A California Nonprofit Public Benefit Corporation
Table of Contents
ARTICLE 1 NAME.. 1
Section 1.1 Corporate Name. 1
ARTICLE 2 OFFICES. 1
Section 2.1 Principal Office. 1
Section 2.2 Other Offices. 1
ARTICLE 3 PURPOSES. 1
Section 3.1 General Purpose. 1
Section 3.2 Specific Purpose. 1
ARTICLE 4 LIMITATIONS. 1
Section 4.1 Political Activities. 1
Section 4.2 Prohibited Activities. 1
ARTICLE 5 DEDICATION OF ASSETS. 2
Section 5.1 Property Dedicated to Nonprofit Purposes. 2
Section 5.2 Distribution of Assets Upon Dissolution.. 2
ARTICLE 6 MEMBERSHIPS. 2
Section 6.1 Members. 2
Section 6.2 Non-Voting Members. 2
ARTICLE 7 DIRECTORS. 2
Section 7.1 Number and Qualifications. 2
7.1.1 Number 2
7.1.2 Qualifications. 2
Section 7.2 Corporate Powers Exercised by Board.. 2
Section 7.3 Terms; Election of Successors. 3
Section 7.4 Vacancies. 3
7.4.1 Events Causing Vacancy. 3
7.4.2 Removal 3
7.4.3 No Removal on Reduction of Number of Directors. 3
7.4.4 Resignations. 3
7.4.5 Election to Fill Vacancies. 4
Section 7.5 Regular Meetings. 4
Section 7.6 Special Meetings. 4
Section 7.7 Notice of Meetings. 4
7.7.1 Manner of Giving. 4
7.7.2 Time Requirements. 4
7.7.3 Notice Contents. 4
Section 7.8 Place of Board Meetings. 5
7.8.1 Meetings by Telephone or Similar Communication Equipment 5
Section 7.9 Quorum and Action of the Board.. 5
7.9.1 Quorum… 5
7.9.2 Minimum Vote Requirements for Valid Board Action. 5
7.9.3 When a Greater Vote Is Required for Valid Board Action. 5
Section 7.10 Waiver of Notice. 5
Section 7.11 Adjournment. 6
Section 7.12 Notice of Adjournment. 6
Section 7.13 Conduct of Meetings. 6
Section 7.14 Action Without Meeting.. 6
Section 7.15 Fees and Compensation of Directors. 6
Section 7.16 Non-Liability of Directors. 7
ARTICLE 8 COMMITTEES. 7
Section 8.1 Committees of Directors. 7
Section 8.2 Meetings and Action of Board Committees. 7
Section 8.3 Quorum Rules for Board Committees. 7
Section 8.4 Revocation of Delegated Authority.. 8
Section 8.5 Nonprofit Integrity Act/Audit Committee. 8
Section 8.6 Advisory Committees. 8
ARTICLE 9 OFFICERS. 8
Section 9.1 Officers. 8
Section 9.2 Election of Officers. 9
Section 9.3 Removal of Officers. 9
Section 9.4 Resignation of Officers. 9
Section 9.5 Vacancies in Offices. 9
Section 9.6 Responsibilities of Officers. 9
9.6.1 Chairperson of the Board. 9
9.6.2 President 9
9.6.3 Vice President 9
9.6.4 Secretary. 9
9.6.5 Chief Financial Officer 10
9.6.6 Additional Officers. 11
Section 9.7 Chief Executive. 11
Section 9.8 Compensation of Officers. 11
9.8.1 Salaries Fixed by Board. 11
9.8.2 Fairness of Compensation. 11
ARTICLE 10 TRANSACTIONS BETWEEN CORPORATION AND DIRECTORS OR OFFICERS. 11
Section 10.1 Transactions with Directors and Officers. 11
10.1.1 Interested Party Transactions. 11
10.1.2 Requirements to Authorize Interested Party Transactions. 11
10.1.3 Material Financial Interest 12
Section 10.2 Loans to Directors and Officers. 12
Section 10.3 Interlocking Directorates. 12
Section 10.4 Duty of Loyalty; Construction with Article 11. 13
ARTICLE 11 INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS. 13
Section 11.1 Definitions. 13
11.1.1 “Agent”. 13
11.1.2 “Proceeding”. 13
11.1.3 “Expenses”. 13
Section 11.2 Applicability of Indemnification Provisions. 13
11.2.1 Successful Defense by Agent 13
11.2.2 Settlement or Unsuccessful Defense by Agent 13
Section 11.3 Actions Brought by Persons Other than the Corporation.. 13
11.3.1 Scope of Indemnification in Third Party Proceedings. 13
11.3.2 Required Standard of Conduct For Indemnification in Third Party Proceedings. 14
Section 11.4 Action Brought By or On Behalf Of the Corporation.. 14
11.4.1 Scope of Indemnification in Proceeding By or On Behalf Of the Corporation. 14
11.4.2 Required Standard of Conduct For Indemnification in Proceeding By or On Behalf Of the Corporation 14
11.4.3 Claims Settled Out of Court 14
11.4.4 Claims and Suits Awarded Against Agent 14
Section 11.5 Determination of Agent’s Good Faith Conduct. 15
Section 11.6 Limitations. 15
Section 11.7 Advance of Expenses. 15
Section 11.8 Contractual Rights of Non-Directors and Non-Officers. 15
Section 11.9 Insurance. 15
ARTICLE 12 CORPORATE RECORDS, REPORTS AND SEAL.. 15
Section 12.1 Minute Book.. 15
Section 12.2 Books and Records of Account. 16
Section 12.3 Articles of Incorporation and Bylaws. 16
Section 12.4 Maintenance and Inspection of Federal Tax Exemption Application and Annual Information Returns. 16
Section 12.5 Annual Report; Statement of Certain Transactions. 16
Section 12.6 Directors’ Rights of Inspection.. 16
Section 12.7 Corporate Seal. 17
ARTICLE 13 EXECUTION OF INSTRUMENTS, DEPOSITS AND FUNDS. 17
Section 13.1 Execution of Instruments. 17
Section 13.2 Checks and Notes. 17
Section 13.3 Deposits. 17
Section 13.4 Gifts. 17
ARTICLE 14 CONSTRUCTION AND DEFINITIONS. 17
ARTICLE 15 AMENDMENTS. 17
Section 15.1 Amendment by Directors. 17
Certificate of Secretary.. 18
Defined Terms Used In This Document
“annual meeting” – Section 7.5
“Articles of Incorporation” – Section 7.2
“Attorney General” – Section 7.4.4
“Board” – Section 7.2
“California Nonprofit Corporation Law” – Section 3.1
“Chairperson” – Section 9.6.1
“Chief Financial Officer” – Section 9.6.5
“Code” –Section 4.2
“Committees” – Section 8.1
“Corporation” – Section 1.1
“Directors” – Section 7.1.1
“e-mail” – Section 7.7.1
“Officers” – Section 9.1
“President” – Section 9.6.2
“Secretary” – Section 9.6.4
“Vice President” – Section 9.6.3
The name of this corporation is NORCANNA LLC (the “Corporation”).
