 |
|
Proposed Pacifica bylaws draft - as reviewed by lawyer - clean version - 1-17-03 |
• Lawyer's accompanying letter to Pacifica [ html - 29kb ] [ MS Word - 70kb ] • The bylaws draft - red-lined version [ html - 180kb ] [ MS Word version - 293kb ] -----------------------------------------------
OF PACIFICA FOUNDATION A California Non-Profit Public Benefit Corporation ARTICLE ONE
SECTION 1. NAME The name of this corporation is the PACIFICA FOUNDATION, and it shall be referred to in these Bylaws as the "Foundation". SECTION 2. PURPOSES The purposes of the Foundation, as stated in Article II of the Articles of Incorporation, are as follows:
SECTION 3. PRINCIPLES The Foundation is committed to peace and social justice, and seeks to involve in its governance and operations individuals committed to these principles. SECTION 4. EQUAL OPPORTUNITY REPRESENTATION. The Foundation is enhanced by the full and effective involvement of all Members regardless of race, color, sex, age, religion, national origin, disability or sexual orientation. The Foundation strongly encourages all of its radio stations, staff, Members, Delegates, Directors and Officers to promote diversity among its Members, Officers, volunteers, and employees as well as among its Delegates and Directors to the fullest extent permissible, subject to applicable federal and state laws and regulations. ARTICLE TWO
SECTION 1. PRINCIPAL OFFICE The principal office and place of business of the Foundation shall be located in the County of Alameda, State of California, or at such other places as the Board of Directors may designate. SECTION 2. OTHER OFFICES The Foundation shall also have other offices at other places within or without the State of California as the Board of Directors may from time to time designate. ARTICLE THREE
SECTION 1. MEMBERS DEFINED There shall be two classes of members: (A) "Listener-Sponsor Members" and (B) "Staff Members", who shall collectively be referred to as "Members."
SECTION 2. TERM. A membership term shall be for a period of twelve (12) months. For purposes of calculation, for Listener-Sponsor Members, the 12-month period shall be calculated from that date on which: (A) said Member contributed a minimum of $25 to any Foundation radio station (or such other minimum amount as the Board of Directors may determine from time to time); or (B) said Member volunteered a minimum of 3 hours of service to a Foundation radio station. For purposes of calculation for non-employee Staff Members, said Member's membership term shall be for a period of 12 months from that date on which s/he volunteered a minimum of 30 hours in a 3-month period. In the case of a Staff Member that is a non-management employee of the Foundation or a Foundation radio station, said Member's membership term shall be for a period of 12 months from that date which is thirty (30) days after their employment with said radio station commences, provided however that if that Staff Member's employment with said local station board should terminate, or if said Staff Member begins a management position with the Foundation or a Foundation radio station, then said Staff Member's membership shall automatically terminate. Membership terms shall be considered "rolling," and calculated forward from the last date of a Member's qualifying act. For example, if a Listener-Sponsor Member makes a $25 contribution on January 1, 2003 and does not make any additional contribution nor volunteers at least 3 hours within the following 12-month period, said Member's membership will expire on December 31, 2003. If, however, in the same example, said Member contributes at least $25 on August 1, 2003, or volunteers for at least 3 hours, then his/her membership will not expire until July 31, 2004, provided no additional contribution or volunteer time is made after the August 1, 2003 contribution. Additionally, the membership of Staff Member employees will automatically renew annually, provided that they are an employee of said radio station on the day after their membership term ends. Each time a Member makes a qualifying contribution of money or time, s/he shall be notified, which notification shall indicate the expiration date of said Member's membership. SECTION 3. MEMBERSHIP AFFILIATION All Members shall be considered members of the Foundation. For purposes of voting and exercising their rights hereunder, Members shall be considered affiliated with one of the Foundation's radio stations. Members shall be considered affiliated with that Foundation radio station: (A) in the case of a Listener-Sponsor Member, to which said member made a contribution or volunteered time in the preceding 12 months; (B) in the case of a Staff Member, by which said member is employed or for which said member has volunteered. Each Foundation radio station shall maintain a register of its Listener-Sponsor Members and Staff Members and shall notify each Member on its register, as to which station area it is affiliated. In the event that a person qualifies for membership with more than one Foundation radio station, s/he shall be entitled to only one membership and shall notify the Foundation and each applicable Foundation radio station of which radio station s/he wishes to be affiliated as a Member. In the event that a person qualifies both as both a Listener-Sponsor Member and as a Staff Member, such person shall be deemed to be a Staff Member. SECTION 4. WAIVER OF REQUIREMENTS The Board of Delegates of each Foundation radio station (also referred to herein as "Local Station Board of Delegates," "Local Station Board" and/or "LSB") may adjust or waive the contribution requirement for Listener-Sponsor Membership set forth in Section 1(A) of this Article of these Bylaws on a case by case basis for reasons of financial hardship, where said LSB, in its discretion, determines that the proposed member has demonstrated a sincere interest in becoming a Member of the Foundation and is also genuinely unable to afford the contribution amount or to volunteer the minimum 3 hours of service. SECTION 5. RIGHTS All Members shall have the right to vote, on the terms and in the manner set forth in these Bylaws, on the election and removal of Delegates, on the removal of Directors, on the sale, exchange, transfer or disposition of all or substantially all of the Foundation's assets, including, but not limited to, any of its broadcast licenses; on any merger, its principal terms and any amendment of its principal terms, on any election to dissolve the Foundation, and on any amendment to these Bylaws or the Articles. SECTION 6. MEETINGS OF THE MEMBERS.
