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BY-LAWS
OF
ASSOCIATION OF PARCEL WORKERS OF
AMERICA
(a Delaware Non-stock Corporation)
* * * * * * * *
ARTICLE
I
OFFICES
SECTION 1.1
Principal Offices.
The principal executive office of the Association of Parcel Workers
of America (the “Association”) shall be located at 493 Stutts Road, Mooresville,
North Carolina,
28117.
The Registered Office of the Association in the State of
Delaware is located at
2711 Centerville Road, Suite 400, City of
Wilmington,
County of New Castle, Delaware, 19808.
The name of the registered agent of the Association is the
Corporation Service Company.
The registered office required
by the General Corporation Law of State of Delaware to be maintained
in the State of Delaware
may be changed from time to time by the Board of Directors.
SECTION 1.2
Other Offices.
The Association may also have offices at such other places both
within and without the State of
Delaware
as the board of Directors may from time to time determine or the
business of the Association may require.
ARTICLE
II
Purposes
SECTION 2.1
Nonprofit Purposes.
The affairs and activities of the Association shall be carried out
at all times for the purposes and in accordance with the terms set
forth in its Certificate of Incorporation and these Bylaws and in
conformity with all applicable provisions of the Internal Revenue
Code, as the same may be amended from time to time, and the
regulations pertinent thereto (the “Internal Revenue Code”),
affecting nonprofit organizations described in Section 501(c)(5)
thereof.
SECTION
2.2 Mission and Purpose. The
Association is a membership organization composed of non-management
United Parcel Service (UPS) or its affiliated companies' employees.
It is formed for the purpose
of protecting the pensions of all non-management employees and
insuring their fair and just treatment with respect to their
employment.
The purpose of the Association is to accomplish the following:
MISSION
STATEMENT
This
organization is SOLELY and EXCLUSIVELY for the benefit of any
employee of UPS or it’s affiliate(s).
Part
one
of the Association’s mission is that from this day forward the
Association will endeavor to create a new pension plan which meets
or exceeds the pensions that UPS Teamsters represented employees
have been promised from the 1st day of new employment
with the UPS. This new pension plan will never be merged with
or co-mingled with any other pension or retirement plan.
It is understood that the Association has no direct control over
assets now under the management of Central States and other
Teamsters’ funds and that if such funds cannot meet their
obligations, the Association will use its best efforts to assist
members in dealing with such funds.
Part two of the Association’s mission will be to insure that
UPS medical benefits are once again among the best employee medical
coverage programs in the country in terms of coverage, benefits and
costs, consistent with the recognition that medical costs are
escalating at an unprecedented rate.
Part three of the Association’s mission is to restore trust
and integrity on the part of those representing non-management
United Parcel Service (UPS) or its affiliated companies' employees.
The Association’s goal is to establish an organization whose sole
reason for existence is to serve its membership and represent their
interests by effectively dealing with United Parcel Service (UPS) or
its affiliated companies' management with respect to wage, hours and
working conditions in such a way as to protect and safeguard their
pensions, health care and other benefits which they have earned
through their hard work. The Association will provide its members
with fair and effective representation where honesty and integrity
are the norm and not the exception.
ARTICLE III
PURPOSE AND SCOPE
SECTION 3.1
Purpose and Scope.
The Association shall serve as the representative of non-management
United Parcel Service (UPS) or its affiliated companies’ employees
concerning wages, hours and working conditions.
The Association will not represent any employees other than
Employees of UPS or its affiliates’ non-management employees.
Its sole purpose is to represent and serve the workplace
interests of those it represents.
The Association will not engage in political activities, except to
the extent that such activity will directly benefit the interests of
its members. It will not support, financially or otherwise,
any political candidate. Its sole function is to protect and
benefit its members’ work related interests by giving voice to its
membership and by providing the fair and just representation they
have been seeking.
ARTICLE IV
MEMBERSHIP AND DUES
SECTION 4.1
Members.