The principal office for the transaction of the business of the Corporation may be established at any place or places within or without the State of California by resolution of the Board.
The Board may at any time establish branch or subordinate offices at any place or places where the Corporation is qualified to transact business.
The Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Corporation Law of California (“California Nonprofit Corporation Law”) for [charitable] purposes.
The specific purpose of the Corporation shall include without limitation, to pervade high grade medical cannabis to our members.
The Corporation has been formed under California Nonprofit Corporation Law for the charitable purposes described in Article 3, and it shall be nonprofit and nonpartisan. No substantial part of the activities of the Corporation shall consist of carrying on propaganda, or otherwise attempting to influence legislation, and the Corporation shall not participate in or intervene in any political campaign (including the publishing or distribution of statements) on behalf of, or in opposition to, any candidate for public office.
The Corporation shall not, except in any insubstantial degree, engage in any activities or exercise any powers that are not in furtherance of the purposes described in Article 3. The Corporation may not carry on any activity for the profit of its Officers, Directors or other persons or distribute any gains, profits or dividends to its Officers, Directors or other persons as such. Furthermore, nothing in Article 3 shall be construed as allowing the Corporation to engage in any activity not permitted to be carried on
DEDICATION OF ASSETS
Property Dedicated to Nonprofit Purposes
The property of the Corporation is irrevocably dedicated to [charitable] purposes. No part of the net income or assets of the Corporation shall ever inure to the benefit of any of its Directors or Officers, or to the benefit of any private person, except that the Corporation is authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes set forth in Article 3 hereof.
Distribution of Assets Upon Dissolution
Upon the dissolution or winding up of the Corporation, its assets remaining after payment, or provision for payment, of all debts and liabilities of the Corporation shall be distributed to a nonprofit fund, foundation, or corporation which is organized and operated exclusively for [charitable] purposes..
The Corporation shall have no members within the meaning of section 5056 of the California Nonprofit Corporation Law.
The Board may adopt policies and procedures for the admission of associate members or other designated members who shall have no voting rights in the Corporation. Such associate or other members are not “members” of the Corporation as defined in section 5056 of the California Nonprofit Corporation Law.
Number and Qualifications
The authorized number of directors of the Corporation (“Directors”) shall be not less than ONE nor more than SIX, the exact authorized number to be fixed, within these limits, by resolution of the Board or Founder of NORCANNA.
To be determined by the founder of NORCANNA LLC
Corporate Powers Exercised by Board
Subject to the provisions of the Articles of Incorporation of the Corporation (the “Articles of Incorporation”), California Nonprofit Corporation Law and any other applicable laws, the business and affairs of the Corporation shall be managed, and all corporate powers shall be exercised, by or under the direction of the board of Director/Founder (the “Board”). The Board may delegate the management of the activities of the Corporation to any person or persons, management company or committee however composed, provided that the activities and affairs of the Corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the Founder.
Terms; Election of Successors
[Alternative 1: Directors shall be elected at each annual meeting of the Board for ten year terms unless changed by the founder of NORCANNA. Each Director, including a Director elected to fill a vacancy, shall hold office until the expiration of the term for which he or she was elected and until the election and qualification of a successor, or until that Director’s earlier resignation or removal in accordance with these Bylaws and California Nonprofit Corporation Law. By resolution, the Board may arrange for terms to be staggered.]
Events Causing Vacancy
A vacancy or vacancies on the Board shall be deemed to exist on the occurrence of the following: (i) the death, resignation, or removal of any Director; (ii) whenever the number of authorized Directors is increased; or (iii) the failure of the Board, at any meeting at which any Director or
Directors are to be elected, to elect the full authorized number of Directors.
The Board may by resolution declare vacant the office of a Director who has been declared of unsound mind by an order of court, or convicted of a felony, or found by final order or judgment of any court to have breached a duty under California Nonprofit Corporation Law.
[The Board/Founder may by resolution declare vacant the office of a director who fails to attend (3) [consecutive] Board meetings [during any calendar year].]
[The Board may, by a majority vote of the Directors who meet all of the required qualifications to be a Director set forth in Section 7.1.2, declare vacant the office of any Director who fails or ceases to meet any required qualification that was in effect at the beginning of that Director’s current term of office.]
Directors may be removed without cause by a majority of Directors then in office.
No Removal on Reduction of Number of Directors
No reduction of the authorized number of Directors shall have the effect of removing any Director before that Director’s term of office expires.