SECTION 7. QUORUM For purposes of any election or written ballot, a quorum of the Listener-Sponsor Members shall be ten percent (10%) of those Listener-Sponsor Members entitled to vote, and a quorum of the Staff Members shall be one-third (1/3) of those Staff Members entitled to vote, as of the applicable record date. SECTION 8. VOTING: VOTING BY WRITTEN BALLOT To ensure the opportunity for all Members to participate in the voting process, all voting shall be by written ballot distributed by the Foundation, or the Local Station Board with which the Members are affiliated, as appropriate, to each of the Members entitled to vote.
SECTION 9. MANNER OF NOTICE Whenever notice to Members is required under these Bylaws, notices shall be submitted, at the Foundation's sole discretion, either personally, by first class, registered or certified mail, by electronic mail or by other means of written communication, charges, pre-paid, and shall be addressed to each Member entitled to vote, at the address or email address of that Member as it appears on the Foundation's books or at the address given by the Member to the Foundation for purposes of notice. If no address appears on the Foundation's books and no address has been given; notice shall be deemed to have been given if either: (i) notice is sent to the Member by first-class mail or facsimile, email or other written communication to the address of the Foundation radio station with which said Member is affiliated or (ii) notice is published at least once in a newspaper of general circulation in the county where said Foundation radio station is located SECTION 10. RECORD DATE The record date for purposes of determining the Members entitled to receive notice of any meeting, entitled to vote by written ballot or entitled to exercise any other lawful membership action, shall be forty-five (45) days before the date of the special meeting, 45 days before the day on which the first written ballot is distributed, or made available, to the Members or 45 days before the taking of any other action, as applicable. SECTION 11. PROXIES Each Member entitled to vote shall have right to do so either in person or by one or more agents authorized by a written proxy signed by the Member and filed with the Secretary of the Listener-Sponsor Board of the radio station with which s/he is affiliated; provided, however, that no proxy shall be valid after 11 months from the date of the proxy unless provided otherwise in the proxy, except that the maximum term of a proxy shall be three years after the proxy's date. ARTICLE FOUR
SECTION 1. LOCAL STATION BOARDS OF DELEGATES Each Foundation radio station shall have a Local Station Board of Delegates ("LSB") whose duties and responsibilities shall be those set forth in these Bylaws. Each LSB shall serve as an advisory committee of the Foundation's Board of Directors for their respective station area. Each Delegate shall be a natural person elected by the Members, as set forth in these Bylaws, to serve on the LSB. Each Delegate shall also serve as the representative of the Members of its local radio station area in the election of the Foundation's Board of Directors. Delegates may only act personally in a meeting or by written ballot and may not act by proxy.
SECTION 2. COMPOSITION OF THE LSB Each LSB shall consist of 13 Delegates - 3 of whom shall be designated as
Staff Delegates and elected by Staff Members voting as a class and 9
of whom shall be designated as Listener-Sponsor Delegates and elected
by Listener-Sponsor Members voting as a class. Listener-Sponsor Delegates
and Staff Delegates shall be collectively referred to as "Delegates."
The remaining Delegate shall be chosen collectively by ____________. SECTION 3. SPECIFIC POWERS & DUTIES Each LSB shall have the authority and responsibility, related to its specific radio station and radio station area, under the direction and supervision of the Foundation's Board of Directors:
SECTION 4. OTHER LSB POWERS AND AUTHORITY The Foundation's Board of Directors may delegate any other corporate powers it deems appropriate to a LSB.
SECTION 5. ELECTION OF OFFICERS Each Local Station Board shall elect a Chair, a Vice-Chair, a Recording Secretary, and a Treasurer, who shall be elected in January of each year for a term of one year. Each of these officers shall serve at the pleasure of the LSB and shall have those powers and shall perform those duties as may be prescribed by its LSB. With the exception of the Chair and the Vice-Chair, an officer does not have to also be a Delegate. Local Station Board officers may not serve concurrently as Foundation Directors. SECTION 6. MEETINGS
F. RECORDKEEPING AND RULEMAKING Meetings and actions of the LSB shall be governed by the provisions of these Bylaws. A book of Minutes of all meetings and actions of the LSB shall be kept and shall be filed with the records of the LSB, which book shall include the time and place of each meeting, the notice given, how authorized, any waivers or consents, the names of those present, a summary and of the proceedings. Minutes of closed meetings shall be maintained, but sealed as confidential. Each LSB may adopt rules for the governance of its LSB so long as the rules are consistent with these Bylaws.