The Members of the Association shall be those persons who are
non-management United Parcel Service (UPS) or its affiliated
companies’ employees who have paid a one-time Membership initiation
fee of $150.00 payable to
The Association as provided in this article as set froth in
4.3 below. Once a
bargaining unit is recognized, the initiation fees for that unit
only will be $225.00.
Part time employees will pay a $75.00 initiation fee regardless of
the representation status of their work unit.
SECTION
4.2
Application and Approval. Application for
membership shall be in writing on the form specified. Applications
with the appropriate membership initiation fee will be submitted to
the Secretary for review who shall consider whether the applicant
meets the requirements for membership. Applicants will be
notified in writing of the action of the Secretary accepting or
rejecting their application for membership.
SECTION
4.3 Membership/Initiation Fee. The initial one
time membership/initiation fee for new members of the Association
shall be one hundred and fifty dollars ($150.00). The
membership initiation fee will be waived for eligible non-management
United Parcel Service (UPS) or its affiliated companies' employees
who, prior to formation of the Association, made a contribution of
$150 to “It’s MY MAP,” which individuals will become full members,
subject to all other ongoing conditions of membership, including the
monthly dues requirement.
SECTION 4.4
Monthly Dues
From time to time the Board of Directors shall fix the dues schedule
for regular and part-time employees in accordance with the criteria
established by the Board; provided, however, a dues structure will
not be put in place until the Association has gained sufficient
support to file a petition with the NLRB or to seek recognition from
United Parcel Service (UPS) or its affiliated companies.
After six months of paying full dues, the member’s dues will
drop to one half (1/2) of the current dues assessed by the Teamsters
against its members at UPS or UPS affiliated companies.
SECTION 4.5
Resignation or Termination of Membership.
Any member may resign from the Association upon written notification
to the Secretary. No previously paid dues will be refunded in case
of such resignation. The name of any member in arrears on the
payments due for more than ninety (90) days shall be brought before
the Board for termination of membership. A majority vote of those
present and voting at a duly constituted meeting of the Board shall
be required for termination. The Board may, by two-thirds vote
of those present and voting at a duly constituted meeting thereof,
expel any member for conduct unbecoming a member or for conduct
prejudicial to the aims or reputation of the Association. Written
notice of the intended action shall be given to the member who shall
be afforded the opportunity to be heard before the Board prior to
the vote on such expulsion.
SECTION
4.6
Voting Entitlement of Members. Once elections
are scheduled in accordance with these By-Laws, each member of the
Association shall be entitled to vote for the Officers of the
Association and for the Regional Director representing their Region.
A member may not cast more than one vote for any candidate for
Officers or their Regional Director. The Members shall not have
voting rights for any other purpose.
SECTION 4.7
Right to Work.
In honor and recognition of an individual’s God given “right to
work,” United Parcel Service (UPS) or its affiliated companies'
employees will not be required to become a member of the
Association, pay an annual/initiation fee or pay dues or any other
payment to the Association as a condition of employment to hold a
job with UPS or its affiliated companies. Thus, membership in
and contributions to the Association are purely voluntary, only
earned by the Association through its good works.
ARTICLE V
ANNUAL MEETING OF MEMBERS
SECTION 5.1
Location.
The annual meeting of the Association’s members shall be held at
such place either within or without the State of
Delaware
as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting. Meetings of members
for any other purpose may be held at such time and place, within or
without the State of Delaware, as shall be
stated in the notice of the meeting or in a duly executed waiver of
notice thereof. If no other place is stated or fixed then
member meetings shall be held at the principal executive office of
the Association.
SECTION 5.2
Date.
Annual meetings of members, commencing with the year 2006, shall be
held at such date and time as shall be designated from time to time
by the Board of Directors and stated in the notice of the meeting.
SECTION 5.3
Notice.
Written or printed or e-mail notice of the annual meeting of members
stating the place, date and hour of the meeting shall be given to
the members not less than ten nor more than sixty days before the
date of the meeting.