Except as provided in this Section 7.4.4, any Director may resign by giving written notice to the Chairperson, the President, the Secretary, or the Board. Such a written resignation will be effective on the later of (i) the date it is delivered or (ii) the time specified in the written notice that the resignation is to become effective. No Director may resign if the Corporation would then be left without a duly elected Director or Directors in charge of its affairs, except upon notice to the California Attorney General (the “Attorney General”).
Election to Fill Vacancies
If there is a vacancy on the Board, including a vacancy created by the removal of a Director, the Board may fill such vacancy by electing an additional director as soon as practicable after the vacancy occurs. If the number of Directors then in office is less than a quorum, additional directors may be elected to fill such vacancies by (i) the unanimous written consent of the Directors then in office, (ii) the affirmative vote of a majority of the Directors in office at a meeting held according to notice or waivers complying with section 5211 of the California Nonprofit Corporation Law, or (iii) a sole remaining Director.
Each year, the Board shall hold at least one meeting, at a time and place fixed by the Board, for the purposes of election of Directors, appointment of Officers, review and approval of the corporate budget and transaction of other business. This meeting is sometimes referred to in these Bylaws as the “annual meeting.” Other regular meetings of the Board may be held at such time and place as the Board may fix from time to time by resolution.
Special meetings of the Board for any purpose may be called at any time by the Chairperson, or the President, or the Vice President (if any), or the Secretary, or any two Directors.
Notice of Meetings
Manner of Giving
Except when the time and place of a regular meeting is set by the Board by resolution in advance (as permitted by Section 7.5), notice of the time and place of all regular and special meetings shall be given to each Director by one of the following methods:
(a) Personal delivery of oral or written notice;
(b) First-class mail, postage paid;
(c) Telephone, including a voice messaging system or other system or technology designed to record and communicate messages; or
(d) Facsimile, electronic mail (“e-mail”) or other means of electronic transmission if the recipient has consented to accept notices in this manner.
All such notices shall be given or sent to the Director’s address, phone number, facsimile number or e-mail address as shown on the records of the Corporation. Any oral notice given personally or by telephone may be communicated directly to the Director or to a person who would reasonably be expected to promptly communicate such notice to the Director. Notice of regular meetings may be given in the form of a calendar or schedule that sets forth the date, time and place of more than one regular meeting.
Notices sent by first-class mail shall be deposited into a United States mail box at least four days before the time set for the meeting. Notices given by personal delivery, telephone, voice messaging system or other system or technology designed to record and communicate messages, facsimile, e-mail or other electronic transmission shall be delivered at least 48 hours before the time set for the meeting.
The notice shall state the time and place for the meeting, except that if the meeting is scheduled to be held at the principal office of the Corporation, the notice shall be valid even if no place is specified. The notice need not specify the purpose of the meeting unless required to elsewhere in these Bylaws.
Place of Board Meetings
Regular and special meetings of the Board may be held at any place within or outside the state that has been designated in the notice of the meeting, or, if not stated in the notice or, if there is no notice, designated by resolution of the Board. If the place of a regular or special meeting is not designated in the notice or fixed by a resolution of the Board, it shall be held at the principal office of the Corporation.
Meetings by Telephone or Similar Communication Equipment
Any meeting may be held by conference telephone or other communications equipment permitted by California Nonprofit Corporation Law, as long as all Directors participating in the meeting can communicate with one another and all other requirements of California Nonprofit Corporation Law are satisfied. All such Directors shall be deemed to be present in person at such meeting.
Quorum and Action of the Board
A majority of Directors then in office (but no fewer than two Directors or one-fifth of the authorized number in Section 7.1.1, whichever is greater) shall constitute a quorum for the transaction of business, except to adjourn as provided in Section 7.11.
Minimum Vote Requirements for Valid Board Action
Every act taken or decision made by a vote of the majority of the Directors present at a meeting duly held at which a quorum is present is the act of the Board, unless a greater number is expressly required by California Nonprofit Corporation Law, the Articles of Incorporation or these Bylaws. A meeting at which a quorum is initially present may continue to transact business, notwithstanding the withdrawal of Directors from the meeting, if any action taken is approved by at least a majority of the required quorum for that meeting.
When a Greater Vote Is Required for Valid Board Action
The following actions shall require a vote by a majority of all Directors then in office in order to be effective:
(a) Approval of contracts or transactions in which a Director has a direct or indirect material financial interest as described in Section 10.1 (provided that the vote of any interested Director(s) is not counted);
(b) Creation of, and appointment to, Committees (but not advisory committees) as described in Section 8.1;
(c) Removal of a Director without cause as described in Section 7.4.2; and
(d) Indemnification of Directors as described in Article 11.
Waiver of Notice
The transactions of any meeting of the Board, however called and noticed or wherever held, shall be as valid as though taken at a meeting duly held after regular call and notice, if (i) a quorum is present, and (ii) either before or after the meeting, each of the Directors who is not present at the meeting signs a written waiver of notice, a consent to holding the meeting, or an approval of the minutes. The waiver of notice or consent does not need to specify the purpose of the meeting. All waivers, consents, and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Also, notice of a meeting is not required to be given to any Director who attends the meeting without protesting before or at its commencement about the lack of adequate notice. Directors can protest the lack of notice only by presenting a written protest to the Secretary either in person, by first-class mail addressed to the Secretary at the principal office of the Corporation as contained on the records of the Corporation as of the date of the protest, or by facsimile addressed to the facsimile number of the Corporation as contained on the records of the Corporation as of the date of the protest.
A majority of the Directors present, whether or not constituting a quorum, may adjourn any meeting to another time and place.
Notice of Adjournment
Notice of the time and place of holding an adjourned meeting need not be given, unless the meeting is adjourned for more than 24 hours, in which case personal notice of the time and place shall be given before the time of the adjourned meeting to the Directors who were not present at the time of the adjournment.
