A California Nonprofit Mutual Benefit Corporation Effective February 6, 2015
NAME AND DEFINITIONS
The name of this nonprofit mutual benefit Company is Ruby Together.
“Board” means the board of directors of the Company.
“Articles” means the Articles of Incorporation of the Company filed with the Secretary of State of the State of California on February 6, 2015.
“Code” means the Internal Revenue Code of 1986, as amended, or the corresponding section of any future federal tax code.
“Conflict of Interest Policy” means the policy adopted by the Board substantially in the form attached as Appendix A, as may be amended from time to time.
“Company” means Ruby Together, its successors and assigns.
“Director” means a member of the Board, as determined by the Articles and these bylaws.
“Incorporator” means the incorporator of the Company as set forth in the Articles.
“Initial Director” means an initial member of the Board, as determined by these bylaws.
“Members” means the members of the Company, as determined by the Articles and these bylaws.
ARTICLE 2 OFFICES
The principal office of the Company shall be located at 548 Market St #79434; San Francisco, CA 94104-5401. The Board may from time to time change the principal office of the Company upon notice to the Members.
2.2 Other Offices
The Company may also have offices at such other places, within or without its state of incorporation, where it is qualified to do business, as its business and activities may require, and as the Board may designate from time to time.
ARTICLE 3 PURPOSES AND POWERS
The purposes for which the Company is formed are as set forth in the Articles and include maintaining and developing the Ruby open-source programming language and other Ruby-based open-source software in order to serve and benefit technology companies that use and rely on the Ruby programming language in their businesses.
3.2 Nonprofit Purposes
3.2.1 Limitation on Activities. Notwithstanding any other provision of these bylaws, the Company shall not conduct or carry on any activities not permitted to be conducted or carried on by an organization exempt under Section 501(c)(6) of Code and Section 23701e of the California Revenue and Taxation Code, or corresponding provisions of any subsequent statutes.
3.2.2 Prohibition Against Private Inurement. No part of the assets or net earnings of the Company shall inure to the benefit of or be distributable to its directors, officers, or other private persons, except that the Company shall be authorized and empowered to pay reasonable compensation for services actually rendered and to make payments and distributions in furtherance of the purposes and objects set forth in this Article 3 hereof.
The duration of the Company shall be perpetual, but may be dissolved at any time upon a 2/3rds majority vote of all then-current Directors.
3.4 Governing Instruments
The Company shall be governed by the Articles and these bylaws.
ARTICLE 4 BOARD OF DIRECTORS
4.1 Role, Size, and Compensation of the Board
4.1.1 Board Role. The Board shall control and manage the affairs and operations of the Company and shall exercise all the powers that may be exercised by the Company, subject to the Articles, these bylaws, and applicable law. The Board may delegate responsibility of day-to-day operations of the Company to the officers, staff, and committees of the Company.
4.1.2 Board Size. The Board shall from time to time fix the number of Directors constituting the entire Board, which shall not be less than 3. No decrease in the number of Directors shall have the effect of shortening the term of any incumbent Director. To
the extent permitted by law, the number of Director positions set by these bylaws for purposes of calculating the Directors necessary for a quorum under state law shall be the number of directors fixed by the Board.
4.1.3 Director Compensation. The Directors shall receive no compensation for carrying out their duties as directors, other than reimbursement of reasonable expenses. Directors may receive compensation for services provided to the Company, provided such compensation is fair to the Company, is reviewed and approved in accordance with the Conflict of Interest Policy, and is permitted by applicable law.
4.2 Board Duties
It shall be the duty of the Directors to:
4.2.1 perform any and all duties imposed on them collectively or individually by the Articles, these bylaws, and applicable law;
4.2.2 appoint and remove, employ and discharge, and, except as otherwise provided in these bylaws, prescribe the duties and fix the compensation, if any, of all officers, agents, and employees of the Company;
4.2.3 supervise all officers, agents, and employees of the Company to assure that their duties are performed properly;
4.2.4 meet at such times and places as required by these bylaws;
4.2.5 register their addresses with the Secretary;
4.2.6 establish, charter, and disband committees, as appropriate to conduct the work of the Company;
4.2.7 considerforapprovalorrejectionanypublic statement, press release or similar public materials concerning the business of the Company prior to making such materials public;
4.2.8 consider for approval or rejection the Company’s annual budget. If the annual budget is not approved at the start of each calendar year, the Company shall operate based on the prior annual budget, to the extent practical, until an annual budget is approved;
4.2.9 establish annual dues for Members;
4.2.10 make a yearly evaluation of the Company’s fulfillment of its purposes;
4.2.11 develop and from time to time revise an agreement governing the admission of Members (“Membership Agreement”) and establish or revise the rights and privileges of Members; and
4.2.12 such other duties as are customary for the Board of an organization exempt under Section 501(c)(6) of Code.
