion to restrict a meeting to members only or to voting members
only. If prior notice is not given, the President may restrict, at his or
her discretion, portions of a meeting to members only.
ARTICLE V - BOARD OF DIRECTORS
5.01 General Powers. Directors must be voting members,
or representatives of voting members, of the corporation. The affairs of
the corporation shall be managed by its Board of Directors and shall include,
but not be limited to, the following:
1. Propose,
adopt and implement all desirable policies and programs that will carry out the
purposes and support the Founding Principles of the corporation.
2. Oversee
and execute programs adopted by the general membership.
3. Determine
membership eligibility and set dues amounts.
4. Arrange
for audits and other financial, technical and legal services as necessary.
5. Fill
interim vacancies on the Board of Directors.
6.
Determine the need, composition, retention and compensation of professional
assistance; arrange and execute agreements with other entities for legal,
technical, administrative and staff support service for the corporation.
7. Transact
the routine business of the corporation.
8.
Perform other duties as expressed in these Bylaws.
The corporation is composed of
a group of members that have substantially similar interests and goals.
The corporation, however, recognizes that its members come from a broad base of
varied industry and commerce and for this and other reasons each and every
member of the corporation may not be in total agreement with each and every
program, policy or action taken in the name of the corporation by a majority
determination in accordance with these Bylaws.
Accordingly, when possible,
all major policy and action proposals shall be fully presented and outlined to
the membership. Proposals to be voted on by the membership will be
submitted within a reasonable time frame for timely review by each voting
member prior to voting.
5.02 Number, Tenure and Qualifications. The directors
named in the article of incorporation shall hold office until
the first meeting of the members and until their successors are elected
and qualified. The officers elected to serve the corporation
shall automatically be elected to serve on the Board of Directors.
The number of directors may be
increased or decreased, but never below three (3), by affirmative vote of
two-thirds of the voting members.
5.03 Regular Meetings. A regular meeting of the Board
of Directors shall be held without other notice than this Bylaw, the first
Thursday of December. The Board of Directors may provide by resolution
the time and place, either within or without the State of
5.04 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 may fix any place, either within or without the State of
5.05 Notice. Notice of any special
meeting of the Board of Directors shall be given at lease two days previously
thereto by written notice delivered personally or sent by mail or email to each
director at the address as shown by the records of the corporation. If
mailed, such notice shall be deemed to be delivered two (2) days after the date
deposited in the
5.06 Quorum. A majority of the Board of Directors shall
constitute a quorum for the transaction of business at any meeting of the
Board; but if less than a majority of the directors are present at said
meeting, a majority of the directors present may adjourn the meeting from time
to time without further notice.
5.07 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 by law
or by these Bylaws.
5.08 Vacancies. Any vacancy occurring in the Board of
Directors and any directorship to be filled by reason of an increase in the
number of directors, shall be filled by the Board of
Directors. A director elected to fill a vacancy shall be elected for the
unexpired term of the predecessor in office. In the event a director
resigns from, or otherwise leaves the employ of, the member company for which
he or she was serving as a representative, such director shall resign from the
Board and the Board shall act to fill the position in accordance with the
vacancy provisions of this section.
5.09 Compensation. Officers and directors shall not
receive any compensation for their services.
5.10 Action
by Unanimous Written or Email Consent. Any action required by law to
be taken at a meeting of directors, or any action which may be taken at a
meeting of directors, may be taken without a meeting if consent in writing or
by email setting forth the action so taken shall be signed or received
electronically by all of the directors.
5.11 Voting
by Mail. Where action is to be conducted by the Board of Directors,
such action may be conducted by mail or electronically via email in such manner
as the Board of Directors shall designate.
ARTICLE VI - OFFICERS
6.01 Officers. The officers of the corporation shall
consist of a President, a Vice President, a Secretary, a Treasurer and a
Trustee. The Board of Directors may elect or appoint such other officers,
including, but not limited to, one of more Assistant Secretaries and one of
more Assistant Treasurers, as it shall deem desirable, such officers to have
the authority and perform the duties prescribed, from time to time, by the
Board of Directors. All officers elected or appointed to serve on the
Board of Directors shall serve as voting members of the Board of
Directors. Any two or more offices may be held by the same person, except
the offices of President and Secretary. Provided
however, that at least three (3) officers must be elected to serve.