Conduct of Meetings
Meetings of the Board shall be presided over by the Chairperson, or, if there is no Chairperson or the Chairperson is absent, the President or, if the President and Chairperson are both absent, by the Vice President (if any) or, in the absence of each of these persons, by a chairperson of the meeting, chosen by a majority of the Directors present at the meeting. The Secretary shall act as secretary of all meetings of the Board, provided that, if the Secretary is absent, the presiding officer shall appoint another person to act as secretary of the meeting. Meetings shall be governed by rules of procedure as may be determined by the Board from time to time, insofar as such rules are not inconsistent with or in conflict with these Bylaws, with the Articles, or with any provisions of law applicable to the Corporation.
Action Without Meeting
Any action required or permitted to be taken by the Board may be taken without a meeting, if all members of the Board, individually or collectively, consent in writing to the action. For the purposes of this Section 7.14 only, “all members of the Board” shall not include any “interested Director” as defined in section 5233 of the California Nonprofit Corporation Law. Such written consent shall have the same force and effect as a unanimous vote of the Board taken at a meeting. Such written consent or consents shall be filed with the minutes of the proceedings of the Board.
Written consent may be transmitted by first-class mail, messenger, courier, facsimile, e-mail or any other reasonable method satisfactory to the Chairperson or the President.
Fees and Compensation of Directors
The Corporation shall not pay any compensation to Directors for services rendered to the Corporation as Directors, except that Directors may be reimbursed for expenses incurred in the performance of their duties to the Corporation, in reasonable amounts as approved by the Board OR Founder.
Also, Directors may not be compensated for rendering services to the Corporation in a capacity other than as Directors, unless such compensation is reasonable and further provided that not more than 49% of the persons serving as Directors may be “interested persons” which, for purposes of this Section 7.15 only, means:
(a) any person currently being compensated by the Corporation for services rendered to it within the previous 12 months, whether as a full or part-time Officer or other employee, independent contractor, or otherwise, excluding any reasonable compensation paid to a Director as Director; or
(b) any brother, sister, ancestor, descendant, spouse, brother-in-law, sister-in-law, son-in-law, daughter-in-law, mother-in-law, or father-in-law of any such person.
Non-Liability of Directors
The Directors shall not be personally liable for the debts, liabilities, or other obligations of the Corporation.
Committees of Directors
The Board may, by resolution adopted by a majority of the Directors then in office, create one or more Board Committees (“Committees”), including an executive committee, each consisting of two or more Directors, to serve at the discretion of the Board. Any Committee, to the extent provided in the resolution of the Board, may be given the authority of the Board except that no Committee may:
(a) approve any action for which the California Nonprofit Corporation Law also requires approval of the members or approval of a majority of all members;
(b) fill vacancies on the Board or in any Committee which has the authority of the Board;
(c) fix compensation of the Directors for serving on the Board or on any Committee;
(d) amend or repeal Bylaws or adopt new Bylaws;
(e) amend or repeal any resolution of the Board which by its express terms is not so amendable or repealable;
(f) appoint any other Committees or the members of these Committees;
(g) expend corporate funds to support a nominee for Director after more persons have been nominated than can be elected; or
(h) approve any transaction (i) between the Corporation and one or more of its Directors or (ii) between the Corporation or any entity in which one or more of its Directors have a material financial interest.
Meetings and Action of Board Committees
Meetings and action of Committees shall be governed by, and held and taken in accordance with, the provisions of Article 7 concerning meetings of Directors, with such changes in the context of Article 7 as are necessary to substitute the Committee and its members for the Board and its members, except that the time for regular meetings of Committees may be determined by resolution of the Board, and special meetings of Committees may also be called by resolution of the Board. Minutes shall be kept of each meeting of any Committee and shall be filed with the corporate records. The Committee shall report to the Board from time to time as the Board may require. The Board may adopt rules for the governance of any Committee not inconsistent with the provisions by these Bylaws. In the absence of rules adopted by the Board, the Committee may adopt such rules.
Quorum Rules for Board Committees
A majority of the Committee members shall constitute a quorum for the transaction of Committee business, except to adjourn. A majority of the Committee members present, whether or not constituting a quorum, may adjourn any meeting to another time and place. Every act taken or decision made by a majority of the Committee members present at a meeting duly held at which a quorum is present shall be regarded as an act of the Committee, subject to the provisions of the California Nonprofit Corporation Law relating to actions that require a majority vote of the entire Board. A meeting at which a quorum is initially present may continue to transact business, notwithstanding the withdrawal of Committee members, if any action taken is approved by at least a majority of the required quorum for that meeting.
Revocation of Delegated Authority
The Board may, at any time, revoke or modify any or all of the authority that the Board has delegated to a Committee, increase or decrease (but not below two) the number of members of a Committee, and fill vacancies in a Committee from the members of the Board.
Nonprofit Integrity Act/Audit Committee
In any fiscal year in which the Corporation receives or accrues gross revenues of two million dollars or more (excluding grants from, and contracts for services with, governmental entities for which the governmental entity requires an accounting of the funds received), the Board shall (i) prepare annual financial statements using generally accepted accounting principles that are audited by an independent certified public accountant (“CPA”) in conformity with generally accepted auditing standards; (ii) make the audit available to the Attorney General and to the public on the same basis that the Internal Revenue Service Form 990 is required to be made available; and (iii) appoint an Audit Committee.
The Audit Committee shall not include staff or employees of the Corporation, the President or chief executive or the Chief Financial Officer or treasurer (if any). If there is a finance committee, members of the finance committee shall constitute less than 50% of the membership of the Audit Committee and the chairperson of the Audit Committee shall not be a member of the finance committee. Subject to the supervision of the Board, the Audit Committee shall:
(a) make recommendations to the Board on the hiring and firing of the CPA;
(b) confer with the CPA to satisfy Audit Committee members that the financial affairs of the Corporation are in order;
(c) approve non-audit services by the CPA and ensure such services conform to standards in the Yellow Book issued by the United States Comptroller General; and
(d) if requested by the Board, negotiate the CPA’s compensation on behalf of the Board.