SECTION 5.4
Membership List. The Secretary who has charge of the
membership list of the Association shall prepare and make a complete
list of the members entitled to vote arranged in alphabetical order,
and showing the address of each member at least one hundred twenty
days before voting. Such list shall be available for
examination by any member upon proper notice to the Secretary,
during ordinary business hours, under the rules established by the
Elections Committee. The list shall also be produced and be
available at the time and place of the annual meeting during the
whole time thereof, and may be inspected by any member who is
present.
ARTICLE
VI
OFFICERS OF THE ASSOCIATION
SECTION 6.1
Initial Officers.
Initially, the organization will be governed by its Officers
consisting of the following:
President
Van Skillman
Senior Vice President
Danny Eason
Vice President
---
Secretary
Van Skillman
Treasurer
Danny Eason
These Officers will also serve as the initial Executive Committee of
the organization and will appoint an additional 13 Regional
Directors who together with the officers will serve as the
organization’s initial board of directors. These 13 Regional
Directors will correspond to the 13 regions as reflected on
Attachment #1 hereto (hereinafter “Regions”) and each of these
Regional Directors will represent the region in which they are
employed.
Officials
and Regional Directors must be members of the Association and have
at least 10 years continuous employment with United Parcel Service
(UPS) or its affiliated companies, including employment with the
affiliated entity prior to acquisition by UPS.
The Officers set forth above and the 13 Regional Directors initially
appointed by the Officers will constitute the initial Board of
Directors. The initial terms of the members of the board will
be least 24 months after the organization gains representational
rights at Employees of UPS or its affiliated companies, at which
time elections for Officers and Regional Directors will be held in
accordance with the rules and procedures established by the Election
Committee. All Officers who are elected by the membership in
accordance with Section 6.9 to succeed their predecessors shall
serve for four year terms. Regional Directors following their
initial terms will likewise be elected to four year terms in
accordance with Section 7.2.
SECTION 6.2 President. The President shall be
the Chief Executive Officer and Chief Operating Officer and shall be
responsible for the overall operation and management of the
Association. The President shall be a member, with voting
rights, of the Board of Directors and its committees. The
authority and duties of the President shall include:
(a) Responsibility for
carrying out all policies established by the Board of Directors;
(b) Submission to the
Board of Directors for approval a plan of organization of the
personnel and others involved with the operation of the Association;
(c) Responsibility for
the preparation and presentation to the Board (for Board approval)
of an annual budget showing the expected receipts and expenditures
of the Association;
(d) Selection and employment, in accordance with the
Board-approved budget, and oversight, direction and discharge, of
all employees;
(e) Development and implementation of
personnel policies and practices
for the Association, subject to Board approval;
(f) Supervision of all business
affairs and to ensure that all funds are collected and expended to
the best possible advantage of promoting the interests of the
members;
(g) Countersignature of all checks of
the Association over $5,000.00;
(h) Regular submission to the Board of Directors or its
authorized committees of periodic reports showing the business and
financial activities of the Association and preparation and
submission of such special report as may be required by the Board of
Directors.
(i) Attendance of all meetings of the Board of Directors and
its committees;
(j) Call of special meetings of the Board of Directors; and
(k) Performance of such other
duties that the Board of Directors may properly direct.
SECTION 6.3
Senior Vice President.
The Senior Vice-President shall assist the President in the
execution of his duties, and serve as President during the absence
of the President
SECTION 6.4 Vice President. The Vice President
shall be a member of the Board of Directors and Executive Committee
and shall assist the President in the execution of his duties.
SECTION 6.5
Secretary.
The Secretary shall act as Secretary of both the Board of Directors
and the Association. The Secretary shall cause to be prepared
an agenda for all meetings of the Board of Directors shall act as
custodian of all records and reports of the Association and the
Board of Directors and shall be responsible for the keeping and
reporting of adequate records of all transactions, except financial,
and of the minutes of all meetings of the Board of Directors.
The Secretary shall keep the minutes of all meetings of the Board of
Directors in a book provided for that purpose. The Secretary
shall attend to the giving and serving of all notices required by
these By-laws. The Secretary may, when so ordered by the
President or the Board of Directors, affix the seal of the
Association to all contracts authorized by the Board of Directors.