SECTION 7. QUORUM AND APPROVAL A quorum shall be one-half of the duly elected LSB Delegates. The approval of 51% of the Delegates of the LSB shall be required for any action of said LSB. SECTION 8. ASSOCIATE STATIONS
SECTION 9. REMOVAL OF DELEGATES Any Delegate shall be removed from the position of Delegate, and cease to be a Delegate upon the occurrence of any of the following: (A) said Delegate's death or resignation; (B) upon the occurrence of a disqualifying act, i.e. the appointment to an elected office; (C) failure of a Delegate to attend 80% of all LSB meetings in a given year, which absences have not been excused by a majority vote of the LSB (excluding the vote of the Delegate in question); (D) upon the fair and reasonable determination by a majority vote of the Board of Directors after a review of the facts, in its sole discretion, that said Delegate has exhibited conduct that is adverse to the best interests of the Foundation or the LSB; or (E) upon the majority vote of the LSB on which said Delegate sits that said Delegate has exhibited conduct that is adverse to the best interests of the Foundation or the LSB, provided that said LSB first receives a petition by at least fifty (50) of the Members affiliated with its radio station area seeking said Delegate's removal due to conduct by the Delegate that is alleged to be adverse to the best interest of the Foundation or the local radio station area, upon a fair and reasonable review of the facts by the LSB. SECTION 10. FILLING OF VACANCIES If a Listener-Sponsor Delegate's seat shall become vacant, that seat shall
be filled for the remainder of the term by a ___________. If a Staff
Delegate's seat shall become vacant, that seat shall be filled for the
remainder of the term by ____________. SECTION 11. COMPENSATION Delegates shall serve without compensation except that they shall be allowed reasonable advancement or reimbursement of expenses incurred in the performance of their regular duties. ARTICLE FIVE
SECTION 1. ELECTION COMMITTEE In preparation for an election of Delegates, each LSB shall appoint, by a majority vote of said LSB, a LSB Elections Committee to oversee and certify the fairness of the elections and its conformity with these Bylaws. Each LSB Elections Committee shall consist of three individuals whom the LSB considers neutral and who shall not be a Director or Delegate or an employee of the Foundation's national staff or of a Foundation radio station. As part of the LSB Elections Committee duties, it shall prepare a nomination petition form for use by all potential nominees, review each potential candidate's nomination papers for eligibility and completeness; oversee the preparation and distribution of the election ballot, close the election, oversee the counting of the ballots and report the results in writing to the Members affiliated with said Foundation radio station. SECTION 2. ELIGIBILITY; NOMINATION OF DELEGATES
SECTION 3. ELECTION OF DELEGATES All elections for Delegates shall be by written ballot. Members shall only have the right to elect Delegates to sit on the LSB of the Foundation radio station with which the Member is affiliated, provided, however, that Members shall vote in classes. Except as specifically provided herein, only Listener-Sponsor Members are entitled to vote for Listener-Sponsor Delegates and only Staff Members are entitled to vote for Staff Delegates. There shall be thirteen (13) Delegates. Elections of Delegations shall be staggered over a 3-year period with elections for 2 Staff Delegates and 5 Listener-Sponsor Delegates to be held on the first year, elections for 1 Staff Delegate and 4 Listener-Sponsor Delegates to be held on the second year and no elections on the third year. The ballots for said elections shall be prepared, distributed, processed and counted consistent with the terms of Section 8 of Article 3 of these Bylaws. All written ballots related to the election, and the removal, of any and all Delegates shall be filed with the LSB and maintained for a period of two (2) years. SECTION 4. ELECTION TIME FRAME In a Delegate election year, the nominations for vacating seats shall open on July 27th and remain open for sixty (60) days, closing on September 24th. The Election Committee shall have five days thereafter to prepare the written ballot listing all of the candidates and setting forth all other information required by these Bylaws. Ballots shall be distributed to the Members on October 1st and the Members shall have until October 30th (the "Election Close Date") to return said ballots. To be counted all ballots must be received by the LSB on or before October 30th. All ballots shall be held sealed until the Election Close Date, after which date they shall be open and counted together. The Elections Committee shall have 30 days to count said ballots and to certify the results, which results must be reported to the Members by November 29th. SECTION 5. DELEGATES' TERMS OF OFFICE A Delegate's term of office on a LSB shall be three (3) years. A Delegate may serve two (2) consecutive three-year terms. A Delegate shall not be eligible for further service as a Delegate until one year has elapsed after the termination of the Delegate's second consecutive three-year term. SECTION 6. FAIR CAMPAIGN PROVISIONS Except as specifically provided in this Section, no Foundation or radio station management or staff may use air time to endorse, campaign or recommend in favor or against any candidate for election as a Delegate, nor may air time be given to some Delegate candidates but not to others. All candidates for election as a Delegate shall be given equal opportunity for equal air time, which air time shall include time for a statement by the candidate and for questions and answers from the listeners. No Foundation or radio station management or staff may give written or verbal endorsements to any Delegate. Neither the Board of Directors nor any LSB may, as a body, endorse any candidate(s) for election as a Delegate. However, an individual Director or Delegate who is a Member in good standing may endorse or nominate candidates in their own name. ARTICLE SIX
SECTION 1. BOARD OF DIRECTORS - ELIGIBILITY, NUMBER, POWERS AND DUTIES
SECTION 2. TERM: The term of a Director shall be three (3) years. A Director may serve no more than two consecutive three-year terms in a row. A Director shall not be eligible for further services as a Director until one year has elapsed after the termination of a Director's second consecutive three-year term. As long as a Director is a Delegate of a Listener-Sponsor Board at the time s/he was elected, s/he can continue to serve as a Director, even if his/her term as a Delegate ends during his/her term as a Director.