The Board may create one or more advisory committees to serve at the pleasure of the Board. Appointments to such advisory committees need not, but may, be Directors. The Board shall appoint and discharge advisory committee members. All actions and recommendations of an advisory committee shall require ratification by the Board before being given effect.
The officers of the Corporation (“Officers”) shall be either a President or a Chairperson, or both, a Secretary, and a Chief Financial Officer. Other than the Chairperson, these persons may, but need not be, selected from among the Directors. The Board shall have the power to designate additional Officers, including a Vice President, who also need not be Directors, with such duties, powers, titles and privileges as the Board may fix, including such Officers as may be appointed in accordance with Section 9.6.6. Any number of offices may be held by the same person, except that neither the Secretary nor the Chief Financial Officer may serve concurrently as either the President or the Chairperson.
Election of Officers
The Officers, except those appointed in accordance with Section 9.6.6, shall be elected by the Board at the annual meeting of the Corporation for a term of one year, and each shall serve at the discretion of the Board until his or her successor shall be elected, or his or her earlier resignation or removal. Officers may be elected fen consecutive terms.
Removal of Officers
Subject to the rights, if any, of an Officer under any contract of employment, any Officer may be removed, with or without cause, (a) by the Board, at any regular or special meeting of the Board, or at the annual meeting of the Corporation, or (b) by an Officer on whom such power of removal may be conferred by the Board.
Resignation of Officers
Any Officer may resign at any time by giving written notice to the Corporation. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice; and, unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any of the Corporation under any contract to which the Officer is a party.
Vacancies in Offices
A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled in the manner prescribed in these Bylaws for regular appointments to that office, provided that such vacancies shall be filled as they occur and not on an annual basis. In the event of a vacancy in any office other than the President or one appointed in accordance with Section 9.6.6, such vacancy shall be filled temporarily by appointment by the President, or if none, by the Chairperson, and the appointee shall remain in office for 60 days, or until the next regular meeting of the Board, whichever comes first. Thereafter, the position can be filled only by action of the Board.
Responsibilities of Officers
Chairperson of the Board
The chairperson of the Board (the “Chairperson”), if any, shall be a Director and shall preside at meetings of the Board and exercise and perform such other powers and duties as may from time to time be assigned to him by the Board or prescribed by these Bylaws. If the Board designates both a Chairperson and a President, the Board shall, by resolution, establish the specific duties carried by each position.
The president of the Corporation (the “President”) shall, if there is no Chairperson, or in the Chairperson’s absence, preside at meetings of the Board and exercise and perform such other powers and duties as may from time to time be assigned to him by the Board or prescribed by these Bylaws. If no other person is designated as the chief executive, the President shall, in addition, be the chief executive and shall have the powers and duties prescribed in Section 9.7.
The vice president of the Corporation (the “Vice President”) shall, in the absence or disability of the President, perform all the duties of the President and, when so acting, have all the powers of and be subject to all the restrictions upon, the President. The Vice President shall have such other powers and perform such other duties as may be prescribed by the Board.
The secretary of the Corporation (the “Secretary”) shall attend to the following:
The Secretary shall certify and keep or cause to be kept at the principal office of the Corporation the original or a copy of these Bylaws as amended to date.
The Secretary shall keep or cause to be kept a minute book as described in Section 12.1.
The Secretary shall give, or cause to be given, notice of all meetings of the Board in accordance with these Bylaws.
Upon request, the Secretary shall exhibit or cause to be exhibited at all reasonable times to any Director, or to his or her agent or attorney, these Bylaws and the minute book.
Corporate Seal and Other Duties
The Secretary shall keep or cause to be kept the seal of the Corporation, if any, in safe custody, and shall have such other powers and perform such other duties incident to the office of Secretary as may be prescribed by the Board or these Bylaws.
Chief Financial Officer
The chief financial officer of the Corporation (the “Chief Financial Officer”) shall attend to the following:
Books of Account
The Chief Financial Officer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and transactions of the Corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings, and other matters customarily included in financial statements. The books of account shall be open to inspection by any Director at all reasonable times.
The Chief Financial Officer shall prepare, or cause to be prepared, and certify, or cause to be certified, the financial statements to be included in any required reports.
Deposit and Disbursement of Money and Valuables
The Chief Financial Officer shall deposit, or cause to be deposited, all money and other valuables in the name and to the credit of the Corporation with such depositories as may be designated by the Board; shall disburse, or cause to be disbursed, the funds of the Corporation as may be ordered by the Board; shall render, or cause to be rendered to the President and Directors, whenever they request it, an account of all of his or her transactions as Chief Financial Officer and of the financial condition of the Corporation; and shall have other powers and perform such other duties incident to the office of Chief Financial Officer as may be prescribed by the Board or these Bylaws.
If required by the Board, the Chief Financial Officer shall give the Corporation a bond in the amount and with the surety or sureties specified by the Board for faithful performance of the duties of his office and for restoration to the Corporation of all its books, papers, vouchers, money, and other property of every kind in his possession or under his control on his death, resignation, retirement, or removal from office.
The Board may empower the Chairperson, President, or chief executive, to appoint or remove such other Officers as the business of the Corporation may require, each of whom shall hold office for such period, have such authority, and perform such duties as are provided in these Bylaws or as the Board from time to time may determine.