The Secretary shall have charge of all such books and papers as the
Board of Directors may direct, all of which shall at all reasonable
times be open to the examination of any Director.
The Secretary shall serve as
President in the absence of both the President and Senior Vice
President.
SECTION 6.6 Treasurer. The Treasurer shall have
custody of all funds of the Association and shall prepare a monthly
and annual report. The Treasurer shall see that a true and
accurate accounting of the financial transactions of the Association
is made, and that all accounts payable are presented to such
representatives as the Board of Directors may designate for
authorization for payment.
All bills due and owing in excess of ten thousand dollars
($10,000.00) shall be paid by check issued by the Treasurer and
countersigned by the President, provided such bills first shall have
been approved for payment by a majority of the Executive Committee.
SECTION 6.7 Other Officers. The other Officers
and their respective duties shall be determined by the Board of
Directors. Such duties shall be recorded in the minutes of
such meeting electing to have other Officers, and the minutes shall
be placed within the Association’s corporate records.
SECTION 6.8 Removal of Officers. Any Officer or
Regional Director may be removed for just cause at any time by a
two-thirds (2/3) vote of the Board of Directors. Once removed,
such Officer or Regional Director will be ineligible for reelection
to the Board.
SECTION 6.9 Number, Election and Term. The
Officers of the Association shall be a President, Senior Vice
President, Vice President, Secretary and Treasurer and such other
Officers as the Board shall deem advisable. At the end of the sixty
(60) month period following the Association’s achieving
representational status, the initial terms of offices for the
initial slate of Officers will expire and the Officers thereafter
shall be elected by the membership by mail ballot in accordance with
the rules and procedures established by the Election Committee.
Subject to Section 6.8 of these By-Laws, each Officer shall hold
office until his successor shall have been duly elected and shall
have qualified or until his death or until he shall resign.
ARTICLE VII
REGIONAL DIRECTORS
SECTION 7.1
Regional Director. The initial Regional Directors shall
be appointed by the Executive Committee as provided in Article VI
and shall serve for a period of at least twenty-four (24) months
after the Association has attained representational status with UPS
or its affiliated companies. After such time, Regional
Directors shall be elected by mail ballot in accordance with the
rules and procedures established by the Election Committee
established by Article XI. Candidates for Regional Director
will be restricted to Association members from the corresponding
Regions to which they are employed and only members of that Region
may vote for Regional Director from that Region. The Regional
Directors, initially appointed by the Executive Committee as set
forth in Article VI, shall hold office for terms set forth below and
shall serve until his or her successor is elected and shall qualify.
SECTION 7.2
Classes of Regional Directors.
The Regional Directors shall be divided into four classes, Class I,
Class II, Class III and Class IV as nearly equal in number as
possible. After twenty-four (24) months following the
Association gaining representational status, Regional Directors of
the first class (Class I) shall be elected by mail ballot for a term
of forty-eight (48) months in accordance with the rules and
procedures established by the Election Committee. Thereafter,
each of the other three classes will hold similar elections for
forty-eight (48) month terms. The election of Class II
Regional Directors will be held thirty-six (36) months after
representational status is attained; the election of Class III
Regional Directors will be held forty-eight (48) months after
representational status is attained; the election of Class IV
Regional Directors will be held sixty (60) months after
representational status is attained. Following the election
for Class IV Board of Directors, elections will be held annually by
mail ballot for the class of Regional Directors whose terms expire,
and those successor Regional Directors will each serve a four (4)
year term thereafter. When or if the number of Regional
Directors is changed, any newly created Regional Directorship or any
decrease in Regional Directorships shall be apportioned by class by
the Board of Directors as to make all classes as nearly equal in
number as possible. Election of Regional Directors will be
held by mail ballot.
SECTION 7.3
Qualification.