No voting member shall have more than one officer elected from that member.
6.02 Election
and Term of Office. The officers of the corporation shall be elected
annually by majority vote of a quorum of the voting members at the regular
annual meeting of the members. If the election of officers shall not be
held at such meetings, such election shall be held as soon thereafter as may be
convenient. New offices may be created and filled at any meeting of the
Board of Directors. Each officer shall hold office until a successor
shall have been duly elected and shall have qualified.
At the first meeting of the
membership the following officers shall be elected to serve:
President
until December 31, 2002
Vice
President until December 31, 2002
Secretary
until December 31, 2003
Treasurer
until December 31, 2003
Trustee until
December 31, 2002
At the
annual meeting of the membership in December 2002, the following officers shall
be elected to serve:
President
until December 31, 2004
Vice
President until December 31, 2004
At the annual meeting of the
membership in December 2003, the following officers shall be elected to serve:
Secretary
until December 31, 2005
Treasurer
until December 31, 2005
Trustee until
December 31, 2005
Thereafter, the officers shall
be elected on alternate annual member meetings so that each officer serves a
term of two (2) years, commencing on January 1 of the year following his or her
election and ending on December 31 of the second year following his or her
election, until a successor is elected and qualified.
It is recommended, but not
required, that the officer serving as Vice President be elected to serve as
President upon the expiration of the President’s term.
6.03 Removal. Any officer elected by the members may be
removed by a two-thirds (2/3) vote of the Board of Directors whenever in its
judgment the best interests of the corporation would be served thereby or by
the members at a special meeting of members called for that purpose.
6.04 Vacancies. A vacancy in any office because of
death, resignation, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term. Notwithstanding the
aforesaid, a permanent vacancy in the office of President shall be filled by
the Vice President.
6.05 President. The President shall be the principal
executive officer of the corporation and shall in general supervise and control
all of the business and affairs of the corporation. He or she shall
preside at all meetings of the members and of the Board of Directors. The
President may sign, with the secretary or any other proper officer of the
corporation authorized by the Board of Directors, any deeds, mortgages, bonds,
contracts, or other instruments and agreements which the Board of Directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these
Bylaws or by statute to some other officer or agent of the corporation; and in
general the President shall perform all duties incident to the office of
President and such other duties as may be prescribed by the Board of Directors
from time to time.
6.06 Vice President. In the absence of the President or
in the event the President is unable or refuses to act, the Vice President
shall perform the duties of the President and when so acting shall have all the
power of and be subject to all the restrictions upon the president. Any
Vice President shall perform such other duties as from time to time may be
assigned by the President or Board of Directors.
6.07 Treasurer. If required by the Board of Directors,
the Treasurer shall give a bond for the faithful discharge of his or her duties
in such sum and with such surety or securities as the Board of Directors shall
determine. The Treasurer shall have charge and custody of and be
responsible for all funds and securities of the corporation; receive and give
receipts for moneys due and payable to the corporation and from any source
whatsoever, and deposit all such moneys in the name of the corporation in such
banks, trust companies, or other depositories as shall be selected in
accordance with the provisions of Article VIII of these Bylaws; and in general
perform all the duties incident to the office of Treasurer and such other
duties as from time to time may be assigned by the President or by the Board of
Directors.
6.08 Secretary. The Secretary shall keep the minutes of
the meetings of the members and of the Board of Directors in one or more books
provided for that purpose; give all notices in accordance with the provisions
of these Bylaws or as required by law; be custodian of the corporation records
and of the seal of the corporation, and affix the seal of the corporation to
all documents, the execution of which on behalf of the corporation under its
seal is duly authorized in accordance with the provisions of these Bylaws; keep
a register of the post-office and email addresses of each member which shall be
furnished to the Secretary by each member; and, in general, perform all duties
incident to the office of Secretary and such other duties as from time to time
may be assigned by the President or by the Board of Directors.