4.3 Election; Term of Office
4.3.1 Initial Directors. The Incorporator shall appoint by written resolution the Initial Directors and indicate the final year of each initial term of the Initial Directors in such resolution. Each Initial Director shall hold office for the initial term until the regular, annual meeting of the Board in the final year of such Director’s initial term, and until such Initial Director’s successor has been elected and qualified, or until his or her death, resignation, or removal.
4.3.2 Eligibility. Except for the Initial Directors, each Director must be an Individual Member or a Member that is an employee of a Corporate Member and have demonstrated a commitment to the purposes and activities of the Company prior to nomination. Corporate Members may have no more than 1 employee serve on the Board at any given time.
4.3.3 Nomination. Individual Members wishing to be nominated and Corporate Members wishing to nominate an employee must provide written notice to the Board no later than 60 days prior to the
annual Members meeting at which the applicable election will take place. The Board shall nominate no more than 12 candidates seeking board membership in any given election. In nominating candidates for Director positions and in choosing the number of candidates to nominate overall, the Board shall use reasonable efforts to to maintain a Board composition consisting of at least: (a) 28% female Directors, (b) 28% non-Caucasian Directors, and (c) 14% from any categor(ies) of persons (e.g., race, gender, ability) commonly considered to have suffered from discrimination at some time and then-currently under-represented in the technology industry, in each case as determined by the Board in its reasonable discretion.
4.3.4 Election. At such time as all nominees for the Directors are known, but in no event later than the date specified for notice of the Annual Members Meeting as set forth in Section 6.9.4, below, the Board shall provide each Member with a list of all Board nominees. Voting for the election of Directors shall be exclusively by written ballot completed at the time of the Annual Members Meeting. Each Member may cast 1 vote per candidate, and may vote for as many candidates as the number of candidates to be elected to the new Board. The candidates receiving the highest number of votes shall be elected, up to the number of Directors to be elected.
In the event of a tie between 2 or more individuals seeking election to the Board, the existing Directors who are not otherwise tied for re-election to the Board shall, via majority vote, break any and all ties in the election of the new Director positions.
4.3.5 Term of Office. Directors shall serve 3-year terms, except that the initial term of the Initial Directors shall end as set forth in the Incorporator’s resolution described in Section 4.3.1. Directors’ terms may be extended until a successor has been elected or appointed. Each Director’s term of office shall begin upon the adjournment of the Annual Members Meeting at which elected (except where appointed to fill a vacancy or elected by the Board in a tie vote) and shall end upon the adjournment of the Annual Members Meeting during which a successor is elected. Director terms shall be staggered so that approximately one-third the number of Directors will end their terms in any given year. Directors may serve an unlimited number of terms in succession.
18.104.22.168 Vacancies on the Board shall exist whenever: (a) the number of authorized Directors is increased, (b) a Director resigns from the Board;
(c) a Director resigns from or is terminated from employment by an appointing Corporate Member employing the Director at the time of the Director’s election; and (d) a Director’s Corporate Member organization terminates its membership in the Company.
22.214.171.124 If the Member or Members who have the right under this Section 4.3 to appoint a replacement Director to the Board fails to appoint such Director within the prescribed time period, or if the vacancy has occurred because the Corporate Member employing the Director has terminated its membership in the Company, the vacancy may be filled by approval of a majority of the Directors then in office or by a sole remaining Director. A person elected to fill a vacancy on the Board shall hold office until the next election of the Board or until his or her death, resignation, or removal from office.