SECTION 3. NOMINATION OF DIRECTORS
SECTION 4. ELECTION OF DIRECTORS
SECTION 5. SEATING OF DIRECTORS All newly elected Directors shall be seated at the Annual Meeting of the Board of Directors held in March, in which month their term shall commence. SECTION 6. REMOVAL OF DIRECTORS Any Director shall be removed from the position of Director, and cease to be a Director upon the occurrence of any of the following: (A) said Director's death or resignation; (B) upon the occurrence of a disqualifying act, i.e. the appointment to an elected office; (C) failure of a Director to attend 80% of all Board meetings in a given year, which absences have not been excused by a majority vote of the Board (excluding the vote of the Director in question); (D) upon the fair and reasonable determination by a 2/3 vote of the Board (excluding the vote of the Director in question) after a review of the facts, in its sole discretion, that said Director has exhibited conduct that is adverse to the best interests of the Foundation; or (E) upon the 2/3 vote of the LSB that elected said Director that said Director has exhibited conduct that is adverse to the best interests of the Foundation, provided that said LSB first receives a petition by at least fifty (50) of the Members affiliated with its radio station area seeking said Director's removal due to conduct by the Director that is alleged to be adverse to the best interest of the Foundation and upon a fair and reasonable review of the facts by the LSB. SECTION 7. FILLING VACANCIES ON THE BOARD If a Director's seat previously held by a Director elected by a LSB becomes vacant for any reason, that seat shall be filled for the remainder of the term by a Director elected by that LSB, provided, however, that if the previous Director was a Staff Director, the LSB shall election a Staff Director or if the previous Director was a Listener-Sponsor Director, then a Listener-Sponsor Director shall be elected. If a Director's seat previously held by an at-large Director becomes vacant for any reason, that seat shall be filled for the remainder of that term by the majority vote of the Board from the most recent list of nominees it had received for at-large Directors. SECTION 8. COMPENSATION Directors shall serve without compensation except that they shall be allowed reasonable advancement or reimbursement of expenses incurred in the performance of their regular duties. SECTION 10. RESTRICTION REGARDING INTERESTED DIRECTORS Notwithstanding any other provision of these Bylaws, not more than forty-nine percent (49%) of the persons serving on the board may be interested persons. For purposes of this Section, "interested persons" means either:
ARTICLE SIX
SECTION 1. TIME AND PLACE OF MEETINGS The Annual Meeting of the Board of Directors shall take place in March, at such other times and places as agreed by a majority vote of the Board of Directors meeting. The Board shall also regularly meet in May and September of each year. The Board meetings shall rotate through the five radio station areas so that meetings do not take place twice in the same station area until a meeting has been held in all other station areas. SECTION 2. SPECIAL MEETINGS Special meetings of the Board of Directors may be called by the Chairman of the Board, any two Officers of the Board, or by any three members of the Board. SECTION 3. TELEPHONIC MEETINGS Any meeting of the Board may be held by telephone conference, video screen communication or other communications equipment. Participation in a meeting under this Section shall constitute presence in person at the meeting if all of the following apply:
A. Each Director participating in the meeting can communicate concurrently with all other Directors.
B. Each Director is provided the means of participating in all matters for the Board, including the capacity to propose, or to interpose an objection to, a specific action to be taken by the Foundation.
C. The Board has a means of verifying that the person participating at the meeting is a Director and that all votes cast during said meeting are cast only by Directors.