6.09 Assistant Treasurer and Assistant Secretaries. If
required by the Board of Directors, the Assistant Treasurers shall give bonds
for the faithful discharge of their duties in such sums and with such sureties
as the Board of Directors shall determine. The Assistant Treasurers and
Assistant Secretaries in general shall perform such duties as shall be assigned
to them by the Treasurer or the Secretary or by the President or the Board of
Directors.
6.10 Resignation of Officers. Any officer that intends
to resign from office shall provide the Board of Directors sixty (60) days
notice prior to the date of such resignation.
ARTICLE VII - COMMITTEES
7.01 Standing Committees. The Standing Committees of
the corporation shall include, but not be limited to the following:
1. Education and Information Committee.
2. Regulatory/Legislative Committee.
3. Membership Committee.
4. Nominating Committee.
Committee members may be
selected from the voting and non-voting members of the corporation. The
chairpersons and committee members of standing committees shall be appointed by
the President.
7.02 Education and Information. This committee shall
advise and assist the Board of Directors in carrying out the educational
policies and initiatives of the corporation and shall provide for collection
and preservation of educational materials, data and other information related
to coal combustion product utilization. This committee will help
disseminate the positions and programs of the corporation through the media,
selected forums and printed materials.
7.03 Regulatory/Legislative Committee. This committee
shall monitor and keep abreast of significant federal and state regulatory and
legislative developments and serve as a liaison between members of the
corporation and federal, state and local governments and agencies. This
committee will also recommend to the Board of Directors and the members’
strategies for improving opportunities in utilization of coal combustion products.
7.04 Membership Committee. This committee shall
implement all programs related to membership recruitment, service and
development.
7.05 Nominating Committee. This committee shall
recommend a slate of candidates for any director or officer position that is
required to be filled.
7.06 Other Committees. Other committees may be created
from time to time by resolution of the Board of Directors. Members or
such committees shall be appointed by the President. Except
as otherwise provided in such resolution, the members of each such committee
are not required to be voting members of the corporation. Any
members thereof may be removed by the President whenever in the President’s
judgment the best interests of the corporation shall be served by such removal.
7.07 Term of Office. Each member of a committee shall
continue as such until a successor is appointed, unless the committee shall be
sooner terminated, or unless such member resigns or is removed from such
committee, or unless such member shall cease to qualify as a member thereof.
7.08 Vacancies. Vacancies in the membership of any
committee may be filled by appointments made in the same manner as provided in
the case of the original appointments.
7.09 Quorum. Unless otherwise provided in the resolution
of the Board of Directors designating a committee, a majority of the whole
committee shall constitute a quorum and the act of a majority of the members present
at a meeting at which a quorum is present shall be the act of the committee.
7.10 Rules. Each committee may adopt rules for its own
government not inconsistent with these Bylaws of with rules adopted by the
Board of Directors.
ARTICLE VIII - CONTRACTS, CHECKS, DEPOSITS AND FUNDS
8.01 Contracts. The Board of Directors may authorize
any officer or officers, agent or agents of the corporation, in addition to the
officers so authorized by these Bylaws, to enter into any contract or execute
and deliver any instrument in the name of and on behalf of the corporation
provided that such contract or instrument is not in violation of these Bylaws,
the Articles of Incorporation or applicable law. Such authority may be
general or confined to specific instances.
8.02 Checks and Drafts. All checks, drafts, or orders
for the payment of money, notes, or other evidences of indebtedness issued in
the name of the corporation shall be signed by the President or such other
officer or officers of the corporation as may be determined by the Board of
Directors and countersigned by the Treasurer or by such other officer or
officers as may be designated by the Board of Directors. Except that
checks, drafts, or orders for payment of money in an amount of one thousand
dollars ($1,000.00) or less need not be countersigned.