Directors must be members of the Association and have at least ten
(10) years of continuous employment with Employees of UPS or its
affiliated companies
including employment with the affiliated entity prior to acquisition
by UPS or its affiliated companies. Directors
must also be employed in the Region to which they are elected or
appointed Director.
ARTICLE VIII
Board of DIRECTORs
SECTION
8.1 Authority. The business and affairs of the
Association shall be managed by or under the authority of its Board
of Directors, which may exercise all powers of the Association,
subject, nevertheless, to the provisions of the Delaware Code, the
Certificate of Incorporation and these Bylaws of the Association.
The Board of Directors shall have full power and authority to
create, prescribe, approve and amend these Bylaws as provided in
Article XIII.
SECTION
8.2 Number; Composition; Election; Term. The Board of
Directors shall consist of not more than eighteen (18) Directors
composed of the following: up to five (5) voting Directors shall be
the Officers of the Association (“Officer-Director”) and thirteen
(13) voting Regional Directors (“Regional Directors”) who shall be
members of the Association, each of whom shall be elected from one
of the thirteen (13) Regions (“Regions”). The thirteen Regional
Directors will correspond to the thirteen Regions set forth in
Attachment #1 hereto, and each of these Regional Directors will
represent the Region in which he or she is employed.
SECTION
8.3 Meetings. The Board of Directors shall meet
pursuant to Article V of these Bylaws.
SECTION
8.4 Vacancies. Vacancies occurring on the Board,
including those caused by the resignation, removal or death of a
Director, shall be filled by the President for the unexpired term of
such Directorship. A Director appointed to fill a vacancy shall hold
office for the remainder of the original Director’s term and for
Regional Directors shall be a member of the same Region as the
exiting Regional Director.
SECTION
8.5 Quorum and Adjournment of Meetings. A majority of
the voting Directors shall constitute a quorum at any meeting of the
Board of Directors. If a quorum shall not be present at any
meeting of the Board of Directors, Directors entitled to vote
thereat, present in person, shall have the power to adjourn the
meeting from time to time, if the time and place of the adjourned
meeting are announced at the meeting at which the adjournment is
taken, until a quorum shall be present or represented.
SECTION 8.6 Presiding Officer. The
President or in his absence the Senior Vice-President, or in their
absence the Secretary, shall preside at all meetings of the Board of
Directors. If they are not present, the Directors present
shall elect a Chairman for that meeting.
SECTION 8.7 Action of the Board of Directors.
Except as otherwise required by the Certificate of Incorporation,
these By-Laws or the Delaware Code, as hereafter amended, the vote
of a majority of the Directors present at the time of the vote, if a
quorum is present at such time, shall be an act of the Board of
Directors.
SECTION 8.8 Action Without a Meeting. Any
action required or permitted to be taken at any meeting of the Board
of Directors or of any Committee thereof may be taken without a
meeting if all Directors or all members of the Committee consent in
writing to adoption of a resolution authorizing the action and if
the resolutions or written consents thereto are filed with the
minutes of the proceedings of the Board of Directors or of the
Committee.
SECTION 8.9 Action by Conference Telephone Call.
One or more Directors or members of any Committee may participate in
a meeting of the Board of Directors or any Committee thereof by
means of a conference telephone or similar communications equipment
allowing all persons participating in the meeting to hear each other
at the same time. Participation by such means shall constitute
presence in person at the meeting.
SECTION 8.10
Resignation or Removal of Directors. A Director may
resign at any time by tendering his or her resignation to the
Association, which resignation shall become effective upon the date
specified therein, or if no date is specified therein, upon receipt
by the Association at its principal place of business.
Resignation or removal as a Director shall also constitute
resignation or removal as an Officer, if applicable, and as a member
of all Committees of the Board.
Any member of the Board of Directors may be removed from office at
any time but only for cause by a vote of two-thirds of the voting
Directors. “Cause” shall be failure to meet the qualifications
for directorship as set forth in Section 7.3 hereof, failure to
perform or comply with Board policies as established from time to
time by the Board, or action detrimental to the reputation or best
interests of the Association.