126.96.36.199 In the event that 2 or more Corporate Members are merged or a Corporate Member is acquired by another Corporate Member organization, the resulting or acquiring Corporate Member shall designate which of its appointed Directors (if any) is to remain on the Board and the other Director or Directors will be removed from the Board immediately upon the closing of the merger or acquisition.
4.3.7 Removal.Directorsmayberemovedfrom office, with or without cause, as permitted by and in accordance with the laws of the State of California. Removal of a Director without cause shall require a unanimous vote of all Directors except for the Director being considered for removal.
4.3.8 Resignation. Any Director may resign effective upon delivering written notice to the Board, unless the notice specifies a later time for the effectiveness of such resignation. Board acceptance of the resignation, unless required by its terms, shall not be necessary to make the resignation effective. A Corporate Member employing the resigning Director may replace that Director with another employee by providing the Board with written notice of the same within 30 days after the effective date of the Director’s resignation. Except as otherwise herein provided, a Director shall be conclusively deemed to resign if the Director’s employment with an appointing Corporate Member organization is for any reason terminated.
4.4 Meetings; Notice
4.4.1 Regular Meetings. The Board shall meet to conduct any proper business of the Company at least 1 time per year (such annual meeting, the “Annual Board Meeting”), as soon as practical following the election of new Directors in conjunction with the Annual Members Meeting. The Board shall determine the places, dates, and times of Annual Board Meetings. The Board shall elect Officers at the Annual Board Meeting.
4.4.2 Special Meetings. Special meetings of the Board may be called by the President or by a majority of then-current Directors.
4.4.3 Quorum. 2/3rds of Directors in office immediately before a meeting shall constitute a quorum for the transaction of Company business at that meeting. In the absence of a quorum, a majority of the Directors present may adjourn the meeting and/or reschedule the meeting for a date certain; notice of such rescheduled meeting shall be given in accordance with these bylaws.
4.4.4 Voting; Proxies. The vote of a majority of the Directors shall be the act of the Board unless a greater vote is required by the Articles, these bylaws, or applicable law. Each Director shall have one vote at all Board meetings. The President, if also a Director, shall have an additional vote only as necessary to break tie votes. Each Director may vote in person or by proxy executed in writing by the Director.
4.4.5 Conduct. The Secretary shall act as secretary of all meetings of the Board, provided that, in his or her absence, the presiding officer shall appoint another person to act as Secretary of the Meeting.
4.4.6 Proxies. To the extent permitted by applicable law, a Director may designate another Director or an alternate representative from the same Corporate Member to attend a Board meeting and vote in place of said absent Director pursuant to a proxy signed by said Director.
4.4.7 Procedures.Meetingsshallbegovernedby such procedures as may be approved from time to time by the Board, insofar as such rules are not inconsistent with or in conflict with the Articles, these bylaws, or applicable law.
4.4.8 Telephonic Participation. Directors may participate in a meeting through use of teleconference, videoconference, or similar communications, so long as all people participating in such meeting can hear one another at the same time. Participation by such means shall constitute presence in person at such meeting.
4.4.9 Adjournment. The Board shall adjourn meetings upon the majority vote of the Directors present at such meeting.
4.4.10 Notice. No notice of Annual Board Meetings is required. The Board shall provide written notice
of the place, date, time, and purpose(s) of special meetings with at least 48-hour notice as required by the California Nonprofit Mutual Benefit Company Law. The Board shall deliver notice personally, by mail (to the recipient’s address as it appears on the books of the Company), by e-mail (to the recipient’s e-mail address as it appears on the books of the Company), or by any other method permitted by applicable law.
4.4.11 Waiver of Notice. Directors may waive the notice requirement for any meeting, in accordance with applicable law. A Director shall be deemed to have waived the notice requirement for any meeting at which the Director is present, unless the Director attends 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.
4.5 Informal Board Action
The Directors may take any action required or permitted to be taken by the Board (or any committee thereof) without a meeting if all Directors (or any such committee) consent in writing to the adoption of a resolution authorizing the action. The Secretary shall file the resolution and the written consents thereto by the Directors (or any such committee) with the minutes of the proceedings of the Board (or any such committee).