Subject to such supervisory powers as may be given by the Board to the Chairperson or President, the Board may hire a chief executive who shall be the general manager of the Corporation, and subject to the control of the Board, shall supervise, direct and control the Corporation’s day-to-day activities, business and affairs. The chief executive (who may be referred to as the “chief executive officer” or “executive director” or Founder shall be empowered to hire, supervise and fire all of the employees of the Corporation, under such terms and having such job responsibilities as the chief executive shall determine in his or her sole discretion, subject to the rights, if any, of the employee under any contract of employment. The chief executive may delegate his or her responsibilities and powers subject to the control of the Board. He or she shall have such other powers and duties as may be prescribed by the Board or these Bylaws. Additionally, the Board may, by resolution, appoint the chief executive as an Officer.
Compensation of Officers
Salaries Fixed by Board
The salaries of Officers, if any, shall be fixed from time to time by resolution of the Board or by the person or Committee or Founder to whom the Board has delegated this function, and no Officer shall be prevented from receiving such salary by reason of the fact that he or she is also a Director, provided, however, that such compensation paid a Director for serving as an Officer shall only be allowed if permitted under the provisions of Section 7.15. In all cases, any salaries received by Officers shall be reasonable and given in return for services actually rendered for the Corporation which relate to the performance of the public benefit purposes of the Corporation. No salaried Officer serving as a Director shall be permitted to vote on his or her own compensation as an Officer.
Fairness of Compensation
The Board shall periodically review the fairness of compensation, including benefits, paid to the President and Chief Financial Officer (i) once the Officer is hired; (ii) upon any extension or renewal of the Officer’s term of employment; and (iii) when the Officer’s compensation is modified (unless all employees are subject to the same general modification of compensation).
TRANSACTIONS BETWEEN CORPORATION AND DIRECTORS OR OFFICERS
Transactions with Directors and Officers
Interested Party Transactions
Except as described in Section 10.1.2, the Corporation shall not be a party to any transaction:
(a) in which one or more of its Directors or Officers has a material financial interest, or
(b) with any corporation, firm, association, or other entity in which one or more Directors or Officers has a material financial interest.
Requirements to Authorize Interested Party Transactions
The Corporation shall not be a party to any transaction described in 10.1.1 unless:
(a) the Corporation enters into the transaction for its own benefit;
(b) the transaction is fair and reasonable to the Corporation at the time the transaction is entered into;
(c) prior to consummating the transaction or any part thereof, the Board authorizes or approves the transaction in good faith, by a vote of a majority of Directors then in office (without counting the vote of the interested Directors), and with knowledge of the material facts concerning the transaction and the interested Director’s or Officer’s financial interest in the transaction;
(d) prior to authorizing or approving the transaction, the Board considers and in good faith determines after reasonable investigation that the Corporation could not obtain a more advantageous arrangement with reasonable effort under the circumstances; and
(e) the minutes of the Board meeting at which such action was taken reflect that the Board considered and made the findings described in paragraphs (a) through (d) of this Section 10.1.2.
Material Financial Interest
A Director or Officer shall not be deemed to have a “material financial interest” in a transaction:
(a) that fixes the compensation of a Director as a Director or Officer;
(b) if the contract or transaction is part of a public or charitable program of the Corporation and it (1) is approved or authorized by the Corporation in good faith and without unjustified favoritism, and (2) results in a benefit to one or more Directors or their families only because they are in the class of persons intended to be benefited by the program; or
(c) where the interested Director has no actual knowledge of the transaction and it does not exceed the lesser of one percent of the gross receipts of the corporation for the preceding year or $100,000.
Loans to Directors and Officers
The Corporation shall not make any loan of money or property to or guarantee the obligation of any Director or Officer, unless approved by the Founder; except that, however, the Corporation may advance money to a Director or Officer for expenses reasonably anticipated to be incurred in the performance of duties of such Director or Officer, if in the absence of such advance, such Director or Officer would be entitled to be reimbursed for such expenses by the Corporation.
The limitation above does not apply if (a) the loan is necessary, in the judgment of the Board, to provide financing for the purchase of the principal residence of an Officer in order to secure the services of (or continued services of) the Officer and the loan is secured by real property located in California; or (b) the loan is for the payment of premiums on a life insurance policy on the life of a Director or Officer and repayment to the Corporation of the amount paid by it is secured by the proceeds of the policy and its cash surrender value.
No contract or other transaction between the Corporation and any corporation, firm or association of which one or more Directors are directors is either void or voidable because such Director(s) are present at the Board or Committee meeting that authorizes, approves or ratifies the contract or transaction, if (a) the material facts as to the transaction and as to such Director’s other directorship are fully disclosed or known to the Board or Committee, and the Board or Committee authorizes, approves or ratifies the contract or transaction in good faith by a vote sufficient without counting the vote of the common Director(s) (subject to the quorum provisions of Article 7); or if (b) the contract or transaction is just and reasonable as to the Corporation at the time it is authorized, approved or ratified.
Duty of Loyalty; Construction with Article 11
Nothing in this Article 10 shall be construed to derogate in any way from the absolute duty of loyalty that every Director and Officer owes to the Corporation. Furthermore, nothing in this Article 10 shall be construed to override or amend the provisions of Article 11. All conflicts between the two articles shall be resolved in favor of Article 11.
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
For purpose of this Article 11,
means any person who is or was a Director, Officer, employee, or other agent of the Corporation, or is or was serving at the request of the Corporation as a Director, Officer, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, or other enterprise, or was a Director, Officer, employee, or agent of a foreign or domestic corporation that was a predecessor corporation of the Corporation or of another enterprise at the request of the predecessor corporation;
means any threatened, pending, or completed action or proceeding, whether civil, criminal, administrative, or investigative; and
includes, without limitation, all attorneys’ fees, costs, and any other expenses reasonably incurred in the defense of any claims or proceedings against an Agent by reason of his or her position or relationship as Agent and all attorneys’ fees, costs, and other expenses reasonably incurred in establishing a right to indemnification under this Article 11.