SECTION 4. NOTICE Notice of every regular meeting of the Board of Directors, stating the time and place of said meeting, and the purposes thereof, shall be sent to each Director by first class mail, telecopier or email, according to the preference each Director specifies in writing to the Secretary of the Board, at least thirty (30) days before any such meeting. Special meetings shall require only seven (7) days advance notice, but shall also require telephonic notice by leaving a message at the telephone number given to the Secretary for such notice by each director, and shall specify the purpose of the meeting. No additional business not stated in the notice shall be conducted at a special meeting. Notice of all meetings shall be placed on the Foundation's website and announced a minimum of 3 times daily on air for five days on all Foundation radio stations, beginning, whenever reasonably possible, no later than seven days before the date of said meeting. Notice of a meeting does not have to be given to a Director who affirmatively agrees to attend a meeting or to waive this advance notice requirement, signs a waiver of notice or a written consent to hold the meeting, or who attends the meeting without protesting, prior to the meeting or upon commencement of the meeting, to the lack of notice to that Director. SECTION 5. QUORUM A quorum at any meeting of the Board of Directors shall consist of 51% of the then serving Directors. SECTION 6. PROXIES All action taken by Directors shall be taken by the elected Director personally. The powers of members of the Board may not be exercised by alternates, by proxy or the like. SECTION 7. OPEN MEETINGS All meetings of the Board of Directors and its committees shall be open to the Members and to the public, with the exception of those meetings dedicated to or predominantly regarding personnel, proprietary information, litigation and other matters requiring confidential advice of counsel, involving commercial or financial information obtained on a privileged or confidential basis or relating to a purchase of property or the use or engagement of services whenever the premature exposure of said purchase or sale, in the Board's sole opinion may compromise the legitimate business interest of said Foundation. In the event that all or a portion of a meeting is closed, the Board shall indicate in its notice of said meeting that the meeting or a part of it shall be closed. In addition, within a reasonable period after the closed meeting, the Secretary shall post on the Foundation's website a general statement of the basis on which all or part of said meeting was closed. No person shall be required, as a condition for attendance at any public meeting (although it will be a condition to publicly comment), to register his/her name or to provide any other information. All public meetings of the Board and its committees shall include public comment periods. These periods for Board meetings shall be not less than one hour, and for committee meetings, not less than one-half hour. SECTION 8. ACTION BY UNANIMOUS WRITTEN CONSENT Any action that the Board is required or permitted to take may be taken without a meeting if all Directors consent in writing to the action; provided, however, that the consent of any Director who has a material financial interest in a transaction to which the Foundation is a party and who is an "interested director" as defined in California Corporations Code Section 5233 and referenced in Section 10 of Article 5 of these Bylaws shall not be required for approval of said transaction. Such action by written consent shall have the same force and effect as any other validly approved action of the Board. All such consents shall be filed with minutes of the proceedings of the Board. SECTION 9. ACCESSIBILITY Reasonable efforts will be made to hold all public Board meetings in spaces fully accessible as defined in the Americans with Disability Act and any other applicable state and federal laws. Properly closed sessions may be held otherwise unless this would preclude access for any individual entitled to attend. ARTICLE SEVEN
SECTION 1. COMMITTEES OF DIRECTORS The Board of Directors may, by resolution adopted by a majority of the authorized number of Directors, designate one or more committees, to serve at the pleasure of the Board. The Board may designate one or more Directors as alternate members of any committee. Any such committee, to the extent provided in the resolution of the Board, shall have all the authority of the Board, except that no committee may without full Board review and approval:
All committees shall include at least one Director from each of the Foundation's radio station areas, provided however that no committee shall have more than 1 Director from the same radio station area until there is at least one Director from each radio station area on said committee.
SECTION 2. MEETINGS AND ACTIONS OF COMMITTEES. Meetings and actions of committees shall be governed by, and held and taken in accordance with, the provisions of Article 6 of these Bylaws with such changes in the context of those sections as are necessary to substitute the committee and its members for the Board and its members, except that the time of regular meetings of committees may be determined by resolution of the Board as well as the committee, special meetings of committees may also be called by resolution of the Board or the committee and notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The Board may adopt additional rules for the government of any committee not inconsistent with the provisions of these Bylaws. ARTICLE EIGHT
SECTION 1. DESIGNATION OF OFFICERS The officers of the Foundation shall be a Chairman of the Board, an Executive Director/President, a Secretary, and a Chief Financial Officer/Treasurer. The Foundation may also have, at the discretion of the Board of Directors, one or more Vice-Chairs, one or more Assistant Secretaries, one or more Assistant Treasurers. Any number of offices may be held by the same person. With the exception of the Chairman of the Board, no officer is required to be a Director. SECTION 2. ELECTION OF OFFICERS; TERM The officers of the Foundation shall be appointed and elected by the Board of Directors, and each shall serve at the pleasure of the Board (subject to the rights, if any, of an officer under any contract of employment, if any). With the exception of the Executive Director, all officers shall serve for a term of two (2) years, unless s/he resigns, is removed or is otherwise disqualified to serve prior to the expiration of his/her term. SECTION 3. REMOVAL AND RESIGNATION OF OFFICERS
SECTION 4. VACANCIES IN OFFICES A vacancy in any office of an officer because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in these Bylaws for regular appointments to such office. SECTION 5. CHAIRMAN OF THE BOARD The Chairman of the Board shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may be from time to time assigned to him/her by the Board or prescribed by these Bylaws. SECTION 6. PRESIDENT/EXECUTIVE DIRECTOR The President, who shall be referred to by the Foundation as the "Executive Director," shall be the general manager and chief administrator of the Foundation. S/he shall be selected, supervised and discharged by the Board. In addition, his/her performance will also be subject to annual evaluation by each LSB, which may make recommendations to the Board. Subject to the control of the Board, the Executive Director shall have general supervision, direction and control of the business and the officers of the Foundation and the primary responsibility for implementing the directives, decisions and policies of the Foundation and the Board pertaining to administration, personnel, programming, financing and public relations. The Executive Director shall generally promote, coordinate and supervise the mission of the Foundation and shall have such powers and perform such duties as may be delegated or assigned to him/her by the Board. SECTION 7. SECRETARY
SECTION 8. CHIEF FINANCIAL OFFICER.