The Board may establish committees consisting of three or more Directors each to serve at the pleasure of the Board, and each of which shall have the authority of the Board as provided in the applicable establishing resolution. The Board may designate one or more Directors as alternate members of any such committee, who may replace any absent member or members at any meeting of such committee.
4.7 Nonliability of Directors
To the extent permissible by applicable law, Directors shall not be personally liable for the debts, liabilities, or other obligations of the Company.
ARTICLE 5 OFFICERS
5.1 Number of Officers; Powers and Duties; Compensation
5.1.1 Number of Officers. The officers of the Company (“Officers”) shall consist of a President and a Secretary, and upon appointment by the Board, a Treasurer, one or more Vice-Presidents, and such other officers as the Board deems expedient for the proper conduct of the business of the Company. Each Officer shall have such authority and shall perform such duties as the Board may determine.
5.1.2 Powers and Duties. Officers shall have the authority and shall perform the duties set forth in these bylaws, established by resolution of the Board, or as directed by an Officer authorized by the Board to prescribe the authority and duties of other Officers.
188.8.131.52 PowersandDutiesofthePresident.The President shall be the Chief Executive Officer of the Company. The President shall from time to time make such reports of the affairs and operations of the Company as the Board may direct and shall preside at all meetings of the Board. The President shall have such other powers and shall perform such other duties as may from time to time be assigned to the President by the Board.
184.108.40.206 Powers and Duties of the Vice-Presidents. Each of the Vice-Presidents, if any, shall have such powers and shall perform such duties as may from time to time be assigned to any such Vice-President by the Board.
220.127.116.11 Powers and Duties of the Secretary. The Secretary shall record and keep the minutes of all meetings of the Board. The Secretary shall be the custodian of, and shall make or cause to be made the proper entries in, the minute book of the Company and such books and records as the Board may direct. The Secretary shall be the custodian of the seal of the Company, if any, and shall affix such seal to such contracts, instruments, and other documents as the Board or any committee thereof may direct. The Secretary shall have such other powers and shall perform such other duties as may from time to time be assigned to the Secretary by the Board.
18.104.22.168 Powers and Duties of the Treasurer. The Treasurer, if any, shall be the custodian of all funds and securities of the Company. Whenever so directed by the Board, the Treasurer shall render a statement of the cash and other accounts of the Company, and the Treasurer shall cause to be entered regularly in the books and records of the Company to be kept for such purpose full and accurate accounts of the Company’s receipts and disbursements. The Treasurer shall make reasonably available the books and accounts to any Director upon request. The Treasurer shall have such other powers and shall perform such other duties as may from time to time be assigned to the Treasurer by the Board.
5.1.3 Delegation. In case of the absence of any Officer of the Company, or for any other reason that the Board may deem sufficient, the Board may at any time delegate all or any part of the powers or duties of any Officer to any other Officer or to any Director or Directors.
5.1.4 Officer Compensation, Generally. Except as specifically provided otherwise in Section 5.1.5 below, the Officers shall receive no compensation for carrying out their duties as officers, other than reimbursement of reasonable expenses. Officers may receive compensation for professional services provided to the Company, provided such compensation is fair to the Company, is reviewed and approved in accordance with the Conflict of Interest Policy, and is permitted by applicable law.
5.1.5 Approved Officer Compensation; Employee Status. The Board may establish by resolution that an Officer be entitled to receive compensation for their services as an Officer from the Company; provided, however, that the Company shall not pay any unreasonable compensation or make unreasonable payments to any person, and all compensation and other payments to all persons shall conform to the requirements of the Company’s tax-exempt status. Officers that are entitled to receive compensation in accordance with this Section 5.1.5 shall be employees of the Company.
5.2 Election; Term of Office
5.2.1 Term of Office. The President shall have a 3- year term, the Secretary shall have a 1-year term, and the term for all other Officers shall be established by the Board at the time such other Officer position is established, which terms may in each case be extended until a successor has been elected or appointed.
5.2.2 Election; Eligibility. At the Annual Board Meeting, the Board shall elect the Officers to replace those whose terms are due to expire at the end of such regular, annual meeting. Only Directors shall be eligible to serve as Officers. Each Officer’s term of office shall begin upon the adjournment of the Board meeting at which elected (except where appointed to fill a vacancy in an Officer position) and shall end upon the adjournment of the Board meeting during which a successor is elected. The same person may hold more than one office, except that the same person may not be both President and Secretary.