Applicability of Indemnification Provisions
Successful Defense by Agent
To the extent that an Agent has been successful on the merits in the defense of any proceeding referred to in this Article 11, or in the defense of any claim, issue, or matter therein, the Agent shall be indemnified against expenses actually and reasonably incurred by the Agent in connection with the claim.
Settlement or Unsuccessful Defense by Agent
If an Agent either settles any proceeding referred to in this Article 11, or any claim, issue, or matter therein, or sustains a judgment rendered against him, then the provisions of Section 11.3 through Section 11.6 shall determine whether the Agent is entitled to indemnification.
Actions Brought by Persons Other than the Corporation
This Section 11.3 applies to any proceeding other than an action “by or on behalf of the corporation” as defined in Section 11.4. Such proceedings that are not brought by or on behalf of the Corporation are referred to in this Section 11.3 as “Third Party proceedings.”
Scope of Indemnification in Third Party Proceedings
Subject to the required findings to be made pursuant to Section 11.3.2, the Corporation [may OR shall] indemnify any person who was or is a party, or is threatened to be made a party, to any Third Party proceeding, by reason of the fact that such person is or was an Agent, for all expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with the proceeding.
Required Standard of Conduct For Indemnification in Third Party Proceedings
Any indemnification granted to an Agent in Section 11.3.1 above is conditioned on the following. The Board must determine, in the manner provided in Section 11.5, that the Agent seeking reimbursement acted in good faith, in a manner he or she reasonably believed to be in the best interest of the Corporation, and, in the case of a criminal proceeding, he or she must have had no reasonable cause to believe that his or her conduct was unlawful. The termination of any proceeding by judgment, order, settlement, conviction, or on a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith or in a manner he or she reasonably believed to be in the best interest of the Corporation or that he or she had reasonable cause to believe that his or her conduct was unlawful.
Action Brought By or On Behalf Of the Corporation
This Section 11.4 applies to any proceeding brought (i) by or in the right of the Corporation, or (ii) by an Officer, Director or person granted relator status by the Attorney General, or by the Attorney General, on the ground that the defendant Director was or is engaging in self-dealing within the meaning of section 5233 of the California Nonprofit Corporation Law, or (iii) by the Attorney General or person granted relator status by the Attorney General for any breach of duty relating to assets held in charitable trust (any such proceeding is referred to in these Bylaws as a proceeding “by or on behalf of the Corporation”).
Scope of Indemnification in Proceeding By or On Behalf Of the Corporation
Subject to the required findings to be made pursuant to Section 11.4.2, and except as provided in Sections 11.4.3 and 11.4.4, the Corporation may indemnify any person who was or is a party, or is threatened to be made a party, to any proceeding by or on behalf of the Corporation, by reason of the fact that such person is or was an Agent, for all expenses actually and reasonably incurred in connection with the defense or settlement of such action.
Required Standard of Conduct For Indemnification in Proceeding By or On Behalf Of the Corporation
Any indemnification granted to an Agent in Section 11.4.1 is conditioned on the following. The Board must determine, in the manner provided in Section 11.5, that the Agent seeking reimbursement acted in good faith, in a manner he or she believed to be in the best interest of the Corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.
Claims Settled Out of Court
If any Agent settles or otherwise disposes of a threatened or pending action brought by or on behalf of the Corporation, with or without court approval, the Agent shall receive no indemnification for amounts paid pursuant to the terms of the settlement or other disposition. Also, in cases settled or otherwise disposed of without court approval, the Agent shall receive no indemnification for expenses reasonably incurred in defending against the proceeding, unless the proceeding is settled with the approval of the Attorney General.
Claims and Suits Awarded Against Agent
If any Agent is adjudged to be liable to the Corporation in the performance of the Agent’s duty to the Corporation, the Agent shall receive no indemnification for amounts paid pursuant to the judgment, and any indemnification of such Agent under Section 11.4.1 for expenses actually and reasonably incurred in connection with the defense of that action shall be made only if both of the following conditions are met:
(a) The determination of good faith conduct required by Section 11.4.2 must be made in the manner provided for in Section 11.5; and
(b) Upon application, the court in which the action was brought must determine that, in view of all of the circumstances of the case, the Agent is fairly and reasonably entitled to indemnity for the expenses incurred. If the Agent is found to be so entitled, the court shall determine the appropriate amount of expenses to be reimbursed.
Determination of Agent’s Good Faith Conduct
The indemnification granted to an Agent in Section 11.3 and Section 11.4 is conditioned on the findings required by those Sections being made by:
(a) the Board by a majority vote of a quorum consisting of Directors who are not parties to the proceeding; or
(b) the court in which the proceeding is or was pending. Such determination may be made on application brought by the Corporation or the Agent or the attorney or other person rendering a defense to the Agent, whether or not the application by the Agent, attorney, or other person is opposed by the Corporation.
No indemnification or advance shall be made under this Article 11, except as provided in Sections 11.2.1 or 11.4.4(b), in any circumstances when it appears:
(a) that the indemnification or advance would be inconsistent with a provision of the Articles of Incorporation, as amended, or an agreement in effect at the time of the accrual of the alleged cause of action asserted in the proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or
(b) that the indemnification would be inconsistent with any condition expressly imposed by a court in approving a settlement.
Advance of Expenses
Expenses incurred in defending any proceeding may be advanced by the Corporation before the final disposition of the proceeding on receipt of an undertaking by or on behalf of the Agent to repay the amount of the advance unless it is determined ultimately that the Agent is entitled to be indemnified as authorized in this Article 11.
Contractual Rights of Non-Directors and Non-Officers
Nothing contained in this Article 11 shall affect any right to indemnification to which persons other than Directors and Officers of the Corporation, or any of its subsidiaries, may be entitled by contract or otherwise.