SECTION
8.11
Compensation of Officers, Directors and Committee Members.
Directors, Officers and Members of all Committees shall not receive
compensation for service in more than capacity as an Officer, Board
member or Committee member.
ARTICLE IX
MEETINGS OF DIRECTORS
SECTION
9.1 Annual Meetings. Annual meetings of members
shall commence within one (1) year following the appointment of the
full complement of the eighteen Board members, as shall be designed
by the Board of Directors and stated in the notice of the meeting.
SECTION
9.2 Regular Meetings. Regular meetings of the
Board of Directors may be held at such intervals throughout the
Association’s fiscal year as may be determined by the Board of
Directors. At the annual meeting of the Board, the Board shall
consider and approve a schedule of the dates and times of Board
meetings for the ensuing fiscal year. Board meetings may be
held at the Association’s office or such other locations as the
Board may determine.
SECTION 9.3 Special Meetings. Special
meetings of the Board of Directors may be called by the President or
Senior Vice-President, in the absence of the President, or upon
petition of any five (5) voting Directors. The President, or
Vice-President, in the absence of the President, shall fix the place
and time of the meeting.
SECTION
9.4 Notices; Form; Delivery. Whenever, under the
provisions of law, the Certificate of Incorporation or these Bylaws,
notice is required to be given to any Director, it shall not be
construed to mean exclusively personal notice unless otherwise
specifically provided, but such notice may be given in writing, by
mail, addressed to such Director, at his post office address as it
appears on the records of the Association, with postage thereon
prepaid. Any such notice shall be deemed to have been given at
the time it is deposited in the
United States
mail. Notice to a Director may also be given personally or by
telecopy sent to his address as it appears on the records of the
Association.
ARTICLES X
COMMITTEES
SECTION
10.1
Executive Committee. The Executive Committee shall be
comprised of the President, Senior Vice-President, Vice President,
Secretary and Treasurer. Initially, the Executive Committee
shall appoint one Regional Director from each of the thirteen (13)
Regions to serve on the Board of Directors. The Executive
Committee shall have and may exercise all powers and authority of
the Board of Directors when the Board is not in session; provided,
however, the Executive Committee shall have no authority to negate
any official decision of the Board of Directors or to take such
actions as may be prohibited to Executive Committees under Delaware law.
SECTION 10.2
Committees of the Board. The Board of Directors may
designate one or more other committees; each committee to consist of
one or more of the Directors of the Association. The Board of
Directors may designate one or more Directors as alternate members
of any committee, who may replace any absent or disqualified member
at any meeting of the committee. In the absence or disqualification
of a member of the committee, the member or members thereof present
at any meeting and not disqualified from voting, whether or not he
or they constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in place of any such
absent or disqualified member. Any such committee, to the
extent permitted by law and to the extent provided in the resolution
of the Board of Directors, and shall have and may exercise all the
powers and authority of the Board of Directors in the management of
the business and affairs of the Association; provided, however, that
no such committee shall have the power or authority to adopt, amend
or repeal any Bylaw of the Association. Such committee or
committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board.
SECTION 10.3
Procedures; Minutes of Meetings. Unless the Board of
Directors otherwise provides, each committee designated by the Board
of Directors may make, alter and repeal rules for the conduct of its
business. Each committee shall keep regular minutes of its
meetings and report the same to the Board, when required. Unless
otherwise specified in the Board resolution appointing the
Committee, all provisions of the Delaware Code and these Bylaws
relating to meetings, action without meetings, notice (and waiver
thereof) and quorum and voting requirements of the Board apply, as
well, to such committees and their members.
ARTICLE
XI
ELECTION COMMITTEE
SECTION 11.1
Election Committee. The Board of Directors, in
accordance with Section 10.2, will appoint an Election Committee
which will establish procedures for conducting mail ballot elections
for Officers and Regional Directors consistent with these By-Laws
and for shop stewards, business agents and such other officials as
the Board of Directors may deem appropriate.