5.2.3 Initial Officers. The Incorporator shall appoint by written resolution the initial Officers. Each initial Officer shall hold office for the initial
term until the Annual Board Meeting in the final year of such Officer’s initial term, and until such initial Officer’s successor has been elected, or until his or her death, resignation, or removal.
5.2.4 Vacancies. At any time, the Board may fill vacancies caused by the resignation, death, or removal of an Officer or may appoint a new Officer.
5.2.5 Removal.TheBoardmayremoveanyOfficer from office at any time, with or without cause.
5.2.6 Resignation. Any Officer may resign from office at any time by delivering a resignation in writing to the Board, and the acceptance of the resignation, unless required by its terms, shall not be necessary to make the resignation effective.
ARTICLE 6 MEMBERS
6.1 Determination and Rights of Members
The Company shall have Members. No Member shall hold more than one 1 membership in the Company. The Board shall establish from time to time by resolution the rights, privileges, restrictions, conditions, and classifications of the Members, subject to the Articles, these bylaws, and applicable law. Initially, the Company shall have 2 Member classes: (1) a class of Members consisting of individuals (“Individual Members”), and (2) a class of Members consisting of businesses (“Corporate Members”).
With the exception of the right to vote on the election of the Board, all other matters put forward to a vote of the Members shall be advisory in nature and not binding upon the Company or the Board, unless adopted by resolution of the Board.
6.2 Qualification for Membership
Member status may be held by any individual, for- profit Company, nonprofit Company, government organization, educational institution, or other enterprise supportive of this Company’s purposes and not otherwise prohibited by applicable law from abiding by the terms of these bylaws.
Applicants qualified under Section 6.2 above shall be admitted to membership upon affirmation of the Articles and these bylaws; the execution of a Membership Agreement; and payment of the applicable annual dues as specified on the Membership Agreement.
6.4 Fees and Dues
The Board shall establish and may change from time to time: the amount of annual dues payable to the Company by each class of Members, acceptable methods of payments, and permitted frequency of payments, all of which shall be set forth on the current Membership Application. If any Member is delinquent in the payment of dues, such Member’s rights shall be deemed suspended upon written notice from the Company until all delinquent dues are paid.
6.5 Number of Members
There is no limit on the number of Members the Company may admit.
6.6 Membership Roll
The Company shall keep a membership roll containing the name and address, including e-mail address, of each Member, the date upon which the applicant became a Member, and the name of 1 individual from each Corporate Member who shall serve as a primary contact for the Corporate Member, receive all correspondence and information, distribute this information within his or her organization, and vote on all issues submitted to a vote of the Members. Termination of the membership of any Member shall be recorded in the roll, together with the date of termination of such membership. Membership in the Company is a
matter of public record; however, membership lists will not be sold or otherwise be made available to third parties.
6.7 Nonliability of Members
No Member of this Company shall be, as such, individually liable for the debts, liabilities, or other obligations of the Company.
6.8 Nontransferability of Memberships
All rights of membership cease upon the Member’s dissolution. No membership may be assigned without the prior written consent of the Company, and any purported assignment without such written approval shall be null and void.
6.9.1 Regular Meetings. The Members shall meet 1 time per year (such annual meeting, the “Annual Members Meeting”) for the purpose of conducting the election of the Board and transacting other business as may come before the meeting. The Board shall designate by resolution the place and time of each Annual Members Meeting. At the discretion of the Board, any Annual Members Meeting may be held in person or by any combination of teleconference, videoconference, or similar communication medium, or any other means permitted by applicable law.
6.9.2 Special Meetings. Special Meetings of the Members for any purpose shall be called by the Board, or by written request of 3/4 of the Members.
6.9.3 Notice of Meetings. The Company shall provide notice stating the place, day, and time of the Annual Members Meeting not less than 60 days in advance thereof, except as otherwise required by the Articles, these bylaws, or applicable law. In the case of a special meeting, notice, specifying the purpose or purposes for which the meeting is called, shall be provided not less than 14 calendar days before the date of the meeting.