ARTICLE NINE
SECTION 1. MEMBERSHIP NOT TRANSFERABLE One's position as a Member, Delegate, Director or Officer of the Foundation shall not be transferable and may not be assigned or inherited.
SECTION 2. EFFECT OF TERMINATION OF MEMBERSHIP OR POSITION - NO CLAIMS OR REFUNDS Except as specifically set forth herein, no withdrawn or terminated Members, Delegates, Directors or Officers (nor their heirs or personal representatives) shall have any claim whatsoever upon the assets of the Foundation, or any claim whatsoever arising out of said membership or the holding of any office in the Foundation. Furthermore, no Member, Delegate, Directors or Officers shall be entitled to the return of any monies contributed to the Foundation or any Foundation radio station.
ARTICLE TEN
SECTION 1. NON-LIABILITY OF DIRECTORS, OFFICERS, & DELEGATES Directors, Officers and Delegates shall not be personally liable for the debts, liabilities, or other obligations of the Foundation and private property of such individuals shall be exempt from Foundation debts or liabilities, subject to the applicable provision of California's Corporation Code, unless said debts, liabilities or other obligations are the direct result of intentional misconduct by a Director, Officer or Delegate. The personal liability of Directors, Delegates and Officers shall be eliminated to the fullest extent permitted by California law. SECTION 2. DEFINITIONS: AGENTS, PROCEEDINGS AND EXPENSES For the purposes of this Article 10, "agent" means any person who is or was a Director, Officer, Delegate, employee or agent of this Foundation; "proceeding" means any threatened, pending or completed action or proceeding, whether civil, criminal, administrative, or investigative; and "expenses" includes, without limitation, attorneys' fees and any expenses of establishing a right to indemnification under Section 3 or Section 4 of this Article. SECTION 3. ACTIONS OTHER THAN BY THE FOUNDATION This Foundation shall indemnify any person who was or is a party, or is threatened to be made a party, to any proceeding (other than an action by or in the right of this corporation to procure a judgment in its favor, an action brought under Section 5233 of the California Corporations Code or an action brought by the Attorney General or a person granted relator status for any breach of duty relating to assets held in charitable trust) by reason of the fact that such person is or was an agent of this Foundation, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding, if that person acted in good faith and in a manner that person reasonably believed to be in the best interests of this corporation, and, in the case of a criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in the best interests of this corporation or that the person had reasonable cause to believe that his or her conduct was unlawful. SECTION 4. ACTIONS BY THE FOUNDATION This Foundation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action by or in the right of this Foundation to procure a judgment in its favor by reason of the fact that that person is or was an agent of this Foundation, against expenses actually and reasonably incurred by that person in connection with the defense or settlement of that action if that person acted in good faith, in a manner that person believed to be in the best interests of this corporation, and with such care, including reasonable inquiry, as an ordinary prudent person in a like position would use under similar circumstances. No indemnification, however, shall be made under this section:
SECTION 5. SUCCESSFUL DEFENSE BY AGENT To the extent that an agent of this Foundation has been successful on the merits in defense of any proceedings referred to in Section 3 or Section 4 of this Article 10, or in defense of any claim, issue, or matter therein, the agent shall be indemnified against expenses actually and reasonably incurred by the agent in connection therewith. SECTION 6. REQUIRED APPROVAL Except as provided in Section 5 of this Article 10, any indemnification under this Article shall be made by this Foundation only if authorized upon a determination that indemnification of the agent in the specific case is proper because the agent has met the applicable standard of conduct set forth in Section 3 or Section 4 of this Article 10, by:
SECTION 7. ADVANCE OF EXPENSES Expenses incurred in defending any proceeding may be advanced by this Foundation before the final disposition of the proceeding upon receipt of an undertaking by or on behalf of the agent to repay the amount of the advance unless it shall be ultimately determined that the agent is entitled to be indemnified as authorized in this Article 10. SECTION 8. OTHER CONTRACTUAL RIGHTS Nothing contained in this Article VI shall affect any right to indemnification to which persons other than Directors and officers of this Foundation or any subsidiary hereof may be entitled by contract or otherwise. SECTION 9. LIMITATIONS No indemnification shall be made hereunder, except as provided in Section 5, Section 6(B) or as otherwise required by law, in any circumstance where it appears:
SECTION 10. INSURANCE The Foundation may, upon a determination by the Board, purchase and maintain insurance on behalf of any agent of the Foundation against any liability which might be asserted against or incurred by the agent in such capacity, or which might arise out of the agent's status as such, whether or not this Foundation would have the power to indemnify the agent against that liability under the provision of this Article 10. SECTION 11. FIDUCIARIES OF CORPORATE EMPLOYEE BENEFIT PLAN This Article 10 does not apply to any proceeding against any trustee, investment manager, or other fiduciary of an employee benefit plan in that person's capacity as such, even though that person may also be an agent of this Foundation as defined in Section 1 of this Article 10. Nothing contained in this Article 10 shall limit any right to indemnification to which such a trustee, investment manager, or other fiduciary may be entitled by contract or otherwise, which shall be enforceable to the extent permitted by applicable law. SECTION 12. AMENDMENT TO CALIFORNIA LAW In the event that California Law regarding indemnification of directors, officers, employees and other agents of Foundation, as in effect at the time of adoption of these Bylaws, is subsequently amended to in any way increase the scope or permissible indemnification beyond that set forth herein, the indemnification authorized by this Article 10 shall be deemed to be coextensive with the maximum afforded by the California Law as so amended. ARTICLE ELEVEN
SECTION 1. MAINTENANCE OF CORPORATE RECORDS The Foundation shall keep at its principal office in the State of California:
SECTION 2. CORPORATE SEAL The Board may adopt, use, and, at will, alter, a corporate seal. Such seal shall be kept at the principal office of the Foundation. Failure to affix the seal to corporate instruments, however, shall not affect the validity of any such instrument. SECTION 3. DIRECTORS' INSPECTION RIGHTS Every Director, or his or her designated agent, shall have the absolute right at any reasonable time to inspect and copy all of the Foundation's books, records and documents of every kind and to inspect the physical properties of the Foundation. SECTION 4. MEMBERS' INSPECTION RIGHTS Members of the Foundation shall have the following inspection rights, but only for a purpose reasonably related to such person's interest as a Member of the Foundation:
SECTION 5. RIGHT TO COPY AND MAKE EXTRACTS Any inspection under the provisions of this Article may be made in person or by agent or attorney and the right to inspection includes the right to copy and make extracts. SECTION 6. ANNUAL REPORT TO THE DIRECTORS The Foundation shall cause an annual report to be prepared and furnished to the Directors not later than one hundred and twenty (120) days after the close of the Foundation's fiscal year and, upon payment of reasonable copying costs, to any Member who requests it in writing, which report shall contain the following information in appropriate detail:
The annual report shall be accompanied by any report thereon of independent accountants, or, if there is no such report, the certificate of an authorized officer of the Foundation that such statements were prepared without audit from the books and records of the Foundation. SECTION 7. ANNUAL STATEMENT OF SPECIFIC TRANSACTIONS The Foundation must furnish a statement to its Members and Directors by mailing or otherwise delivering it to them within one hundred and twenty (120) days after the close of its fiscal year. Said statement shall briefly describe:
SECTION 8. ANNUAL REPORTS TO THIRD PARTIES
SECTION . EXEMPT ACTIVITIES Notwithstanding any other provision of these Bylaws, no Member, trustee, officer, employee, Director, Delegate or representative of this Foundation shall take any action or carry on any activity by or on behalf of the Foundation not permitted to be taken or carried on by an organization exempt under section 501(c)(3) of the Internal Revenue Code and its regulations as they now exist or as they may hereafter be amended, or by an organization, contributions to which are deductible under section 170(c)(2) of the Internal Revenue Code and regulations as they now exist or as they may hereafter be amended. ARTICLE TWELVE
SECTION 1. DEFINITIONS A "CONFLICT OF INTEREST" is any circumstance described in Section 2 of this Article, or such substantially similar circumstances. An "INTERESTED PERSON" is any person serving as a Director, Officer, Delegate, employee, or member of a committee of the Board. A "FAMILY MEMBER" is a brother, sister, ancestor, descendant, spouse, domestic partner, brother-in-law, sister-in-law, son-in-law, daughter-in-law, mother-in-law, or father-in-law of an Interested Person. A "FINANCIAL INTEREST" in an entity is a direct or indirect financial interest, which, in view of all the circumstances, would, or reasonably could, affect an Interested Person's or Family Member's judgment with respect to transactions to which the entity is a party. SECTION 2. CONFLICT OF INTEREST DEFINED A Conflict of Interest exists where the financial or business interests of an Interested Person are or may be inconsistent with the best interests of the Foundation. The following circumstances shall be deemed to create a Conflict of Interest:
SECTION 3. DISCLOSURES, FINDINGS AND APPROVAL PROCEDURES An Interested Person must disclose in writing all material facts related to an actual or potential Conflict of Interest to the Board and/or the members of a committee considering a proposed contract or transaction to which the Conflict of Interest relates. If a contract or transaction is not being considered by the Board or a committee, the required disclosure must be made to the Board Chair. Until a Conflict of Interest has been voted upon by the Board in accordance with this Section, an Interested Person shall refrain from any action that might affect the Foundation's participation in any contract or transaction affected by a Conflict of Interest. After disclosure of the Conflict of Interest and all material facts, and after the Interested Person responds to any questions that the Board may have regarding the Conflict of Interest, the Board shall discuss the matter, , outside the Interested Party's presence, and vote on the contract or transaction in question. An Interested Person may not vote on the contract or transaction to which the Conflict of Interest relates, but may be counted in determining the presence of a quorum for purposes of the vote. The Board shall determine by a majority vote of the disinterested directors whether a Conflict of Interest exists and, if so, whether it is in the Foundation's best interest to nonetheless enter into the contract or transaction. If appropriate, the Chairperson may appoint a disinterested person or committee to investigate alternatives to a proposed contract or transaction. In order to approve the contract or transaction, the Board must in good faith after reasonable investigation make the following determinations: (1) that the contract or transaction is for the benefit of the Foundation; and (2) that the contract or transaction is fair and reasonable; and (3) that the Foundation is not likely to obtain a more advantageous arrangement with reasonable effort under the circumstances.
The minutes of the Board or committee meeting shall reflect: (3) that the Conflict of Interest was disclosed; (4) the Board or committee's decision regarding the Conflict of Interest, including a statement that the Interested Person was not present during the final discussion and vote; and (5) that the Interested Person abstained from voting. SECTION 4. VIOLATIONS OF THE CONFLICTS OF INTEREST PROCEDURES If the Board or committee believes that an Interested Person has failed to disclose an actual or potential Conflict of Interest, it shall inform the Interested Person of the basis for such belief and afford the Interested Person an opportunity to explain the alleged failure to disclose. If, after hearing the response of the Interested Person and making any further investigation the Board reasonably believes is warranted in the circumstances, the Board determines that the Interested Person has in fact failed to disclose an actual or potential Conflict of Interest, it shall take that action it believes to be appropriate in light of the circumstances action. ARTICLE THIRTEEN
SECTION 1. METHOD
The Members of the Foundation may elect to voluntary dissolve the Foundation in the following manner.
SECTION 2. DISPOSITION OF ASSETS Upon the dissolution of the Foundation, the Board shall, after paying or making provisions for payment of all known debts and liabilities of the Foundation, dispose of the assets in a manner consistent with the Foundation's mission as set forth in its Articles of Incorporation and/or to such organization(s) as shall at the time appear devoted to the same mission as this Foundation, subject to the approval of the Attorney General. SECTION 3. NO BENEFIT SHALL INURE TO ANY MEMBER, DIRECTOR, OFFICER OR EMPLOYEE OF THE CORPORATION No Member, Director, Delegate, officer, employee, or other person connected with the Foundation, or any private individual, shall receive at any time any of the net earnings or pecuniary profit from the operations of the Foundation, provided, however, that this provision shall not prevent payment to any such person of reasonable compensation for services performed for the Foundation in effecting any of its public or charitable purposes, provided that such compensation is otherwise permitted by these Bylaws or is fixed by resolution or approval of the Board. No person(s) shall be entitled to share in the distribution of, and shall not receive, any of the corporate assets on dissolution of the Foundation. All Members of the Foundation shall be deemed to have expressly consented and agreed that on such dissolution or winding up of the affairs of the Foundation, whether voluntarily or involuntarily, the assets of the Foundation, after all debts have been satisfied, shall be distributed as required by the Articles of Incorporation, Bylaws and/or California law and not otherwise.
ARTICLE FOURTEEN
Robert's Rules of Order (revised edition) shall apply solely with regards to the conducting of any meeting of the Board, LSB or committee. ARTICLE FIFTEEN
SECTION 1. AMENDMENT OF BYLAWS
SECTION 2. AMENDMENT OF ARTICLES OF INCORPORATION
CERTIFICATION OF BYLAWS THIS IS TO CERTIFY, that I am the duly elected, qualified and acting Secretary of PACIFICA FOUNDATION, a California non-profit corporation, and that the foregoing First Amended and Restated Bylaws were adopted for the Foundation by the Board of Directors and at least two-thirds of the Foundation's local radio stations on _____ ___, 2003. IN WITNESS WHEREOF, I have hereto set my hand this ____TH day of_____, 2003.
__________________________________ ___________________________ Secretary ------------------------
• Lawyer's accompanying letter to Pacifica [ html - 29kb ] [ MS Word - 70kb ]
|
top of page | bylaws revisions process info page | governance proposals | bylaws etc | home |