8.03 Deposits. All funds of the corporation shall be
deposited from time to time to the credit of the corporation in such banks,
trust companies, or other depositories as the Board of Directors may select.
8.04 Gifts. The Board of Directors may accept on behalf
of the corporation any contribution, gift, bequest, or devise for the general
purposes or for any special purpose of the corporation.
ARTICLE IX - BOOKS
AND RECORDS
9.01 The corporation shall keep correct and complete books and
records of account in accordance with all applicable laws, and shall also keep
minutes of the proceedings of its members, Board of Directors, and committees
having any of the authority of the Board of Directors, and shall keep at the
registered or principal office a record giving the names and addresses of the
members entitled to vote. All books and records of the corporation may be
inspected by any member or their agent or attorney for any proper purpose at
any reasonable time.
ARTICLE X - FISCAL
YEAR
10.01
The fiscal year of the corporation shall begin on the first day of
January and end on the last day in December, in each year.
ARTICLE XI - DUES
11.01 Initiation Fee and Annual Dues.
The corporation shall be financed by the initial contributions of its members
and by such additional initiation fees, annual dues and periodic special
assessments as may from time to time be voted by a majority vote of the Board
of Directors.
11.02 Payment of Dues.
1. Membership Initiation Fees - shall be
payable in advance when the application for membership is submitted.
Initiation fees shall be returned to the applicant if membership is denied.
2. Annual Dues - shall be payable on the
first working day of January of each year; provided however, that annual dues
shall not be due for the first twelve (12) months after payment of the initiation
fee. Annual dues shall not be refundable to resigning or removed
members. The membership dues for the fiscal year following the year in
which the new member joins shall be prorated based on the calendar quarter in
which the new member submitted their application for membership as follows:
3. Dues shall be made payable to the
corporation and submitted to the Treasurer.
MONTH APPLICATION TENDERED DUES AT THE TIME
OF RENEWAL
January,
February, March 100%
April,
May, June 75%
July,
August, September 50%
October,
November, December 25%
11.03 Default and Termination of Membership.
When any member of any class shall be in default in the payment of dues for a
period of three (3) months from the beginning of the fiscal year or period for
which such dues become payable, the membership may thereupon be terminated by
the Board of Directors in the manner provided in Article III of these
Bylaws. The Board of Directors may establish a late payment penalty
whenever a member fails to pay dues by the 15th day of February of each
year.
ARTICLE XII -
INDEMNIFICATION
12.01
Indemnification.
A.
The corporation may indemnify a person who
was, is, or is threatened to be made a named defendant or respondent in a
proceeding because the person is or was a director, officer, member, employee
or agent of the corporation only if it is determined in accordance with
paragraph E of this Section 12.01 that the person:
(1) conducted himself or herself in good faith;
(2) reasonably believed;
(a) in the case of conduct in his or her official capacity as a
director, officer, member or employee of the corporation, that his or her
conduct was in the corporation’s best interest; and
(b) in all other cases, that the conduct was not opposed to the
corporation’s best interests; and
(3) in the case of any criminal proceeding, the officer,
director, member, employee or agent had no reasonable cause to believe the
conduct was unlawful.
B.
Except to the extent permitted by
paragraph D of this Section 12.01, a director, officer, member, employee or
agent may not be indemnified under paragraph A of this Section with respect to
a proceeding:
(1) in
which the person is found liable on the basis that personal benefit was
improperly received by the party, whether or not the benefit resulted from an
action taken in the person's official capacity; or
(2) in which the person is found liable to the corporation.
C.
The termination of a proceeding by judgment, order, settlement, or conviction,
or on a plea of nolo contendre
or its equivalent is not of itself determinative that the person did not meet
the requirements set forth in paragraph A of this Section 12.01. A person
shall be deemed to have been found liable with respect to any claim, issue or
matter only after the person shall have been so adjudged by a court of
competent jurisdiction after exhaustion of all appeals there from.
D.