The primary means for the provision of notice shall be via e-mail to the Member at the e-mail address as it appears on the records of the Company, provided that the Member to be contacted shall acknowledge personal receipt of the e-mail by a return e-mail or telephone call within 3 business days of the first notification. If notification is provided by mail, such notice shall be deemed to be delivered when deposited in the mail addressed to the recipient at his or her address as it appears on the records of the Company, with postage prepaid.
Whenever any notice of a meeting is required to be given to any Member under provisions of the Articles, these bylaws, or applicable law, a waiver of notice in writing signed by the Member, whether before or after the time of the meeting, shall be equivalent to the giving of such notice.
6.9.4 Quorum. Those Members present at a properly noticed meeting of the Members shall constitute a quorum.
6.9.5 Membership Action. Every act or decision done or made by a majority of Members present in person at a duly held meeting at which a quorum is required is the act of the Members.
6.9.6 Action by Written Ballot. Except as otherwise provided under the Articles, these bylaws, or applicable law, any action which may be taken at any regular or special meeting of Members may be taken without a meeting or in conjunction with a meeting if the Company distributes a written ballot to each Member entitled to a vote a ballot setting forth: (1) the proposed action; (2) a provision providing an opportunity to select individuals or specify approval or disapproval of each proposal, as appropriate; (3) the number of responses needed and the percentage of approvals necessary to pass the measure submitted; and (4) the date by which the ballot must be received by the Company in order to be counted. The date set shall afford Members a reasonable time within which to return the ballots to the Company.
Ballots shall be mailed or delivered in the manner required for giving notice of membership meetings as specified in these bylaws.
Approval of action by written ballot shall be valid only when the number of votes cast by ballot within the time period specified equals or exceeds the quorum, if required to be present at a meeting authorizing the action, and the number of approvals equals or exceeds the number of votes that would be required to approve the action at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot.
6.9.7 ConductofMeetings.MeetingsofMembers shall be presided over by the President or, in his or her absence, by a Vice President or, in the absence of all of these persons, by a chairperson designated by the Board, or in the absence of a timely designation by the Board, by a majority of the Members present. The Secretary shall act as Secretary of all meetings of Members, provided that, in his or her absence, the presiding officer shall appoint another person to act as Secretary of the Meeting.
Meetings shall be governed by such procedures as may be approved from time to time by the Board, insofar as such rules are not inconsistent with or in conflict with the Articles, these bylaws, or applicable law.
6.10 Termination of Membership
A Member’s membership shall terminate upon the occurrence of any of the following events:
6.10.1 Upon a failure to initiate or renew membership by paying dues on or before their due date, such termination to be effective 30 days after a written notification of delinquency is given personally or mailed to such Member by the Secretary of the Company. A Member may avoid such termination by paying the amount of delinquent dues within a 30 day period following
the Member’s receipt of the written notification of delinquency.
6.10.2 Upon 15 calendar days’ written notice from the Member.
6.10.3 Upon unanimous vote of all disinterested Directors when such Directors determine, after affording the Member in question the right to be heard on the issue, that the Member has violated the policies, procedures and duties of Membership herein.
6.10.4 Upon a Corporate Member’s dissolution.
6.10.5 Upon a breach of any confidentiality and/or
nondisclosure agreement within the Company by a Member.
6.10.6 In the event that 2 or more Corporate Members are merged or a Corporate Member is acquired by another Corporate Member, the resulting entity shall have only 1 membership and 1 vote in all Member votes thereafter. The former voting Member may, however, upon written notice to the Board, be permitted to continue attendance at Meetings on a nonvoting basis and be provided with notices thereof.
All rights of a Member in the Company shall cease on termination of membership as herein provided. A Member terminated from the Company shall not receive any refund of dues already paid for the current dues period.
BANK ACCOUNTS; CHECKS; INVESTMENTS; CONTRACTS
7.1 Bank Accounts; Checks
The Board shall select the banks or depositories it deems proper for the funds of the Company. The Board shall determine who shall be authorized to sign checks, drafts, or other orders for the payment of money, acceptances, notes, or other evidences of
indebtedness, on the Company’s behalf.