The Board may adopt a resolution authorizing the purchase and maintenance of insurance on behalf of any Agent, as defined in this Article 11, against any liability asserted against or incurred by any Agent in such capacity or arising out of the Agent’s status as such, whether or not the Corporation would have the power to indemnify the Agent against the liability under the provisions of this Article 11.
CORPORATE RECORDS, REPORTS AND SEAL
The Corporation shall keep a minute book in written form which shall contain a record of all actions by the Board or any committee including (i) the time, date and place of each meeting; (ii) whether a meeting is regular or special and, if special, how called; (iii) the manner of giving notice of each meeting and a copy thereof; (iv) the names of those present at each meeting of the Board or any Committee thereof; (v) the minutes of all meetings; (vi) any written waivers of notice, consents to the holding of a meeting or approvals of the minutes thereof; (vii) all written consents for action without a meeting; (viii) all protests concerning lack of notice; and (ix) formal dissents from Board actions.
Books and Records of Account
The Corporation shall keep adequate and correct books and records of account. “Correct books and records” includes, but is not necessarily limited to: accounts of properties and transactions, its assets, liabilities, receipts, disbursements, gains, and losses.
Articles of Incorporation and Bylaws
The Corporation shall keep at its principal office, the original or a copy of the Articles of Incorporation and Bylaws as amended to date.
Maintenance and Inspection of Federal Tax Exemption Application and Annual Information Returns
The Corporation shall at all times keep at its principal office a copy of its federal tax exemption application and, for three years from their date of filing, its annual information returns. These documents shall be open to public inspection and copying to the extent required by the Code.
Annual Report; Statement of Certain Transactions
The Board shall cause an annual report to be sent to each Director within 120 days after the close of the Corporation’s fiscal year containing the following information:
(a) The assets and liabilities of the Corporation as of the end of the fiscal year;
(b) The principal changes in assets and liabilities, including trust funds, during the fiscal year;
(c) The revenue or receipts of the Corporation, both unrestricted and restricted to particular purposes, for this fiscal year;
(d) The expenses or disbursements of the Corporation for both general and restricted purposes during the fiscal year;
(e) A statement of any transaction (i) to which the Corporation, its parent, or its subsidiary was a party, (ii) which involved more than $50,000 or which was one of a number of such transactions with the same person involving, in the aggregate, more than $50,000, and (iii) in which either of the following interested persons had a direct or indirect material financial interest (a mere common directorship is not a financial interest):
(1) Any Director or Officer of the Corporation, its parent, or its subsidiary;
(2) Any holder of more than 10% of the voting power of the Corporation, its parent, or its subsidiary.
The statement shall include: (i) a brief description of the transaction; (ii) the names of interested persons involved; (iii) their relationship to the Corporation; (iv) the nature of their interest in the transaction, and; (v) when practicable, the amount of that interest, provided that, in the case of a partnership in which such person is a partner, only the interest of the partnership need be stated.
(f) A brief description of the amounts and circumstances of any loans, guaranties, indemnifications, or advances aggregating more than $10,000 paid during the fiscal year to any Officer or Director under Article 10 or Article 11.
Directors’ Rights of Inspection
Every Director shall have the absolute right at any reasonable time to inspect the books, records, documents of every kind, physical properties, and records of the Corporation and each of its subsidiaries. The inspection may be made in person or by the Director’s agent or attorney. The right of inspection includes the right to copy and make extracts of documents.
The corporate seal, logo, shall be in such form as may be approved from time to time by the Board. Failure to affix the seal to corporate instruments, however, shall not affect the validity of any such instrument.
EXECUTION OF INSTRUMENTS, DEPOSITS AND FUNDS
Execution of Instruments
The Board, except as otherwise provided in these Bylaws, may by resolution authorize any Officer or agent of the Corporation to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances. Unless so authorized, no Officer, agent, or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable monetarily for any purpose or in any amount.
Checks and Notes
Except as otherwise specifically determined by resolution of the Board, or as otherwise required by law, checks, drafts, promissory notes, orders for the payment of money, and other evidence of indebtedness of the Corporation shall be signed by the Chief Financial Officer and countersigned by the President.
All funds of the Corporation shall be deposited from time to time to the credit of the Corporation in such banks, trust companies, or other depositories as the Board may select .
The Board may accept on behalf of the Corporation any contribution, gift, bequest, or devise for the charitable or public purposes of the Corporation.
CONSTRUCTION AND DEFINITIONS
Unless the context requires otherwise, the general provisions, rules of construction, and definitions of California Nonprofit Corporation Law shall govern the construction of these Bylaws. Without limiting the generality of the above, the masculine gender includes the feminine and neuter, the singular number includes the plural, the plural number includes the singular, and the term “person” includes both the Corporation and a natural person. All references to statutes, regulations and
laws shall include any future statutes, regulations and laws that replace those referenced.
Amendment by Directors
The Board may adopt, amend or repeal bylaws. Such power is subject to the following limitations:
(a) Where any provision of these Bylaws requires the vote of a larger proportion of the Directors than otherwise is required by law, such provision may not be altered, amended or repealed except by the vote of such greater number.
(b) No amendment may extend the term of a Director beyond that for which such Director was elected.
(c) If bylaws are adopted, amended or repealed at a meeting of the Board, such action is authorized only at a duly called and held meeting for which written notice of such meeting, setting forth the proposed bylaw revisions with explanations therefor, is given in accordance with these Bylaws, unless such notice is waived in accordance with these Bylaws.
Certificate of Secretary
I certify that I am the duly elected and acting Secretary of Norcanna a California nonprofit public benefit corporation; that these Bylaws, consisting of [##] pages, are the Bylaws of this Corporation as adopted by the Board of Directors on NORCANNA ; and that these Bylaws have not been amended or modified since that date.
Executed on May-17 year 2010 at El Dorado County California.