ARTICLE
XII
EXCULPATION, INDEMNIFICATION
AND INTERESTED TRANSACTIONS
SECTION 12.1
Limitation of Liability.
To the maximum extent permitted
by applicable law, no Director or Officer of the Association shall
be liable to the Association for money damages. Neither the
amendment nor repeal of this Article, nor the adoption or amendment
of any other provision of these Bylaws of the Association
inconsistent with this Article, shall apply to or affect in any
respect the applicability of the preceding sentence with respect to
any act of failure to act which occurred prior to such amendment,
repeal or adoption.
SECTION 12.2
Indemnification.
(a)
The Association shall indemnify, in accordance with and to the full
extent permitted by the Delaware Corporation Law, as the same exists
or may hereafter be amended, any person (and his or her executors,
administrator, legal representatives and heirs) (an "Indemnitee")
who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative, or investigative (including, without limitation, an
action by or in the right of the Association) (a "Proceeding"), by
reason of the fact that such person is or was a Director or Officer
of the Association, or is or was serving at the request of the
Association as a Director or Officer of another association,
partnership, joint venture, trust, limited liability company or
other enterprise, against any liability or expense actually and
reasonably incurred by such person in respect thereof. The
Association shall have
the power, with the
approval of the Board of Directors, to provide such indemnification
to a person who served a predecessor of the Association in any of
the capacities described above and to any employee or agent of the
Association or a predecessor of the Association. Such
indemnification is not exclusive of any other right to
indemnification provided by law or otherwise.
(b) The Association may
indemnify, in accordance with and to the full extent permitted by
the Delaware Corporate Law, as the same exists or may hereafter be
amended, any person (and his or her executors, administrator, legal
representatives and heirs)
(an "Indemnitee") who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative, or investigative (including, without
limitation, an action by or in the right of the Association) (a
"Proceeding"), by reason of the fact that such person is or was an
employee, agent or other representative (other than a Director or
Officer of the Association), against any liability or expense
actually and reasonably incurred by such person in respect thereof.
Any such indemnification shall not be exclusive of any other right
to indemnification provided by law or otherwise.
(c) A Director of the
Association shall not be personally liable to the Association for
monetary damages for breach of fiduciary duty as a Director, except
for: (i) liability for any breach of the Director's duty of
loyalty to the Association or its members; (ii) liability for acts
or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) liability under
Section 174 of the Delaware General Corporation Law; or (iv)
liability for any transaction from which the Director derived an
improper personal benefit.
SECTION 12.3
Prepayment of Expenses. The Association may pay the
expenses (including attorneys' fees) incurred by an Indemnitee in
defending any Proceeding in advance of its final disposition;
provided, however, that to the extent required by law, such payment
of expenses in advance of the final disposition of the Proceeding
shall be made only upon receipt of an undertaking by the Indemnitee
to repay all amounts advanced if it should be ultimately determined
that the Indemnitee is not entitled to be indemnified under this
Article VI or otherwise.
SECTION 12.4
Authorization. Any indemnification under Section
12.2 (unless ordered by a court) shall be made by the Association
only as authorized in the specific case upon a determination that
indemnification of the Director or Officer is proper in the
circumstances because he or she has met the applicable standard of
conduct set forth in the Delaware Code.
SECTION
12.5
Nonexclusivity of Rights. The rights conferred on
any Indemnitee by this Article shall not be exclusive of any other
rights which such Indemnitee may have or hereafter acquire under any
statute, provision of the Articles of Incorporation, these Bylaws,
agreement, vote of disinterested Directors or otherwise.
SECTION 12.6
Amendment or Repeal. Any repeal or modification of
the foregoing provisions of this Article shall not adversely affect
any right or protection hereunder of any Indemnitee in respect of
any act or omission occurring prior to or at the time of such repeal
or modification.
SECTION 12.7
Other Indemnification and Prepayment of Expenses.
This Article XII shall not limit the right of the Association, to
the extent and in the manner permitted by law, to indemnify and to
advance expenses to persons other than Indemnitees when and as
authorized by the Board.