The Company may retain its funds in whole or in part in cash or invest and reinvest such funds from time to time in such property, real, personal, or otherwise, or stocks, bonds, or other securities, as the Board may deem desirable.
The Board may authorize any Officer(s) or agent(s), in addition to those specified in these bylaws, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Company, and such authority may be general or confined to specific instances. Unless so authorized by the Board, no Officer, agent, or employee shall have any power or authority to bind the Company by any contract or engagement or to pledge its credit or render it liable for any purpose or to any amount.
ARTICLE 8 INDEMNIFICATION
8.1 Mandatory Indemnification
The Company agrees to indemnify each of its current and former: Directors, Officers, employees, and agents (the “Indemnitees”) from and against, and to reimburse the Indemnitees for, any and all judgments, fines, liabilities, amounts paid in settlement, and reasonable expenses, including attorneys’ fees, as a result of or in connection with any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, other than one by or in the right of the Company or affiliate of the Company to procure a judgment in its favor, arising by reason of the fact that the Indemnitee is, was, or at any time becomes a Director, Officer, employee, or agent of the Company; provided, however, that no indemnity pursuant to this Article 8 shall be paid by the Company: (i) if a judgment or other final adjudication establishes that the Indemnitee’s acts were committed in bad faith or were the result of active and deliberate dishonesty or fraud, or that the Indemnitee personally gained in fact a financial profit or other advantage to which the Indemnitee was not legally entitled; or (ii) if a final judgment by a court having jurisdiction in the matter shall determine that such indemnification is not lawful. The termination of any such civil or criminal action or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create any presumption that the Indemnitee acted in bad faith and/or was dishonest or fraudulent.
8.2 Advancement of Expenses
The Company may pay expenses incurred in defending an action, suit, or proceeding in advance of the final disposition of such action, suit, or proceeding, as authorized by the Board in the specific case, upon receipt of: (a) a written affirmation from the Indemnitee of his or her good faith belief that he or she is entitled to indemnification under this Article 8, and (b) an undertaking by or on behalf of the Indemnitee to repay such amount, unless it shall ultimately be determined that he or she is entitled to indemnification under this Article 8.
8.3 Required Consents
Notwithstanding anything in these bylaws to the contrary, the Company shall not be liable to indemnify an Indemnitee under this Article 8 for any amounts paid in settlement of any action or claim effected without the prior written consent of the Company. The Company shall not settle any action or claim in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s prior written consent. Neither the Company nor any Indemnitee will unreasonably withhold their consent to any proposed settlement.
8.4 Limitation on Amendment
No amendment, modification, or rescission of this Article 8 shall be effective to limit any Indemnitee’s right to indemnification with respect to any alleged cause of action that accrues or other incident or matter that occurs prior to the date on which such modification, amendment, or rescission is adopted.
ARTICLE 9 DISSOLUTION
The Company may be dissolved only pursuant to a plan of dissolution and distribution of assets adopted by the Board that is consistent with the Articles, these bylaws, and applicable law (including US federal income tax laws).
ARTICLE 10 MISCELLANEOUS
10.1 Books and Records
The Company shall keep correct and complete books and records of account and shall keep minutes of the proceedings of all Board meetings, a record of all actions taken by the Board without a meeting, and a record of all actions taken by committees of the Board. In addition, the Company shall keep a copy of the Articles and these bylaws as amended to date.
10.2 Conflicts of Interest
The Board shall adopt the Conflict of Interest Policy. The Board may periodically review and revise the Conflict of Interest Policy.
10.3 Fiscal Year
The fiscal year of the Company shall be from January 1 to December 31 of each year.
10.4 Corporate Seal
The Board may adopt by resolution a form of corporate seal for the Company.
These bylaws may be amended, altered, repealed, or restated only by a majority vote of Directors then in office at a Board meeting; provided, however, that: (a) no amendment shall be made to these bylaws which would cause the Company to cease to qualify as an exempt Company under section 501(c)(6) of the Code, or the corresponding section of any future federal tax code, (b) an amendment affecting the voting rights of Directors requires ratification by a two-thirds vote of Directors then in office at a Board meeting, and (c) all amendments must be consistent with the Articles.
In the case of any conflict between the Articles and these bylaws, the Articles shall control.