A person may be indemnified under paragraph A of this Section 12.01 against
judgments, penalties (including excise and similar taxes), fines, settlements,
and reasonable expenses actually incurred by the person in connection
with the proceeding; but if the person is found liable to the corporation or is
found liable on the basis that personal benefit was improperly received by the
person, the indemnification:
(1) is
limited to reasonable expenses actually incurred by the person in connection
with the proceeding; and
(2) shall not be made with respect to any proceeding in which
the person shall have been found liable for willful or intentional misconduct
in the performance of the person’s duty to the corporation.
E.
A determination of indemnification
under paragraph A of this section 12.01 must be made:
(1) by a majority vote of a quorum consisting of directors who
at the time of the vote are not named defendants or respondents in the
proceeding;
(2) if
such quorum cannot be obtained, by a majority vote of a committee of the board
of directors, designated to act in the matter by a majority vote of all
directors, consisting solely of two or more directors who at the time of the
vote are not named defendants or respondents in the proceeding;
(3) by
special legal counsel selected by the board of directors or selected by a
committee of the board by vote as set forth in subparagraph (1) or (2) of this
Section 12.01 E., or, if such a quorum cannot be obtained and such a committee
cannot be established, by a majority vote of all directors; or
(4)
by the members in
a vote that excludes the shares held by directors who are named defendants or
respondents in the proceeding.
F. Authorization of indemnification and determination as to
reasonableness of expenses must be made in the same manner as the determination
that indemnification is permissible, except that if the determination that
indemnification is permissible is made by special legal counsel, authorization
of indemnification and determination as to reasonableness of expenses must be
made in the manner specified by subparagraph (3) of Section 12.01 E. for the
selection of special legal counsel.
G. The corporation shall indemnify a director, officer,
member, employee or agent against reasonable expenses incurred by the person in
connection with a proceeding in which the person is a party because the person
is a director, officer, member, employee or agent, if such person has been
wholly successful, on the merits or otherwise, in the defense of the
proceeding.
H. Reasonable expenses incurred by a director, officer, member,
employee or agent who was, is, or is threatened to be made a named defendant or
respondent in a proceeding may be paid or reimbursed by the corporation, in
advance of the final disposition of the proceeding and without any of the
determinations specified in paragraphs E and F of this Section 12.01, after the
corporation receives a written affirmation by the person of their good faith
belief that the standard of conduct necessary for indemnification under this
Section 12.01 has been met and the director, officer, member, employee or agent
agrees to repay the amount paid or reimbursed if it is ultimately determined
that the person has not met those requirements.
I. Notwithstanding any other provision of this section 12.01,
the corporation may pay or reimburse expenses incurred by a director, officer,
member, employee or agent in connection with the person’s appearance as a
witness or other participation in a proceeding at a time when the person is not
a named defendant or respondent in the proceeding.
J. The corporation may purchase and maintain insurance or
another arrangement on behalf of any person who is or was a director, officer,
member, employee or agent of the corporation or who is or was serving at the
request of the corporation as a director, officer, member, employee, agent, or
similar functionary against any liability asserted against the person and
incurred by the person in such a capacity or arising out of the status as such
a person, whether or not the corporation would have the power to indemnify the
person against that liability under this Section 12.01. If the insurance
or other arrangement is with a person or entity that is not regularly engaged
in the business of providing insurance coverage, the insurance or arrangement
may provide for payment of a liability with respect to which the corporation
would not have the power to indemnify the person only if including coverage for
the additional liability has been approved by the members of the corporation.
Without limiting the power of the corporation to procure or maintain any kind
of insurance or other arrangement, a corporation may, for the benefit of
persons indemnified by the corporation:
(1)
create a trust fund;
(2)
establish any form of self-insurance;
(3)
secure its
indemnity obligation by grant of a security interest or other lien on the
assets of the corporation; or
(4)
establish a
letter of credit, guaranty, or surety arrangement.