SECTION 12.8
Survival of Indemnification Rights. The rights to
indemnification and advance payment of expenses provided by Section
12.2 and 12.3 hereof shall continue as to a person who has ceased to
be a Director, Officer, employee or agent of the Association and
shall inure to the benefit of the personal representatives, heirs,
executors and administrators of such person.
SECTION 12.9
Insurance. The Association must purchase and
maintain insurance to indemnify it against the whole or any portion
of the liability assumed by it in accordance with this Article XII
and may also procure insurance, in such amounts as the Board of
Directors may determine, on behalf of any person who is or was a
Director, Officer, employee or agent of the Association, or is or
was serving at the request of the Association as a Director,
Officer, employee, partner (limited or general), manager, trustee or
agent of another association or of a partnership, joint venture,
limited liability company, trust or other enterprise, against any
liability asserted against such person or incurred by such person in
any such capacity, or arising out of such person's status as such,
and related expenses, whether or not the Association would have the
power to indemnify such person against such liability under the
provisions of applicable law.
SECTION 12.10
Transactions With Interested Persons. No contract
or transaction between the Association and any of its Directors or
Officers, or between the Association and any other association,
partnership, limited liability company, association or other
organization in which any of its Directors or Officers is a Director
or Officer or has a financial interest, shall be void or voidable
solely for that reason, or solely because the Director or Officer is
present at or participates in the meeting of the Board of Directors
or committee thereof at which the contract or transaction is
authorized or solely because his or her vote is counted for such
purpose, if –
(a) the material facts as
to his or her relationship or interest and as to the contract or
transaction are disclosed or are known to the Board or the
committee, and the Board or committee in good faith authorizes the
contract or transaction by the affirmative vote of a majority of the
disinterested Directors, even though the disinterested Directors are
less than a quorum; or
(b) the contract or
transaction is fair as to the Association as of the time it is
authorized, approved or ratified by the Board or a committee
thereof.
ARTICLE XIII
MISCELLANEOUS
SECTION
13.1
Minutes of Meetings; Materials. The
Association shall keep as permanent records, minutes of all meetings
of its Board of Directors and all actions taken by a committee of
the Board of Directors and copies of all materials distributed to
Members. The Association may deliver all minutes of meetings
to its counsel to be placed in the Association’s corporate records
book.
SECTION
13.2
Fiscal Year. The Board of Directors shall have
the power to fix, and from time to time to change, the fiscal year
of the Association.
SECTION
13.3
Audits. The accounts, books and records of the
Association shall be audited within thirty (30) days after the
conclusion of each fiscal year. The audit shall be conducted by an
independent certified public accountant (“CPA”) selected by the
Board of Directors, whose fee schedule will be fair and reasonable
as similarly compared to other qualified CPA firms, and it shall be
the duty of the Board of Directors to cause such audit to be made
annually.
ARTICLE XIV
AMENDMENT
SECTION 14.1
Amendment. These By-Laws may be amended or
repealed, and new By-Laws may be adopted, by the affirmative vote of
not less than two-thirds of the number of voting Directors
constituting the entire Board of Directors.
ARTICLE XV
RATIFICATION OF CONTRACTS
All Members in good standing within the unit covered by a
proposed contract will have the opportunity to vote for or against
ratification. Ballots
will be mailed to the current address on record with the
Association. It is the
member’s responsibility to keep his or her address current.
All ballots received by the Association within fourteen (14)
days from the post mark on the mailed ballot envelope shall be
counted. No contract
will be accepted by the Association if it is not ratified by a
majority of the
timely-returned ballots.
ARTICLE XV
STRIKE VOTE
All members in good standing within the bargaining unit will
have the opportunity to vote by mail ballot prior to any strike.
Ballots will be mailed to the current address on record with
the Association. It is
the member’s responsibility to keep his or her address current.
All ballots received by the Association within fourteen (14)
days from the post mark on the mailed ballot envelope shall be
counted. No strike will
be authorized that does not receive the support of a majority of the
timely-returned ballots.
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