The insurance or other arrangement may be procured,
maintained, or established within the corporation or with any insurer or other
person deemed appropriate by the board of directors regardless of whether all
or part of the stock or other securities of the insurer or other person are owned
in whole or part by the corporation. In the absence of fraud, the
judgment of the board of directors as to the terms and conditions of the
insurance or other arrangement and the identity of the insurer or other person
participating in an arrangement shall be conclusive and the insurance or
arrangement shall not be voidable and shall not
subject the directors approving the insurance or arrangement to liability, on
any ground, regardless of whether directors participating in the approval are
beneficiaries of the insurance or arrangement.
K. Any indemnification of or advance of expenses to a director,
officer, member, employee or agent in accordance with this Section 12.01 shall
be reported in writing to the members with or before the notice or waiver of
notice of the next members' meeting or with or before the next submission to
members of a consent to action without a meeting pursuant to Article 9.10 of
the Texas Non-Profit Corporation Act and, in any case, within the twelve (12)
month period immediately following the date of indemnification or advance.
L. As used in these Bylaws, the following terms have the
meanings set forth below:
(1)
“Corporation” includes any domestic or
foreign predecessor entity of the corporation in a merger, consolidation, or
other action in which the liabilities of the predecessor are transferred to the
corporation by operation of law and in any other transaction in which the
corporation assumes the liabilities of the predecessor but does not
specifically exclude liabilities that are the subject matter of this Section
12.01.
(2)
“Director, officer, employee or agent”
means any person who is or was a director, officer, employee or agent of the
corporation and any person who, while a director, officer, employee or agent of
the corporation, is or was serving at the request of the corporation as a
director, officer, employee, agent, or similar functionary.
(3)
“Expenses” include court costs and attorneys’ fees.
(4)
“Official capacity” means:
(a)
when used with respect to a director,
officer or member, the office of the person acting in accordance with
furtherance of the corporation’s purpose; and
(b)
when used with respect to a person other
than a director, officer or member, the elective or appointive office in the
corporation held by the person or the employment or agency relationship
undertaken by the person in behalf of the corporation but in each case does not
include service for any other foreign or domestic corporation or any
partnership, joint venture, sole proprietorship, trust, employee benefit plan,
or other enterprise.
(5)
“Proceeding” means any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative, arbitrative, or investigative, any appeal in such an action,
suit, or proceeding, and any inquiry or investigation that could lead to such
an action, suit, or proceeding.
12.02 Other
Indemnification. The foregoing rights of indemnification and
reimbursement shall not be exclusive of any other right to which any such
person may be entitled by law, bylaw, agreement, member’s
vote or otherwise.
ARTICLE XIII - TELEPHONE OR VIDEO CONFERENCE MEETINGS
13.01 Subject to
the requirements of the Texas Non-Profit Corporation Act, as amended, or these
Bylaws for notice of meetings, members of the corporation, members of the Board
of Directors, or members of any committee designated by the President or Board
of Directors may participate in and hold a meeting of such members, Board or
committee by means of a conference telephone or similar’ communication
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this Section 13.01 shall
constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE XIV -
WAIVER OF NOTICE
14.01 Whenever any
notice is required to be given under the provisions of the Texas Non-Profit
Corporation Act or under the provisions of the Articles of Incorporation or the
Bylaws of the corporation, a waiver thereof in writing signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
ARTICLE XV - AMENDMENTS TO BYLAWS
15.01 These Bylaws may
be altered, amended or repealed and new Bylaws may be adopted:
A.
By letter ballot by two-thirds vote of the
voting members returning ballots, provided that at least 25% of the voting
members return such letter ballot within 15 days of its mailing;
or
B.
By vote of two-thirds of the voting
membership present, either in person or by proxy, at the annual meeting or any
meeting called for that purpose, provided that the notice of the proposed
change or amendment was submitted in writing, at least twenty (20) days in
advance of such meeting.
ARTICLE XVI - DISSOLUTION
16.01 In the event of dissolution of the corporation:
A. No part of the funds or
property of the corporation shall ever accrue to the private benefit of any
member.
B. After payment of all
indebtedness, any surplus funds and property, upon dissolution, shall be
transferred to a non-profit organization with tax-exempt status under the then
existing provisions of the Internal Revenue Code.